GEORGES RICHARDSON v. STATE OF FLORIDA , 228 So. 3d 131 ( 2017 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    GEORGES RICHARDSON,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D15-1808
    [September 27, 2017]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 13-009911
    CF10A.
    Kevin S. McGill of GMV Law Group, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
    Assistant Attorney General, West Palm Beach, for appellee.
    PER CURIAM.
    Appellant, Georges Richardson, timely appeals his judgment and
    sentence after a jury found him guilty of a lesser included offense, robbery.
    On appeal, Richardson argues that the trial court erred in admitting a
    video tape into evidence. We disagree and affirm.
    Background
    Richardson was arrested and charged with the armed robbery of a cell
    phone store. The robbery occurred on July 15, 2013. Prior to trial,
    Richardson filed a motion in limine, arguing that the trial court should
    exclude a video tape from a nearby doughnut shop showing Richardson at
    the doughnut shop just prior to the robbery. Richardson argued that the
    State would not be able to authenticate the video. Just prior to jury
    selection, the trial court heard the motion and deferred ruling.
    During trial, the general manager of the doughnut shop testified she
    recognized the store in the photographs (taken from the video), because
    she had worked at the shop for eight years, and she recognized the four
    employees that were depicted in the photographs. She stated that there
    are eight video cameras in the shop, which store video for thirty days, then
    loop and begin recording over the older video footage. She stated that she
    had seen the video, and that it was a fair and accurate depiction of the
    shop on July 15, 2013, and that it had not been altered, edited, and
    nothing had been superimposed.
    On cross-examination, the general manager testified that she was not
    the one that removed the video from the system, that it was someone from
    loss prevention. She stated that the shop’s loss prevention employee did
    not let anyone else have access to the video, and did not work with anyone
    else. However, the general manager admitted that she did not “see with
    her own eyes” that the loss prevention employee did not let anyone else
    have access to the video. She never watched the video after receiving it
    from the loss prevention employee, but just gave it to the detective.
    As for the video system, the general manager stated that there is a
    company that takes care of the equipment, and it was the same equipment
    running on July 15, 2013 that was originally installed when the doughnut
    shop opened. She did not know if the camera or equipment had ever been
    serviced, but stated that it always worked, because if it malfunctioned, the
    loss prevention employee would be notified, and then would have notified
    her. No one has access to the camera except for one manager, but the
    general manager did not know how the date and times on the video are
    verified by the recording device. She also stated that the recording could
    not be altered from the device itself.
    Richardson objected to the admission of the video, and argued that the
    State could “not establish chain of custody with [the] witness.” He also
    argued that the general manager could not “testify as to maintenance
    upkeep and installation.” The State responded that, under the prongs for
    determining whether a video is admissible under the silent witness theory,
    the State met its burden. The trial court overruled Richardson’s objection.
    The jury found Richardson guilty of the lesser included crime of
    robbery, after which the trial court adjudicated him guilty and sentenced
    him to fifteen years in prison. Richardson gave notice of appeal.
    Appellate Analysis
    “The admissibility of photographic evidence falls within the trial court’s
    discretion; the court’s decision will not be overturned absent a showing of
    abuse.” Wagner v. State, 
    707 So. 2d 827
    , 830 (Fla. 1st DCA 1998)
    (citations omitted).
    2
    Richardson’s sole argument on appeal is that the trial court erred in
    admitting the video over his objection. Our supreme court has explained
    that,
    to be competent evidence, the films must be properly
    authenicated [sic] and shown to be a faithful representation
    of the subject, sound, movement, or other tangible or
    intangible thing which they purport to reproduce. When such
    a showing is made to the trial court, moving picture films
    should be admitted under the same rules as photographs.
    Gulf Life Ins. Co. v. Stossel, 
    179 So. 163
    , 163 (Fla. 1938). Since there must
    be proper authentication prior to the admission of a videotape, videotapes
    are not self-authenticating. See Cirillo v. Davis, 
    732 So. 2d 387
    , 388 (Fla.
    4th DCA 1999).
    There are two types of authentication methods for admitting videotapes:
    (1) through “pictorial testimony,” and (2) through the “silent witness”
    theory. Wagner, 
    707 So. 2d at 830
    . The method at issue here is the silent
    witness theory.
    As we have explained:
    Relying on cases from other jurisdictions, as well as treatises
    on evidence, the first district concluded that the videotape was
    admissible. The court applied the “silent witness” theory,
    explained in John Henry Wigmore, 3 Evidence in Trials at
    Common Law § 790, at 219-20 (Chadbourn rev.1970) as
    follows:
    With later advancements in the art of
    photography, however, and with increasing
    awareness of the manifold evidentiary uses of the
    products of the art, it has become clear that an
    additional theory of admissibility of photographs
    is entitled to recognition. Thus, even though no
    human is capable of swearing that he personally
    perceived what a photograph purports to portray
    (so that it is not possible to satisfy the
    requirements of the “pictorial testimony”
    rationale) there may nevertheless be good warrant
    for receiving the photograph in evidence. Given
    an adequate foundation assuring the accuracy of
    the process producing it, the photograph should
    3
    then be received as a so-called silent witness or
    as a witness which “speaks for itself.”
    Cirillo, 
    732 So. 2d at 388
     (quoting Wagner, 
    707 So. 2d at 830
    ). Most
    importantly, the Wagner court held that the silent witness theory can be
    used
    when the trial judge determines it to be reliable, after having
    considered the following:
    (1) evidence establishing the time and date of the
    photographic evidence;
    (2) any evidence of editing or tampering;
    (3) the operating condition and capability of the
    equipment producing the photographic evidence
    as it relates to the accuracy and reliability of the
    photographic product;
    (4) the procedure employed as it relates to the
    preparation, testing, operation, and security of
    the equipment used to produce the photographic
    product, including the security of the product
    itself; and
    (5) testimony identifying the relevant participants
    depicted in the photographic evidence.
    
    Id.
     Therefore, these are the factors we apply in this case.
    Here, there is a date and time stamp that can be seen on the video.
    There was also no evidence of tampering, and to the contrary, the general
    manger testified that the video had not been altered, edited, or
    superimposed upon. She also stated that there was only one other person
    with access to the video, and although she did not “see with her own eyes”
    that the loss prevention employee did not give anyone else access to the
    video, to the best of her knowledge, it was only that employee that accessed
    the video. Importantly, the general manager also testified that the
    recording could not be altered by the recording device.
    There was not much testimony regarding the condition and capability
    of the equipment in relation to accuracy and reliability, but the general
    manager did testify that she was never notified of any malfunction of the
    equipment. Finally, there was testimony that the video equipment was
    kept in a locked office, which only one manager, besides the witness, had
    access to enter. This establishes a level of security protecting the
    recording, as opposed to equipment in the open for anyone to have access.
    4
    Richardson cites to Cirillo to support his argument that the trial court
    erred in admitting the video. There, an employee of a private investigator
    taped the plaintiff, who was injured in an automobile accident. Id. at 387.
    The trial court admitted the video of the plaintiff, over the plaintiff’s
    objection, through the private investigator, not the employee that took the
    video. Id. at 388. In determining that the trial court erred by admitting
    the tape, this Court explained:
    People who make their living by doing surveillance have an
    incentive to find something favorable to the party employing
    them. Video cameras can be selectively turned off and on.
    Tapes can be edited or altered, and advancing technology will
    make alterations harder to detect. We agree with the plaintiffs
    that the person operating the video camera ought to be
    exposed to cross-examination under oath. The tape was not,
    therefore, admissible.
    Id. at 389.
    However, the factors in Cirillo, which led this Court to consider it
    unreliable, are not present in the instant case. There, the tape was made
    for the purpose of trial, by someone getting paid by one of the parties.
    Here, it was a business a few doors down from the store that was actually
    robbed, so it had no incentive to fabricate. Additionally, the evidence was
    comprised of surveillance that was continuous, instead of being selectively
    turned on and off, and the evidence was not collected in anticipation of a
    specific trial. Finally, although there could generally still be issues of
    tampering, here, there was testimony by the general manager that the
    video was not and could not have been tampered with prior to being
    delivered to law enforcement, and there was no suggestion or inference of
    tampering by law enforcement. Therefore, the evidence was sufficient to
    negate possible alterations and to meet the authentication factors for silent
    witness authentication.
    Thus, in reviewing these factors and the trial court’s ruling, we affirm
    the trial court ruling admitting the video into evidence.
    Affirmed.
    TAYLOR, MAY and CONNER, JJ., concur.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    5
    

Document Info

Docket Number: 15-1808

Citation Numbers: 228 So. 3d 131

Filed Date: 9/27/2017

Precedential Status: Precedential

Modified Date: 1/12/2023