Opinion
No. 91-2603.
December 30, 1992. Rehearing, Rehearing En Banc and Certification Denied March 3, 1993.
Louis M. Jepeway, Jr. of Jepeway and Jepeway, P.A., Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.
A jury found appellant guilty of attempted second degree murder of a law enforcement officer, grand theft, resisting arrest with violence and depriving a law enforcement officer of his weapon. The trial court designated appellant's conviction of attempted second degree murder of a law enforcement officer as a capital offense and sentenced him to life imprisonment with a mandatory minimum sentence of twenty-five years. The trial court also sentenced him to five years imprisonment on each of the other counts running consecutively to each other. We affirm appellant's convictions and the sentences imposed. However, we remand this case to correct the mandatory minimum provision of the sentencing order for appellant's conviction of attempted second degree murder of a law enforcement officer. We direct the trial court to strike the words "CAPITAL OFFENSE" and section 775.082(1), Florida Statutes (1991), from the order and to designate section 775.0825, Florida Statutes (1991), as the basis for appellant's twenty-five year mandatory minimum sentence. See Newton v. State, 603 So.2d 558, 559-60 (Fla. 4th DCA 1992).
Although appellant has failed to demonstrate reversible error as to his convictions, one issue merits comment. Appellant contends that the trial court erred when it admitted testimony by a police officer concerning his use of force investigation. Appellant asserts three grounds for reversal on this issue. First, he argues that the trial court permitted inadmissible hearsay when the officer testified that "the defendant was trying to discharge Trooper Durdan's weapon into his mid-section." The trial court, however, sustained appellant's objection to this testimony and appellant did not move for a mistrial or request a curative instruction. Next appellant argues that the investigating officer's testimony bolstered the credibility of the arresting officers. The investigating officer's testimony, however, was limited to his investigation and to the reasonableness of the amount of force used during the arrest. His testimony did not relate to the credibility of the officers but rather related only to the propriety of their actions. Finally, appellant cites Lozano v. State, 584 So.2d 19 (Fla. 3d DCA 1991), rev. denied, 595 So.2d 558 (Fla. 1992), and asserts that the testimony constituted evidence of departmental policy concerning the use of force. Appellant failed to raise this ground in the trial court and therefore cannot raise it on appeal. Notwithstanding appellant's failure to preserve this point for appeal, we note that the investigating officer did not refer to departmental policy concerning the use of force. He simply testified that "[a]ny time a trooper's life is in imminent danger or the life of a citizen is in imminent danger, we can impose any type of force necessary to stop that threat."
Accordingly, we affirm appellant's convictions. However, we remand this cause to the trial court with directions to correct the sentencing order for appellant's conviction of attempted second degree murder of a law enforcement officer as stated above.
AFFIRMED and REMANDED for correction of sentencing order.
WALDEN, JAMES H., Senior Judge, concurs.
ANSTEAD, J., concurs in part and dissents in part with opinion.
I agree with the majority opinion in all respects, except for its approval of the admission of the Florida Highway Patrol's internal investigation and conclusion on the propriety of the police officers' use of force in this case. Prior to the admission of the internal investigation officer's testimony, the defendant made a comprehensive objection to the admission of such evidence. The court overruled the objection, and thereafter permitted the officer to describe his investigation, his interviews with the officers involved, his consultation with the state attorney, and, more importantly, his conclusion that the officers' use of force was justified and, in fact, the use of deadly force would have been justified.
Obviously this testimony, especially the conclusion supporting the officers' account of the incident, related to and bolstered the officers' credibility. This is like allowing the results of an administrative proceeding to be admitted to prove an issue in a judicial proceeding, as for example, admitting the outcome of traffic court proceedings to prove fault in civil court proceedings. We, and other courts, have consistently rejected the admission of such evidence:
As the Fifth District expressed it in Bowles v. State, 381 So.2d 326, 328 (Fla. 5th DCA 1980):
Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy. A jury is inclined to give great weight to their opinions and the prosecutor in his final argument asked the jury to do just that.
Sub judice, in closing argument, the prosecutor argued that "if Harold Clements shot and used that gun then this defendant is not guilty."
It is clear that the officer's opinion was sought to bolster Harold Clement's credibility vis-a-vis that of the defendant and we conclude, under the facts here, that such was an improper invasion of the jury's exclusive province. See Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984).Gianfrancisco v. State, 570 So.2d 337, 338 (Fla. 4th DCA 1990).
The use of this testimony was not only improper, it was unnecessary, since each of the officers actually involved in the incident testified in detail. It is their testimony upon which we base our rejection of appellant's claim that the evidence was insufficient to support his conviction. Properly, it should have been upon the jury's evaluation of this testimony, and the other evidence presented, that the case was decided, rather than permitting the state to bolster its case with the police agency's evaluation of the same evidence.