### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

KEVIN OSORIO
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 13

- 4407

[ March 2, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Barbara McCarthy , Judge; L.T. Case No. 11017015

CF10A

.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina

Jimenez

- Orosa, Assistant Att orney General, West Palm Beach, for appellee.

K LINGENSMITH

, J

.

Kevin Osorio appeals his convictions for possession of cannabis under twenty (20) grams, possession of drug paraphernalia, and trafficking in

gamma

- butyrolactone (“GBL”). 1 We write to addres s three of the issues Osorio has raised on appeal.

1 The Legislature has defined the crime of trafficking in GBL as follows:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 1 kilogram or more of gamma

butyrolactone (GBL), as described in s. 893.03(1)(d), or any mixture containing gamma

- butyrolactone (GBL), commits a felony of the first degree, which felony shall be known as “trafficking in gamma

butyrolactone (GBL)”

. . . .

§ 893.135(1)(i)1., Fla. Stat. (2011).2

First, Osorio claims that the trial court erred by ruling that testimony regarding conversations between Osorio and the State’s confidential informant, and among detectives and the informant, was inadmissible hearsay evidence. He argues that because the informan t acted as an agent of the State, the informant’s statements were admissible as statements of
a party

- opponent under section 90.803(18)(d), Florida Statutes. Second, he asserts that the trial court abused its discretion by preventing him from mentioning d uring closing argument the State’s decision not to call the informant as a witness. Third, he contends that the trial court erred when it declared a testifying forensic chemist to be an expert in the presence of the jury. We agree with Osorio on these po ints, and therefore reverse for

a new trial.

Osorio found himself in possession of a large amount of the prescription drug Xyrem, a liquid medication used for narcolepsy, after his former

roommate moved out and left the substance in the residence. Not knowing what the drug was, Osorio contacted a former co

- worker to obtain more information. Osorio put a sample of the liquid into vials supplied by the

co

- worker so the co

- worker could test it for verification purposes. Osorio

later learned that the liquid was gamma

- hydroxybutyric acid, otherwise

known as “GHB

, ” a chemical derivative of GBL. 2

A few months later, the co

- worker agreed to become a confidential informant after he was taken into custody for trafficking in cocaine. In exchange for his coo peration, he was told that any assistance he gave to law enforcement would be presented to the state attorney’s office as a factor for consideration at the time of his sentencing. It was during the course of his participation in this substantial assistanc e program that he offered Osorio’s name and agreed to help detectives build a case against

him.

Shortly thereafter, the police recorded a series of phone calls wherein

Osorio and the co

- worker arranged a transaction to sell the GBL. When

Osorio arrived a t the location designated for the sale, he was arrested and found with two cell phones, marijuana, a scale, and several vials of GBL

in his vehicle. Before Osorio’s trial, the co

- worker was sentenced to probation due to his substantial assistance to law e nforcement, despite facing up to thirty years in prison and a minimum mandatory sentence for his charges.

2 Like trafficking in GBL, trafficking in GHB i s also a first degree felony. § 893.135(1)(h)1., Fla. Stat. (2011). Both GBL and GHB are classified as schedule

I controlled substances. § 893.03(1)(d), Fla. Stat. (2011).3

During cross

- examination, the trial court refused to allow one of the detectives to testify as to whether the co

- worker told him that he had

received a vial of liquid from Osorio in order to identify the substance. When Osorio testified, the trial court prevented him from recounting

conversations with the co

- worker, which included the co

- worker’s statements about what to do with the vials he gave to Os orio, and details concerning the potential drug transaction.

During closing argument, when Osorio’s counsel tried to make a point

about the State’s decision not to call the informant as a witness in the trial, the trial judge held a sidebar conference sua sponte, and the following exchange ensued:

THE COURT: Let me go through a couple of issues. Counsel

should not be commenting on the other side’ s not bringing

witnesses in who are available to both sides. Haliburton

. [ 3 ]

[ DEFENSE COUNSEL ]: In dea ling w ith entrapment, I

shouldn’ t be interrupted in this fashion, particularly where there was no objection on behalf of the State. This is very prejudicial to my client.

THE COURT: The Court has an oblig ation at any time during anyone’ s closing, if it feels the defense could ha ve called the CI also, and that’ s why I called you sidebar. Okay? And that’ s why I am noting for the record it is improper. Whether they called him or not, you could have called him. He was sitting

out there

.

[ DEFENSE COUNSEL ]: He wasn’ t a listed defense witness.

[ PROSECUTOR ]: Judge, the only thing I was going to point out, there was no evidence put on that he was sitting out in the hall and I would certainly object to that evidence

--

. . . .

THE COURT:

. . . As to him being out there, and being called, it’s improper and I’ d like you to move on and I’ ll note your objection for the record.

3 Haliburton v. State , 561 So. 2d 248 (Fla. 1990).4

The trial court did not strike the comments regarding the State’s choice

not to call the co

- worker as a witness, and did no t give a curative

instruction to the jury regarding these comments. Osorio was ultimately convicted of trafficking in GBL, possession of marijuana under twenty (20) grams, and possession of drug paraphernalia. This appeal followed.

1. Admissibility of Conf idential Informant ’s Statements

In general, rulings on the admission or exclusion of evidence are reviewed for an abuse of discretion, “limited by the rules of evidence.”

Lucas v. State , 67 So. 3d 332, 335 (Fla. 4th DCA 2011) (quoting Tengbergen v. State

, 9 So. 3d 729, 736 (Fla. 4th DCA 2009)). “[W]hether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Id. (a lteration in original) (quoting Burkey v. State, 922 So. 2d 1033, 1035 (Fla. 4th DCA 2006)

.

As Judge Learned Hand once wrote, “Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon ac complices because the criminals will almost certainly proceed covertly.” United States v. Dennis , 183 F.2d 201, 224 (2d Cir. 1950). This case provides an opportunity to explain the relationship that exists between the State and those informants acting

un der substantial cooperation agreements.

Under section 914.28(2):

(a) “Confidential informant” means a person who cooperates with a law enforcement agency confidentially in order to protect the person or the agency’s intelligence gathering or investigative efforts and:

1. Seeks to avoid arrest or prosecution for a crime, or mitigate punishment for a crime in which a sentence will be or has been imposed; and

2. Is able, by reason of his or her familiarity or close association with suspected crim inals, to:

a. Make a controlled buy or controlled sale of contraband, controlled substances, or other items that are material to a criminal investigation;

b. Supply regular or constant information about suspected or actual criminal activities to a law enfo rcement

agency; or5 c. Otherwise provide information important to ongoing criminal intelligence gathering or criminal investigative

efforts.

§ 914.28(2)(a), Fla. Stat. (2011).

Generally, an agent is one who consents to act on behalf of some person, with that person’s acknowledgment, and is subject to that person’s

control. Goldschmidt v. Holman , 571 So. 2d 422, 424 n.5 (Fla. 1990) (“Essential to the existence of an ac tual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent’ s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.”). When determining whether private citizen confidential informants have acted in a manner that makes them agents of the government, th e court must apply a similar test when asking “whether [the informant], in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state . . . .” Coolidge v. New Hampshire , 403 U.S. 443, 487 (1971). This includes examining the purpose of the conduct in which the actor engaged.

Under certain situations

, informants can be considered agents of the State, especially when acting in accordance with agreements made with

authorities. See Davis v. State , 92 8 So. 2d 1089, 1125 (Fla. 2005) (holding that defendant failed to establish jailhouse informant was acting as agent of the State where informant did not testify at trial, and there was conflicting testimony as to whether informant was negotiating a deal wi th the State). In other words, “[t]he government must be involved either directly as a participant or indirectly as an en courager of the private

citizen’ s actions before we deem the citizen to be an instrument of the

state.” Treadway v. State , 534 So. 2d 825, 827 (Fla. 4th DCA 1988) (quoting United States v. Walther , 652 F.2d 788, 791 (9th Cir. 1981)). The

Second District has held:

The test for determining whether private individuals are agents of the government is whether, in consideration of the

circu mstances, the individuals acted as instruments of the state. To determine whether a private individual acts as an instrument of the state, courts look to (1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or

further his own ends.

State v. Iaccarino , 767 So. 2d 470, 475 (Fla. 2d DCA 2000) (citations omitted); see also Dufour v. State , 495 So. 2d 154, 159 (Fla. 1986) (holding6

that inmate was not a State agent where the inmate “a pproached the authorities on his own initiative,” and, after speaking with authorities, the inmate “was neither encouraged nor discouraged from obtaining further information”).

Here, the police encouraged the co

- worker’s involvement in the investigation, which involved setting up a controlled buy with Osorio as a target offender. 4 He agreed to arrange a drug purchase from Osorio in hopes of securing a favorable report from detectives and obtaining substantial assistance credit in his prosecution for cocai ne trafficking. In so doing, he was working under the supervision and direction of the detectives working the case.

The co

- worker’s statements to both Osorio and the detectives were made in furtherance of that objective. He engaged in these interactions with Osorio at the behest of the detectives with the hope of obtaining a possible future benefit. State v. Moninger , 957 So. 2d 2, 5 (Fla. 2 d DCA 2007) (holding that victim was agent of the State where her actions were

bro ught about by officer’ s suggestions and encouragement, law enforcement had an interest in obtaining the evidence to support a criminal prosecution, and nothing suggested that victim, of her own volition, contemplated obtaining the evidence in order to corr oborate the crime, or for any private purpose).

A confidential informant working under the supervision and direction of an investigating law enforcement agency is an agent of the State; therefore, we agree with Osorio that the co

- worker acted on behalf of the State and within the scope of his agency. As such, the hearsay exception provided by section 90.803(18) applies to the co

- worker’s out

- of

- court statements, which under the evidence code are not inadmissible if they are offered against a party and are : “ [ t ] he party’s own statement[s] in either

an individual or a representative capacity,” or “statement[s] by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationsh ip.” § 90.803(18)(a), (d), Fla. Stat. (2011). The court’s evidentiary ruling denied Osorio the ability to have these statements presented to the jury, thereby unduly restricting him in the pursuit of his entrap ment defense. This was

error. See Garland v. State , 834 So. 2d 265, 266

- 67 (Fla. 4th DCA 2002) (recognizing that in a criminal case, the state was a party

- opponent of the

defendant ).

4 “‘Target offender’ means the person suspected by law enforcement personnel to be implicated in crimina l acts by the activities of a confidential informant.” § 914.28(2)(e), Fla. Stat. (2011).7

2. Defense ’s C omment on the State’s F ailure to C all the Confidential

In formant as a W itness

The trial court also erre d by prohibiting defense counsel from commenting on the State’s failure to call the co

- worker as a witness. The witness’s identity and his role as an informant were known to both the

State and the defense before trial. While the trial court properly focu sed

on whether the co

- worker was available to both parties in deciding whether to allow the defense to comment on the State’s decision not to call him,

Haliburton , 561 So. 2d at 250 (stating that when “witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness.” (quoting State v. Michaels

, 454 So. 2d 560, 562 (Fla. 1984))), under the circumstances in this case the trial court improperly concluded that the informant was equally available to both parties.

We have previously stated that “it is permissible in argument to comment on a party’ s failure to call a witness where it is show n ‘that the

witness is peculiarly within the party’ s power to produce and the testimony

of the witness would elucidate the transaction.’” Jean

– Marie v. State , 993 So. 2d 1160, 1161 (Fla. 4th DCA 2008) (quoting Haliburton , 561 So. 2d at 250). A witness is “peculiarly within the party’s power to produce” when “the witness was an informer associated with the government in developing the case against the defendant and there was no indication at trial of any

break in the association.” Datilus v. State , 128 So . 3d 122, 125 (Fla. 4th DCA 2013) (quoting Martinez v. State

, 478 So. 2d 871, 872 (Fla. 3d DCA 1985)). By virtue of his status as an agent of the State, the State had the ability to produce the co

- worker as a witness for trial, thus making him peculiarly within the State’s control and susceptible to comment by defense counsel when not called to testify for the prosecution. See Terry

v. State , 668 So. 2d 954, 963

- 64 (Fla. 1996) (finding no indication from the record that the informant “was not equally acce ssible to both parties,” and noting that the defense called the informant to testify, thereby undermining the argument that the informant was “‘peculiarly within the [state’ s] power to produce’ and that his testimony would have ‘elucidate[d]

the transactio n’” (alteration in original)); see also Molina v. State , 71 So. 3d 234, 237 (Fla. 2d DCA 2011) (holding that where the confidential informant was “peculiarly within the State’s power to produce” and their testimony would have further “explain[ed] the trans action for which [the defendant] was being charged,” the defense should not have been prevented from commenting on “the State’s failure to call the [confidential informant] as a witness”).8

Because the co

- worker directly connected law enforcement to Osorio and facilitated the drug buy, his testimony would have served to elucidate

the transaction. See Harris v. State , 636 So. 2d 137, 137 (Fla. 3d DCA 1994) (affirming trial court’s decision to prohibit comment on State’s

failure to call confidential informan t where, despite the fact that informant was within the State’s “power to produce,” their “testimony would not have ‘elucidate[d] the transaction’” because the informant “had only a minimal relationship with the case at all and none whatsoever with the def endant himself” (alteration in original)).

3. Trial Court’s D eclaration that W itness Qualified as an E xpert

Finally, we address the trial court’s declaration to the jury that the State’s testifying forensic chemist was “an expert in the field, and [ could ] give opinion testimony, and hypotheticals in the field of being a forensic

chemist.” In Tengbergen

, we explained that the suggested procedure is for a trial court to refrain from openly declaring that a witness is an expert:

While Tengbergen contends th at the court erred by not “qualifying” McNevin as an expert, the trial court determined that the requirements for the introduction of expert testimony were met when it overruled the defense objection that McNevin was not qualified as an expert. Although t he court did not explicitly state to the jury that it found the witness qualified
as an expert, the court reasonably followed the suggestion of this court that a court should refrain from te lling the jury that

the witness’

s testimony is being admitted as “ expert testimony,” because that may be tantamount to the court commenting on the credibility of a witness

. See Alexander v.

State , 931 So. 2d 946, 951 (Fla. 4th DCA 2006) (“the better procedure would have been to permit the witness to testify

without refe rence to his or her status as an expert”). See also Chambliss v. White Motor Corp ., 481 So. 2d 6, 8 (Fla. 1st DCA 1985) (“[I]t is not necessary for the court to state that the witness is qualified as an expert. In fact, it is questionable whether it is pr oper procedure for a court to expressly declare a witness an ‘expert’ because the jury may infer from such declaration that the court is placing its approval on the opinions of the witness.”). The court appropriately ruled, and

it committed no error.

9 S o. 3d at 737 (emphasis added).9

Many courts from other jurisdictions have similarly concluded that such practices are disfavored. See, e.g., United States v. Johnson , 488 F.3d 690, 697

- 98 (6th Cir. 2007) (noting its disapproval of the tender/
acceptance p rocess); United States v. Bartley , 855 F.2d 547, 552 (8th Cir. 1988) (stating that “[a]though it is for the court to determine whether a witness is qualified to testify as an expert, there is no requirement that the court specifically make that finding in open court upon proffer of the offering party. Such an offer and finding by the Court might influence the jury in its evaluation of the expert and the better procedure is to avoid an acknowledgment of the witnesses’ expertise by the Court”); Luttrell v.

C ommonwealth , 952 S.W.2d 216, 218 (Ky. 1997) (stating that “[g]reat care should be exercised by a trial judge when the determination has been made that a witness is an expert. If the jury is so informed such a conclusion obviously enhances the credibility of that witness in the eyes of the jury. All such rulings should be made outside the hearing of the jury and there should be no declaration that the witness is an expert”); State v. McKinney , 917 P.2d 1214, 1232

- 33 (Ariz. 1996) (remarking that “[b]y submi tting the witness as an expert in the presence of the jury, counsel may make it appear that he or she is seeking the judge’s

endorsement that the witnes s is to be considered an expert

. . . . In our view, the trial judge should discourage procedures that m ay make it appear that the court endorses the expert status of the witness. The strategic value of the process is quite ap parent but entirely improper

. ”).

When a court declares that a witness is an “expert” in his or her field, it confers an imprimatur o f authority and credibility, thereby inordinately augmenting the witness’s stature while simultaneously detracting from the court’s position of neutrality. See § 90.106, Fla. Stat. (2011) (“A judge may not sum up the evidence or comment to the jury upon t he weight of the evidence, the credibility of the witnesses , or the guilt of the accused.” (emphasis added)); see also Teng berg en , 9 So. 3d at 737 (noting that a trial court should not characterize witness testimony as expert testimony

because it effects the witness’ credibility in the eyes of the jury); Jacques

v. State , 883 So. 2d 902, 905 (Fla. 4th DCA 2004) (stating that “[w]hile a judge may take some initiative to clear up uncertainties in the issues in a case, it is error for the judge to make any re mark in front of the jury that might be interpreted as conveying the judge’s view of the case or an opinion on the weight, character, or credibility of the evidence”); Whitaker v. State

, 742 So. 2d 530, 530 (Fla. 1st DCA 1999) (holding that “the trial cour t’s sua sponte declaration that [the witness] qualified as an expert witness constituted an improper comment on the credibility of the witness”); Fogelman v. State , 648 So. 2d 214, 219 (Fla. 4th DCA 1994) (“While a trial court has great latitude in control ling the proceedings and witnesses in the courtroom, the trial court must exercise great care in not intimating to10

the jury the court’s own opinion as to the weight, character or credibility of a witness.”).

The problem associated with this “tender and a ccept” process has been specifically identified in the advisory committee notes to Federal Rule of Evidence 702, which establishes when a qualified expert may testify as

such in the federal courts. The committee stated:

The use of the term “expert” in th e Rule does not, however, mean that a jury should actually be informed that a qualified witness is testifying as an “expert.” Indeed, there is much to be said for a practice that prohibits the use of the term “expert” by both the parties and the court at trial. Such a practice “ensures that trial courts do not inadvertently put their stamp of authority” on a witness’ s opinion, and protects against the jury’s being “overwhelmed by the so

- called ‘experts.’” Hon. Charles Richey, Proposals to Eliminate the

Pr ejudicial Effect of the Use of the Word “Expert” Under the Federal Rules of Evidence in Criminal and Civil Jury Trials , 154 F.R.D. 537, 559 (1994) (setting forth limiting instructions and a standing order employed to prohibit the use of the term “expert” i n jury trials).

Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (emphasis added).

The American Bar Association has also frowned upon the “tender and accept” process before the jury, opining that “[t]he court should not, in the presence of the jury, declare that a witness is qualified as an expert or to render an expert opinion, and counsel should not ask the court to do so.”

Trial Evidence in the Federal Courts: Problems and Solutions , SN063 ALI

ABA 839, 878 (Feb. 28

- 29, 2008). The comme ntary accompanying this provision on expert testimony states:

It is not uncommon for a proponent of expert testimony to tender an expert witness to the court, following a recitation of the witness’s credentials and before eliciting an opinion, in an

effor t to secure a ruling that the witness is “qualified” as an expert in a particular field. The tactical purpose, from the proponent’s perspective, is to obtain a seeming judicial endorsement of the testimony to follow. It is inappropriate for counsel to pl ace the court in that position

.11

Id. (emphasis added). 5

While this court and others have repeated the recommendation that trial courts ought to refrain from directly declaring the expert status of a witness in front of the jury, we recognize this has been interpreted by some as merely a suggestion of judicial practice, and not a hard

- and

- fast rule. Tengbergen , 9 So. 3d at 737; see also Alexander , 931 So. 2d at 951. Today we clarify that such practice is impermissible. Judges must not use their position of authority to establish or bolster the credibility of certain trial

witnesses.

The State has not shown that the errors discusse d above were harmless because, as the beneficiary of the errors, it cannot “prove beyond a reasonable doubt that the error[s] complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that

the error contributed to the conviction.” Farrell v. State , No. 4D13

- 2589, 2015 WL 2214148, at *4 (Fla. 4th DCA May 13, 2015) (quoting S tate v.
DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986)).

Accordingly, we re verse this case for new trial.

Reversed and Remanded for New T rial.

G ROSS and G ERBER
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5 Trial Evidence in the Federal Courts: Problems and Solutions was prepared by the American Law Institute and later adopted and reprinted by the ABA. SN063

ALI

- ABA, at 842. Although it includes the disclaimer that “[t]he accompanying commentary has not been adopted by the ABA House of Delegates and, as such, should not be construed as representing the policy of the Association,” id. , the

comments are n onetheless helpful and guide the reader’s understanding and interpretation of the provisions.