DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KEVIN OSORIO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-4407

[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 Attorney General, West Palm Beach, for 

appellee.

KLINGENSMITH, 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 address 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 gammabutyrolactone (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 gammabutyrolactone (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 informant 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 during 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 points, 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 cooperation, 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 assistance 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 at 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 enforcement, despite 

facing up to thirty years in prison and a minimum mandatory sentence for 

his charges.

2 Like trafficking in GBL, trafficking in GHB is 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 Osorio, 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 dealing with 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 obligation at any time during 

anyone’s closing, if it feels the defense could have 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 not 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 Confidential 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. (alteration 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 accomplices 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 

under 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 criminals, 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 enforcement 

agency; or
5

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 actual 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, the 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, 928 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 with 

the State). In other words, “[t]he government must be involved either 

directly as a participant or indirectly as an encourager 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 

circumstances, 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) (holding 
6

that inmate was not a State agent where the inmate “approached 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 cocaine 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. 2d DCA 

2007) (holding that victim was agent of the State where her actions were 

brought 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 corroborate 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 relationship.”

§ 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 entrapment 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 criminal acts by the activities of a confidential informant.” 

§ 914.28(2)(e), Fla. Stat. (2011).
7

2. Defense’s Comment on the State’s Failure to Call the Confidential 

Informant as a Witness

The trial court also erred 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 focused 

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 shown ‘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 accessible 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 transaction’” (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 transaction 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 informant 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 defendant 

himself” (alteration in original)). 

3. Trial Court’s Declaration that Witness Qualified as an Expert

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 that 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 the 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 telling 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 reference 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 proper 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 So. 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 process); 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. 

Commonwealth, 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 submitting 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 witness is to be considered an expert. . . . In our 

view, the trial judge should discourage procedures that may make it 

appear that the court endorses the expert status of the witness. The 

strategic value of the process is quite apparent but entirely improper.”).

When a court declares that a witness is an “expert” in his or her field, 

it confers an imprimatur of 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 the weight of the 

evidence, the credibility of the witnesses, or the guilt of the accused.” 

(emphasis added)); see also Tengbergen, 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 remark 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 court’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 controlling the proceedings and witnesses in 

the courtroom, the trial court must exercise great care in not intimating to 
10

the jury the court’s own opinion as to the weight, character or credibility 

of a witness.”). 

The problem associated with this “tender and accept” 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 the 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 

Prejudicial 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” in 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 ALIABA 839, 878 (Feb. 28-29, 2008). The commentary 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 

effort 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 place 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 discussed 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 State v. 

DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). 

Accordingly, we reverse this case for new trial. 

Reversed and Remanded for New Trial.

GROSS and GERBER, 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 nonetheless helpful and guide the reader’s understanding and 

interpretation of the provisions.