Norfleet v. State

• Decision Date: 27 June 2017
• Docket Number: CASE NO. 1D16–1971
• Parties: John NORFLEET, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

223 So.3d 395

John NORFLEET, Appellant,

v.STATE of Florida, Appellee.

CASE NO. 1D16–1971

District Court of Appeal of Florida, First District.

Opinion filed June 27, 2017

Andy Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Kaitlin Weiss and Virginia Harris, Assistant Attorneys General, Tallahassee, for Appellee.

WETHERELL, J.

Appellant, John Norfleet, was convicted of first-degree murder and aggravated child abuse after his four-year-old daughter died following a brutal "whooping" that he gave her with a board. We find no merit in the two issues raised by Norfleet and write only to address his contention that it was fundamental error for the trial court to declare certain state witnesses to be "experts" in front of the jury.

Among the witnesses presented by the state were Ms. Haynes (DNA analyst), Dr. Pena (pediatrician), Dr. Buchsbaum (medical examiner), and Dr. Meadows (psychologist). For each of these witnesses, after eliciting testimony about their qualifications and experience, the prosecutor tendered the witness as an expert in their specific field. Norfleet's counsel did not object to the tenders, and in the presence of the jury, the trial court declared the witnesses to be experts in their respective fields. For example, the colloquy with respect to Ms. Haynes went as follows:

[PROSECUTOR]: Your Honor, at this time I would tender Ms. Haynes as an expert in the field of STR DNA testing and analysis.

[DEFENSE COUNSEL]: No objection.

THE COURT: All right. Ladies and gentlemen, the witness will be declared to be an expert in the field of DNA testing. That gives her the ability to offer an opinion which would be different than a normal witness who can only testify to an observance or a fact.

The colloquies with respect to the other experts were substantially the same.

On appeal, Norfleet argues that it was fundamental error for the trial court to declare these state witnesses to be experts in front of the jury because the declarations amounted to an impermissible comment by the court on the witnesses' credibility. In support of this argument, Norfleet relies primarily on Osorio v. State , 186 So.3d 601 (Fla. 4th DCA 2016).

In Osorio , the Fourth District held that it was error for the trial court to declare the expert status of a witness in front of the jury because doing so "confers an imprimatur of authority and credibility, thereby inordinately augmenting the witness's stature while simultaneously detracting from the court's position of neutrality." Id. at 609. We agree. See Whittaker v. State , 742 So.2d 530, 530 (Fla. 1st DCA 1999) (holding that the "the trial court's sua sponte declaration that [an officer] qualified as an expert constituted an improper comment on the credibility of the witness"); Chambliss v. White Motor Corp. , 481 So.2d 6, 8 (Fla. 1st DCA 1985) (explaining that "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"). However, because Norfleet did not object when the prosecutor tendered the witnesses as experts or when the trial court declared them to be experts in front of the jury, reversal is required in this case only if the declarations constitute fundamental error. See Mitchell v. State , 207 So.3d 369, 370 (Fla. 5th DCA 2016) (holding that even if the trial court erred when it declared a state witness to be an expert in front of the jury, the error did not rise to the level of fundamental error).

Fundamental error applies "only in rare cases ... where the interests of justice present a compelling demand for its application." Smith v. State , 521 So.2d 106, 108 (Fla. 1988). "To be fundamental, an error must ‘reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ " Harrell v. State , 894 So.2d 935, 941 (Fla. 2005) (quoting Brown v. State , 124 So.2d 481, 484 (Fla. 1960) ); see also Randall v. State , 760 So.2d 892, 901 (Fla. 2000) ("For an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to the denial of due process.").

Here, we conclude that the trial court's error in declaring the state witnesses to be experts in front of the jury was not fundamental because we have no doubt that a guilty verdict could have been—and would have been—obtained without these declarations. This conclusion is based on three independent grounds.

First, Norfleet did not dispute that the "whooping" he administered was the cause of his daughter's death; his defense was insanity.¹ Putting aside the fact that the record reflects that this defense was extremely weak, it is noteworthy that the witness he presented to support the defense (Dr. Waldman) was declared an expert in the same manner as the witnesses presented by the state to rebut that defense.

Specifically, after Norfleet's counsel "tender[ed] Dr....