
    Maurice POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 95-3903.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1997.
    Rehearing and Rehearing En Banc Denied May 5, 1997.
    James L. Eisenberg, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, Don M. Rogers and Mauricette Giselle August, Assistant Attorneys General, West Palm Beach, for appellee.
   POLEN, Judge.

Maurice Poole appeals his conviction for trafficking cocaine in excess of twenty-eight (28) grams and aggravated battery on a police officer, raising four points on appeal. We affirm.

We find no error in the denial of Poole’s motion to disqualify the trial judge, as we do not believe the facts alleged by Poole in his motion would lead a reasonably prudent person to believe they would not get a fair trial, and at most created a subjective fear. See Fischer v. Knuck, 497 So.2d 240 (Fla.1986) (asserted facts in a verified motion to disqualify a judge must be reasonably sufficient to create a well founded fear in mind of party that he or she will not receive a fair trial, rather than just a subjective fear). We also affirm the trial court’s denial of Poole’s motion to suppress as the officer had probable cause to search Poole’s vehicle. See Minnis v. State, 577 So.2d 973 (Fla. 4th DCA 1991) (police officers were not required to obtain warrant to search paper bag found in trunk of automobile where they had probable cause to believe, based on their observations confirming portions of confidential informant’s detailed tip, that drugs were located some place in vehicle or on driver’s person). We also agree with the trial court that the state proved Poole possessed the requisite amount of cocaine to sustain a conviction for trafficking.

Finally, we affirm based on a consideration of Poole’s fourth point on appeal, in which he alleges it was error to allow a courthouse hallway demonstration of the use of 10 x 50 binoculars to rebut Poole’s expert’s testimony on the scope of view of the 10 x 50 binoculars. We find that the allowance of the demonstration constituted harmless error. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We write, however, to caution prosecutors against seeking, and trial judges against allowing, such demonstrations when the circumstances are not sufficiently similar to the event being reenacted. The binoculars used by the officer to observe Poole were used outside, before sunset, from a different angle, with shrubbery in the vicinity; rather than in a clear, artificially lit hallway. In addition, the binoculars used in the hallway, although the same power of magnification, were not the exact ones used by the officer. We thus hold it was error to allow the demonstration, but we are of the view this error did not contribute to appellant’s conviction beyond a reasonable doubt. DiGuilio.

SHAHOOD, J., concurs.

PARIENTE, J., concurs in part and dissents in part with opinion.

PARIENTE, Judge,

concurring in part and dissenting in part.

I would reverse for a new trial because the trial court abused its discretion when it granted the state’s request to allow jurors to participate in an uncontrolled and undocumented courthouse hallway demonstration as part of the state’s rebuttal case. The binoculars used in this demonstration were not in evidence, and so we have no way of determining on appeal whether the binoculars were substantially similar to the binoculars used by the police officer who conducted the surveillance.

I know of no authority, under either the Florida Rules of Criminal Procedure or established case law, which would allow jurors to become active participants in an experiment requested by the state or by the defense. Allowing juror participation in an uncontrolled and undocumented experiment would establish dangerous precedent. There are established ways in which jurors receive evidence, and this method was not one of those.

In essence, the jurors here became witnesses, forming subjective impressions about what they could see at 200 feet. Defendant was obviously deprived of any opportunity for cross-examination. Rather than bringing in its own witness on rebuttal, who would be subject to cross-examination, the state took an impermissible short cut.

The majority agrees that allowing the experiment constituted error. I respectfully disagree with my colleagues that allowing this demonstration constituted harmless error. Because neither the binoculars used by the jurors were in evidence nor was the demonstration recorded, in my opinion the state is unable to sustain its burden under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), of establishing that this error was harmless beyond a reasonable doubt.

I do not see how we can categorically state that the error was harmless when the state conceded that a central issue in this case was what the police officer could see from 200 feet with the binoculars he used. The credibility of the police officer was thus an important issue in the case. The evidence was not cumulative but offered by the state to rebut testimony of defendant’s expert. Lastly, as pointed out by the majority, the demonstration was performed under substantially dissimilar circumstances.

As to the other points raised, I concur in the majority’s analysis. 
      
      . Appellant decries what we would characterize as the “casual demeanor" of the judge during the course of the suppression hearing, when no jury was present. While we do not condone what the judge did, as it certainly does not lend itself to the dignity of the bench, we do not see how it could affect defendant any more than it would the state, in terms of whether the judge was paying sufficient attention to the proceedings. As to the comments made before the conclusion of the evidence, we liken them to mental impressions held insufficient to warrant disqualification of the judge in Wargo v. Wargo, 669 So.2d 1123 (Fla. 4th DCA 1996).
     