Gibson v. State, Y--379

• Court: Florida District Court of Appeals
• Writing for the Court: BOYER; SMITH, J., and SACK, MARTIN
• Citation: Gibson v. State, 325 So.2d 447 (Fla. App. 1976)
• Decision Date: 08 January 1976
• Docket Number: No. Y--379,Y--379
• Parties: Lester Louis GIBSON and Bernard Brinson, Appellants, v. STATE of Florida, Appellee.

Page 447

325 So.2d 447

Lester Louis GIBSON and Bernard Brinson, Appellants, v. STATE of Florida, Appellee.

No. Y--379.

District Court of Appeal of Florida, First District.

Jan. 8, 1976.

Rehearing Denied Feb. 6, 1976.

Richard W. Ervin, III, Public Defender; and Michael J. Minerva, Asst. Public Defender, for appellants.

Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.

BOYER, Chief Judge.

Appellants were charged and found guilty by a jury of robbery, use of a firearm in the commission of a felony, and aggravated assault. They have appealed their convictions and 15 year prison sentences, assigning as error the failure of the trial court to order a pre-trial lineup as requested by a defense motion filed six days prior to trial.

The crucial issue at trial was identity. But for the testimony of an eyewitness, W. B. Philmon, there was insufficient evidence to sustain appellants' convictions. Mr. Philmon testified that on the evening of August 9, 1974, two black males entered the motel that he was managing and, after a brief conversation robbed him. As the robbers were leaving the scene, one of them hit Mr. Philmon on the back of the head and knocked him out. The blow to Mr. Philmon's head had an understandably detrimental effect on him. The first officer to arrive at the scene of the robbery observed Mr. Philmon in a dazed and shocked condition. Further demonstrating Mr. Philmon's dazed condition is evidence that although he had recently rented a particular room to a person he told the police that the room was empty. On September 20, 1974, the Tallahassee Police Department showed Mr. Philmon nine color photographs of black males approximately 25 years of age. From those photographs Mr. Philmon identified the appellants as the individuals who had robbed him. Both defendants testified at trial that they were in Havana, Florida, on the night of the robbery. Appellant Gibson called four witnesses to corroborate his testimony while appellant Brinson produced two witnesses to corroborate his.

Appellants' pre-trial motion for a lineup requested the trial court not only to order a lineup either prior to or during the trial but also to prohibit Mr. Philmon from identifying either defendant in court in the absence of a pre-trial corporeal lineup. The trial court, after conducting a hearing on the motion, denied it. The motion was renewed immediately prior to trial and was again denied. The issue was also presented to the trial court when defense counsel objected during trial to Mr. Philmon's incourt identification of appellants. This objection was overruled. Appellants have based this appeal on the failure of the trial court to provide for a pre-trial lineup as requested.

Two fallacies in appellants' reasoning are apparent. First, appellants do not contend that the photographic lineup from which they were positively identified was unconstitutionally suggestive.

Second, the motion for...