Grant v. State

• Decision Date: 13 November 1980
• Docket Number: No. 52886,52886
• Citation: 390 So.2d 341
• Parties: Phillip R. GRANT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 341

390 So.2d 341

Phillip R. GRANT, Petitioner, v. STATE of Florida, Respondent.

No. 52886.

Supreme Court of Florida.

Nov. 13, 1980.

Richard L. Jorandby, Public Defender, and Jerry L. Schwarz and James K. Green, Asst. Public Defenders, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen., and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for respondent.

SUNDBERG, Chief Justice.

This is a petition for writ of certiorari to review a per curiam decision of the District Court of Appeal, Fourth District, reported at 352 So.2d 184. Conflict has been demonstrated with Gordon v. State, 145 So.2d 896 (Fla. 2d DCA 1962), which holds that an information charging a violation of section 805.01, Florida Statutes (1973), must specifically allege an intent to secretly confine. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

On April 18, 1975, petitioner was charged by information with false imprisonment, sexual battery and robbery. The case proceeded to trial on October 7, 1975, where petitioner was found guilty of all charges. He was sentenced to consecutive terms of imprisonment for the three offenses, totaling ninety-six years, two hundred ninety-five days.

At 1:00 a. m. on April 2, 1975, Nancy Dawn Campbell approached her car to go home after a long day's work. After Nancy placed the keys in the ignition, the car door flew open and a young man stormed into the driver's seat. A struggle ensued during which Ms. Campbell was hit in the face and threatened with death. The assailant finally forced Nancy into the back seat and ordered her to put a pillowcase over her head. He then drove off, holding the victim down by her wrists.

Their journey ended in a secluded orange grove, where Ms. Campbell was raped and robbed. During the sexual assault, Nancy removed the pillowcase in order to resist, thus enabling her to get a close and sustained look at her attacker. Later, Ms. Campbell was raped again by a man whom the original assailant picked up after leaving the orange grove. Both assailants fled on foot shortly thereafter.

Five or six days later, Ms. Campbell went to the Orange County Sheriff's Department and viewed a photographic lineup consisting of five pictures of possible suspects. She was unable to make a positive identification, but she did pick out two pictures which looked familiar. One of those two pictures was that of petitioner. On April 9, 1975, Ms. Campbell went to the Orange County jail to view a physical lineup. Shortly before the lineup, she encountered another rape victim with a photo array who was awaiting her turn to view a physical lineup. Ms. Campbell looked at these photos but made no comment about them either to the other girl or to the police. Ms. Campbell testified that she thinks, but is not positive, that these were the same photographs she saw previously.

During the physical lineup Ms. Campbell positively identified petitioner as her first assailant. She also asked to have a closer look at the suspects so that she might be able to spot a tiny scar and "dot" which the rapist had on his right cheek. But because of the peculiar manner in which the lineup room was lighted, a closer examination failed to reveal the blemishes.

On the first day of trial a hearing was held outside the presence of the jury on petitioner's motion to suppress Ms. Campbell's out-of-court identification. Over defense counsel's strenuous objection, petitioner was brought before Ms. Campbell, at least in part for the purpose of giving Ms. Campbell the opportunity to locate the scar and dot which she had earlier failed to find. Ms. Campbell reaffirmed that petitioner was her attacker and stated that she now saw the scar, but not the dot. Later during the trial, Ms. Campbell once again identified petitioner and finally recognized the dot.

Petitioner challenges his convictions on four grounds, two of which merit only summary discussion. He first contests the seizure of tangible evidence pursuant to a search warrant allegedly based upon the unsworn statement of a police officer. The trial judge found to the contrary that the search warrant was grounded on a verified affidavit, and we believe the record supports his finding. Petitioner's second point, that the trial court erred in permitting the state to comment on petitioner's failure to testify, was waived by counsel's failure to move contemporaneously for a mistrial. Clark v. State, 363 So.2d 331 (Fla.1978).

Of somewhat greater significance is petitioner's contention that evidence of Ms. Campbell's out-of-court identifications should have been suppressed. Petitioner argues that the lineup procedures employed were unnecessarily suggestive and that the identifications derived therefrom were unreliable. For the following reasons, we do not agree.

The primary evil to be avoided in the introduction of an out-of-court identification is a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). "Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous." Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 382. But as the analysis has evolved, a suggestive confrontation procedure, by itself, is not enough to require exclusion of the out-of-court identification; the confrontation evidence will be admissible if, despite its suggestive aspects, the...