Griffin v. State, LL-187
| Decision Date | 15 May 1979 |
| Docket Number | No. LL-187,LL-187 |
| Citation | 370 So.2d 860 |
| Parties | Glen GRIFFIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
This is an appeal from appellant's conviction of the offense of burglary of a dwelling with commission of an assault upon a person within the dwelling. We agree that appellant's conviction must be reversed.
When the victim, Frazier, entered his apartment in Jacksonville he was struck by a man wearing a mask, and shortly thereafter was struck by a second man within the apartment. Felton Lee Marshall was arrested a short time later and returned to the scene by the police, where Frazier identified him as the first assailant. The appellant, Griffin, was charged with the crime along with Marshall, but tried separately.
Appellant's first Point relied upon for reversal is based upon the trial court's admission of evidence concerning Frazier's out-of-court photographic identification of appellant Griffin. The various arguments and contentions made by appellant regarding this evidence have been carefully considered and found to be without merit. The trial court correctly ruled, among other things, that the defendant has no right under the Sixth Amendment to have counsel present at out-of-court photographic displays. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).
Appellant's second Point is more serious, was properly preserved for our review, and requires reversal. The trial judge instructed the jury on "possession of stolen property", using basically the same language as that found in Florida Standard Jury Instructions, Criminal Cases, substituting the word "accused" for the word "defendant" at one point in the instruction, and with other modifications as follows:
"Proof of the unexplained possession by an Accused of property recently stolen by means of the burglary may justify a conviction of burglary with the intent to steal that property if the circumstances of the burglary and of the possession of the stolen property was (sic) considered in the light of all of the evidence in the case convince you beyond a reasonable doubt that the defendant committed the burglary." (emphasis supplied)
The issue here relates not to the form of the instruction but to the contention that it was error to give any instruction regarding possession of stolen property in that the evidence does not disclose that defendant Griffin was ever in possession of the property.
The facts disclosed by the record are that after striking and struggling with the victim somewhat in the apartment, both assailants made their escape. A short time later police officers who had been furnished with a description of Marshall discovered him lying in a field partially concealed by underbrush a distance of approximately one quarter of a mile from the victim's apartment. He had in his possession various items, watches, rings, other jewelry, as well as a gun belonging to the victim. Some of these items were removed from Marshall on the spot, and others, such as the gun, were found later on the ground where Marshall was first seen lying, and which were apparently...
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...instructions, there must be an appropriate factual basis in the record in order to give this instruction. See, e.g., Griffin v. State, 370 So.2d 860, 861 (Fla. 1st DCA 1979) (holding that in prosecution for burglary it was reversible error to give instruction regarding possession of stolen ......
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