Henry v. State, 4-86-2542
| Decision Date | 03 February 1988 |
| Docket Number | No. 4-86-2542,4-86-2542 |
| Parties | 13 Fla. L. Weekly 337 Benjamin HENRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Benjamin Henry, appeals from a judgment of conviction of kidnapping, robbery and aggravated battery and three concurrent sentences of twelve years' imprisonment.
It appears from the statement of the facts set forth in appellant's brief, generally approved by appellee, that on the night of February 10, 1986, Erick Sanchez was making a pizza delivery to a residence in Lauderhill where he was greeted at the house by an armed man wearing a nylon stocking mask. The man robbed him of his money and demanded a ride. During the course of the ride, Sanchez initiated a struggle with the robber, who hit Sanchez in the mouth several times with a gun. As the robber fled from the car, Sanchez pulled the mask off his head and was able to briefly see a side view of the robber's face.
At a hearing on Henry's motion to suppress lineup and in-court identification, Detective Sweeney testified she showed Sanchez a six photograph array with the explanation that she believed the suspect involved may possibly be among the photos and asked Sanchez to see if he could identify the suspect. Sanchez had previously described the suspect as wearing an outfit with a name patch over the left pocket area. Among the six photos were two in which the subject had a name patch on the left pocket area of his clothing. Sweeney testified Sanchez took less than ten minutes to identify Henry's picture; whereas, Sanchez testified at trial that it was twenty to twenty-five minutes because some were too big or too fat and others too small. In any event, the motion to suppress was denied and the case proceeded to trial.
Sanchez identified Henry at trial as the person who robbed him. He stated that, when he arrived at the house in Lauderhill to deliver the pizza, it was dark but there was a light in the back of the house in the kitchen. The robber had on a stocking mask through which Sanchez could see the structure of the robber's face. The whole episode with the robber lasted no more than 15-20 minutes. While the robber was in the passenger seat of the car, Sanchez was able to look at his face with the mask on. While driving at thirty to forty miles per hour, the two began to fight and the robber hit him in the mouth twice and broke off several of his teeth. Finally, as the robber was jumping out of the car, Sanchez grabbed the mask off of his head and was able to see the side of the robber's face that was facing him. The light was on inside the car at this time, and the high beam headlights from the car behind him reflected inside the car.
Although Sanchez testified at trial that he was positive about his identification at the photo lineup, he admitted that the fact the subject in photo # 5, which he identified as Henry, was wearing a name patch on his clothing influenced his identification. Furthermore, he admitted that his in-court identification of Henry was based on the recollection of the photo, although not entirely.
Henry presents four points for our appellate consideration, only two of which require mention. In the first point, Henry contends the out-of-court identification of him was so unnecessarily suggestive that, under the circumstances of the case, it was unreliable and error to admit it. Secondly, Henry contends that a discovery violation occurred and the trial court failed to conduct a proper Richardson 1 hearing, requiring reversal.
We have carefully considered the transcript and the record and find there was indeed a discovery violation in that latent fingerprints were taken from the car by the...
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...suggestive because the witnesses admitted selecting the photograph on the basis of the glasses. Similarly, in Henry v. State, 519 So.2d 84 (Fla.App., 1988), the witness testified that a patch on the defendant's clothing was a factor in his selection of the defendant from the photographic ar......
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...impermissibly suggestive because the witnesses admitted selecting the photograph on the basis of the glasses.Similarly, in Henry v State, 519 So 2d 84 (Fla App, 1988), the witness testified that a patch on the defendant's clothing was a factor in his selection of the defendant from the phot......