Jackson v. State, 75--1902
| Citation | 338 So.2d 231 |
| Decision Date | 14 September 1976 |
| Docket Number | No. 75--1902,75--1902 |
| Parties | Sammie Lee JACKSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Brian H. Leslie, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY AND NATHAN, JJ.
The defendant, Sammie Lee Jackson, was found guilty by a jury of (1) robbery, and (2) aggravated battery. The charges arose out of the same criminal episode. After adjudicating Jackson guilty on both charges, the trial judge imposed a sentence of 30 years to the state prison on the robbery count and a consecutive five year sentence on the aggravated battery count.
The points presented on appeal urge (1) that the court erred in denying defendant's written motion to suppress 'all testimony as to the pre-trial identification and further preclude the State from offering any in-Court identification;' (2) that the court erred in sentencing the defendant to consecutive terms where the crimes arose out of the same 'transaction.' We hold that the trial judge ruled correctly in each instance and we affirm the judgment and sentence.
The defendant's contentions on the motion to suppress are based upon the fact that subsequent to the crimes and the time the defendant became a suspect, the police obtained from an acquaintance of the defendant a color photograph of a group of persons in which the defendant is said to have appeared and used the photograph together with black and white photographs of the defendant and others to secure from the victim the initial identification of the defendant. A strange aspect of this contention is that the defendant testified that he does not appear in the group photograph. He claimed that one of the persons in the group photograph was a person who merely happens to look like him. After obtaining this photograph, the detective selected fourteen black and white 'mug shots' from police files. Included among these photographs was a 'mug shot' of the defendant. The other thirteen photographs were of five other individuals with several duplicate photographs of each.
Lieutenant Casamayor met with the victim, Adelfa Rodriguez, on July 20, 1975, and showed her the photographs. Upon viewing them, the victim looked at the color photograph, passed it over, looked at other photographs, then returned to the color photograph in which she identified one of the group as being her assailant. She did not identify the black and white 'mug shot' of the defendant. It is conceded that the victim testified at trial that she could identify the defendant based solely on her memory without the use of any photograph. 1
We hold that affirmance upon point 1 is proper under the holding of the Supreme Court of Florida in Chaney v. State, Fla.1972, 267 So.2d 65, where, although a single photograph of the appellant was shown and it was revealed to the prosecutrix that appellant had been jailed for raping another girl, the Supreme Court held, 'In fact, it would be unreasonable to preclude the use of such a photograph for this pre-arrest purpose.' The court went on to state the following:
'We conclude that the totality of the particular circumstances of this case does not disclose that prosecutrix's identification of Appellant was fatally tainted to the point of denial of his rights of due process.' 267 So.2d at 69.
In view of the fact that the victim herein observed her assailant in a well-lit room in the afternoon prior to and during her attack and reviewed the photographs only nine days later while her memory was still fresh, there is little room for doubt that the identification of the defendant was correct. See State v. Ciongoli, Fla.App.1975, 313 So.2d 41.
The second point, which urges that the trial court erred in sentencing the defendant to consecutive...
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Henderson v. Commonwealth
...(1987) (“The lineup was conducted within four days of the crime while the witness's memory was still fresh....”); Jackson v. State, 338 So.2d 231, 232 (Fla.Dist.Ct.App.1976) (“In view of the fact that the victim herein observed her assailant ... only nine days later while her memory was sti......
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Foster v. State
...offense for which the defendant cannot be twice convicted. The aggravated battery conviction should be reversed. 1 In Jackson v. State, 338 So.2d 231 (Fla. 3d DCA 1976), dual convictions and consecutive sentences for robbery and either aggravated assault or battery were upheld in the face o......
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Henderson v. Commonwealth of Va..
...(“The lineup was conducted within four days of the crime while the witness's memory was still fresh....”); Jackson v. State, 338 So.2d 231, 232 (Fla.Dist.Ct.App.1976) (“In view of the fact that the victim herein observed her assailant ... only nine days later while her memory was still fres......
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Williams v. State, 77-1142
...actions of the defendant in confining the victims for transportation. See Estevez v. State, 313 So.2d 692 (Fla.1975); Jackson v. State, 338 So.2d 231 (Fla. 3d DCA 1976), and Moreno v. State, 328 So.2d 38 (Fla. 2d DCA It may appear that the holding here was rendered moot by the reversal of t......