Jones v. State
| Decision Date | 16 December 2004 |
| Docket Number | No. SC03-1363.,SC03-1363. |
| Citation | 889 So.2d 806 |
| Parties | Nathaniel Charles JONES, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Bennett H. Brummer, Public Defender and Billie Jan Goldstein, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Richard L. Polin, Bureau Chief, Criminal Appeals and Erin Lyn Kinney, Assistant Attorney General, Miami, FL, for Respondent.
We initially accepted jurisdiction to review State v. Jones, 849 So.2d 438 (Fla. 3d DCA 2003), a decision alleged to expressly construe a provision of the state or the federal constitution. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we have now determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is hereby dismissed.
It is so ordered.
Despite the clear constitutional authority to review the instant matter based upon the Third District's express construction of the right to counsel provision of the Florida Constitution, see art. V, § 3(b)(3), Fla. Const., this Court has decided against exercising its discretion to consider and resolve the case on the merits. I certainly understand and respect the majority's decision but, in my view, discharging jurisdiction here is a mistake. A full analysis of the Third District's decision is not only worthy of this Court's discretion, but such consideration is necessary to ensure that the district court's invocation of certain cases from other states — cases which, in my view, violate fundamental right to counsel principles — does not cloud the law in this state on this very important constitutional protection. By discharging jurisdiction, this Court fails to seize the opportunity to satisfy its responsibility to ensure the integrity of criminal proceedings in this state, and simply delays for another day consideration of a question now squarely before the Court. We also create the very real risk that constitutional violations may remain in the dark through per curiam decisions.
The district court below considered whether the right to counsel guaranteed by Florida's Constitution requires counsel's presence when a witness is shown a videotaped lineup of a criminal defendant for identification purposes. The crucial facts bearing on the instant analysis are as follows. On the evening of November 6, 2000, Officer Rubinson of the Miami-Dade police department responded to an armed robbery call and observed a white car matching the description of the suspects' car fleeing the scene. As the car passed the officer, he observed the driver for approximately one second before making a u-turn and giving chase. The chase ended when the officer crashed his police cruiser. One week later, Rubinson saw a "career criminal auto theft" BOLO flyer distributed by the auto theft task force at department roll call. The flyer had six photographs, including a photograph of the petitioner, Jones, whom Rubinson recognized as the driver of the fleeing car.
Thereafter, Jones was charged with crimes unrelated to the November 6 incident and was appointed counsel. On the basis of information developed through the police investigation of the November 6 robbery, the State sought to compel Jones to participate in a live lineup procedure to be viewed by the victims of that crime — a crime for which Jones was a suspect but had not yet been charged. Jones participated in the live lineup procedure, during which his court-appointed counsel was present. After being identified by one of the two victims as the perpetrator of the November 6 robbery, Jones was immediately charged with robbery and armed assault. The lineup procedure was videotaped.
Prior to trial on the robbery and assault charges, Jones disclosed six alibi witnesses. On February 15, 2002, after deposing Jones's alibi witnesses, the state attorney held a meeting in his office with several law enforcement officers, including Rubinson, and two auto theft detectives, Villegas and Fernandez. Villegas and Fernandez knew Jones and had arrested him on previous occasions, but were not involved in the November 6 robbery and assault case. According to Rubinson, the purpose of the meeting was to determine who was involved in the police chase on the night of November 6, 2000.
Immediately after confirming that Rubinson was the officer involved, he was shown the videotape of the lineup in which Jones had participated. Villegas and Fernandez remained in the room, but were instructed not to say anything. After viewing the tape, Rubinson identified Jones as the man he observed speeding away when he responded to the November 2000 call. This procedure enhances the need for our judicial analysis.
Jones submitted a motion to suppress Rubinson's identification. The trial court held an evidentiary hearing during which Rubinson, Villegas, and Fernandez testified. Both Villegas and Fernandez testified that they did not speak or make any gestures toward Rubinson as he viewed the tape. The detectives were also given the opportunity to explain certain statements they allegedly made about Jones.
At the close of the hearing, the trial court suppressed the identification Rubinson had made from the videotape. The trial court determined that the identification was not accurate or believable given the circumstances of the case, including the passage of fifteen months between the crime and the viewing of the video lineup, coupled with the presence of two auto theft detectives who had previously arrested Jones and appeared to have a bias against him. While the trial court excluded the identification from the videotape, the trial court ruled that it would permit the officer to testify based on what he personally observed the night of November 6, 2000, as well as his identification of Jones from the BOLO flyer he saw approximately one week later.
On appeal of the order suppressing the identification, Jones argued that the video lineup procedure was unduly suggestive. Jones further argued that the videotape was shown in the absence of counsel's presence in violation of Cox v. State, 219 So.2d 762 (Fla. 3d DCA 1969), in which the district court held that an accused who has been arrested and booked has a right to counsel when a videotape is shown to an identifying witness as a substitute for a live lineup procedure, and State v. Gaitor, 388 So.2d 570 (Fla. 3d DCA 1980), in which the Third District confirmed the continued validity of Cox, but limited it to instances involving post-charge videotape lineups. The State, in turn, asked the district court to recede from Cox and Gaitor and apply the rule established by the United States Supreme Court in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), where the High Court held that a defendant has no right to counsel under the Sixth Amendment to the United States Constitution when a witness views a photographic display for identification purposes. See id. at 321, 93 S.Ct. 2568.
The Third District, sitting en banc, held that the display of a videotaped lineup to a witness for identification purposes was not a "crucial stage" in the prosecution that would trigger the right to counsel under article I, section 16 of the Florida Constitution. See State v. Jones, 849 So.2d 438, 440-41 (Fla. 3d DCA 2003)
. The district court extended the reasoning and outcome of Ash to the instant scenario — which involved the display of a videotaped lineup. In so doing, the district court receded from its earlier rulings to the contrary in Cox and Gaitor.1
See id.
While I am not troubled by the district court's conclusion, or the majority of the district court's analysis, I am concerned with its citation to a number of cases from other state courts in support of the proposition that Ash is applicable to videotaped lineups and the procedure implemented for that view under these circumstances. Specifically, the district court invoked without explanation2 or limitation Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042 (1978); Merritt v. State, 76 S.W.3d 632 (Tex.App.2002); and McMillian v. State, 83 Wis.2d 239, 265 N.W.2d 553 (1978). Each of these cases reaches a conclusion that I believe violates the fundamental right to counsel principles set forth in Ash and its precursor decision, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Although the full extent of the Third District's reliance on these opinions may be debated, it is critical to address this aspect of the district court's decision to ensure that courts in this state do not apply the same faulty analysis in subsequent cases, and thereby derogate from the right to counsel protections guaranteed by the Florida Constitution particularly with the procedure used in this case.
In Wade, the Supreme Court held that a post-indictment live lineup constituted a "critical stage" of the prosecution requiring assistance of counsel. See id. at 236, 87 S.Ct. 1926. As a basis for its analysis, the Wade Court drew on the decision in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where the Court characterized the period from arraignment to trial as "`perhaps the most critical period of the proceedings ...' during which the accused `requires the guiding hand of counsel ...' if the [counsel] guarantee is not to prove an empty right." Wade, 388 U.S. at 225, 87 S.Ct. 1926 (quoting Powell, 287 U.S. at 57, 69, 53 S.Ct. 55). The Supreme Court acknowledged that it had extended the principle articulated in Powell to a variety of non-trial situations, including: arraignment (Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963)); post-indictment interrogation ...
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