Macias v. State

• Decision Date: 15 May 1996
• Docket Number: No. 94-1626,94-1626
• Citation: 673 So.2d 176
• Parties: 21 Fla. L. Weekly D1156 Carlos MACIAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 176

673 So.2d 176

21 Fla. L. Weekly D1156

Carlos MACIAS, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida,

Fourth District.

No. 94-1626.

May 15, 1996.

Richard L. Jorandby, Public Defender, and Ellen Morris, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

PARIENTE, Judge.

We withdraw our opinion dated March 13, 1996 and substitute this opinion. We deny defendant's motion for rehearing and certification.

Defendant appeals his convictions and sentence for aggravated assault with a deadly weapon; aggravated assault with intent to commit a felony; attempted sexual battery; robbery; attempted kidnapping; battery and escape. We affirm the convictions, but reverse the imposition of consecutive sentences and mandatory minimums on all charges other than the escape charge based on Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), and Daniels v. State, 595 So.2d 952 (Fla.1992). We also write to address two of the multiple issues raised in this appeal: (1) the propriety of the voice identification of defendant by the victim; and (2) whether the joinder of the escape charge with the other charges constituted reversible error.

FACTS

All of the charges except for the escape arose from an incident which occurred at approximately 10:30 p.m. The victim, age 53, was driving home from work when she was forced off the road and into an embankment by a white van. The victim described in vivid and precise detail that her assailant quickly approached her car window, not letting her see his face, and told her "lady, I'm going to rape you and kill you." According to her testimony, this same phrase was repeated at least twice during the course of the The victim testified that the assailant unzipped his pants, pulled out his penis and told the victim to "suck me"; eventually forced her out of her car and toward his van; ripped open her smock and put his fingers under her bra strap; and took a $20 bill and a large amount of change from the victim. The victim testified she would remember his words and voice for the rest of her life. She did not, however, have the opportunity to identify his physical features other than in a general way because she only observed him from the moustache down. Defendant was later arrested because he and his clothing matched the victim's general description of the assailant and he owned a van similar to the van described by the victim.

                incident, which lasted two to ten minutes.  Also, the assailant instructed her to "open the door" and told her "I want your money."   When she did not open the door, the assailant raised his voice, which had previously been smooth and slow, and said "lady, I said open the door."
                

The critical link identifying defendant as the assailant was the victim's voice identification of defendant. The victim made two pretrial voice identifications and one in-court identification. At trial the victim testified as to the circumstances of both pretrial voice identifications.

The victim first positively identified defendant's voice as that of her assailant 32 days after the incident when she listened to a taped police interrogation of defendant made at the time of his arrest. The majority of the three-minute tape consists of the detective speaking and defendant invoking his right to counsel and declining to speak. However, defendant can be heard telling the detective that "I'm not going to be railroaded again."

Three months after the crime, at the hearing on defendant's motion to reduce bond, the victim again identified defendant based on his voice as the person who had attacked her. At this hearing, defendant was singled out by name. Although defendant was represented by counsel at the bond hearing and defense counsel was aware that the victim was present, counsel was never advised that the victim was present for the purpose of making a voice identification of his client.

Defendant did not testify at trial. However, over defendant's objection, defendant was compelled to repeat the following:

Lady, get out of the car. Lady, I'm going to rape you and I'm going to kill you. Lady, I said give me all your money.

Following this recitation, the victim again identified defendant as her assailant, stating that she had "absolutely no doubt."

IMPERMISSIBLY SUGGESTIVE VOICE IDENTIFICATION

Impermissibly suggestive identification procedures causing a likelihood of irreparable misidentification violate a defendant's right to a fair trial resulting in a denial of due process. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Grant v. State, 390 So.2d 341, 343 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). The basic concern with respect to procedures employed in pretrial identifications by the victim or witness has been to eliminate or minimize the risk of convicting the innocent. In United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967), Justice Brennan addressed the very real danger of a mistaken identification arising from utilizing an unduly suggestive identification procedure:

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.... A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.

(Footnote omitted). Concerning the relationship between a suggestive procedure and the risk of misidentification, Justice Brennan several years later observed in Biggers:

It is, first of all, apparent that the primary evil to be avoided is a "very substantial likelihood of irreparable misidentification." ... It is the likelihood of misidentification which violates a defendant's right to due 409 U.S. at 198, 93 S.Ct. at 381 (citation and footnote omitted).

process.... 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.

Here we have an identification by voice alone requiring identification of an auditory rather than a visual image. "[I]dentification by voice alone has long been thought to involve 'grave dangers of prejudice to the suspect.' " Commonwealth v. Miles, 420 Mass. 67, 648 N.E.2d 719, 728 (1995) (quoting Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir.1966)). As stated in Palmer:

Where the witness bases the identification on only part of the suspect's total personality, such as height alone, or eyes alone, or voice alone, prior suggestions will have most fertile soil in which to grow to conviction. This is especially so when the identifier is presented with no alternative choices; there is then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.

359 F.2d at 201. In People v. Collins, 60 N.Y.2d 214, 469 N.Y.S.2d 65, 67-68, 456 N.E.2d 1188, 1190-91 (1983), the New York Court of Appeals also expressed its concern about mistaken identification stemming from voice identification:

Although voice identifications are less common [than visual identifications] there is no reason to believe that the risk of mistaken identification is reduced when they have been employed by police prior to trial. It would seem that the ability of a person to make a reliable identification of another on the basis of his voice is at least as difficult as, and perhaps more difficult than, identifying him on the basis of his appearance.

Given the potential for misidentification if suggestive procedures are employed, courts have recognized that "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Perez v. State, 648 So.2d 715, 719 (Fla.1995); Blanco v. State, 452 So.2d 520, 524 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). As our supreme court has repeatedly stated, a show-up is inherently suggestive because a witness is presented with only one suspect for identification. See Perez, 648 So.2d at 719; Blanco, 452 So.2d at 524.

Just as one-person visual identifications have been condemned as inherently and unduly suggestive, courts of other states have held that one-person voice identifications suffer from the same infirmities. See Palmer; Miles; Collins; McCone v. State, 866 P.2d 740 (Wyo.1993). ¹ We agree that one-person voice identifications create a similar potential for misidentification as do one-person show-ups. They are inherently and unduly suggestive and should be avoided by law enforcement agencies unless no other reasonable alternative exists.

The procedures used here for both pretrial voice identifications were impermissibly suggestive because in each instance defendant's voice was the only voice heard by the victim. Because 32 days had elapsed before the first voice identification, there can be no claim of exigency or necessity justifying this procedure. Cf. Stovall; Perez. See also State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA), petition for review dismissed, 422 So.2d 842 (Fla.1982).

The suggestive nature of the method employed here was further exacerbated by the use of defendant's police interview as the voice exemplar and by the victim's knowledge that defendant was a suspect in the crime against her. ² See Scott v. State, 629

So.2d 238, 241 n. 4 (Fla. 3d DCA 1993); Palmer; Jackson v. State, 594 So.2d...