Rivera v. State, AP-294

• Decision Date: 11 January 1985
• Docket Number: No. AP-294,AP-294
• Citation: 10 Fla. L. Weekly 164,462 So.2d 540
• Parties: 10 Fla. L. Weekly 164 Roger Allan RIVERA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 540

462 So.2d 540

10 Fla. L. Weekly 164

Roger Allan RIVERA, Appellant, v. STATE of Florida, Appellee.

No. AP-294.

District Court of Appeal of Florida First District.

Jan. 11, 1985.

Mark King Leban, Miami, for appellant.

Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., for appellee.

ERVIN, Chief Judge.

Appellant, Roger Allan Rivera, appeals his conviction for aggravated assault with a deadly weapon, not a firearm, contending that the trial court committed reversible error in (1) denying his motion both to suppress pre-trial identifications and prohibit in-court identifications by the victim and eyewitness, (2) limiting his cross-examination of the victim and of the investigating officer to the extent that he was obliged to call those witnesses as his own, thereby precluding his impeachment of their testimony, and (3) refusing to instruct the jury as to the crime of attempted aggravated assault. We find no error as to point one and affirm as to it. We agree, however, that reversible error occurred as to points two and three, and therefore reverse and remand the case for new trial.

The record discloses that the victim and her mother were traveling west on Gaines Street in Tallahassee on April 29, 1982, when a car driven by a young man, with a Doberman Pinscher inside it, pulled up behind them with its horn blaring and the driver shouting obscenities and profanities. At the next intersection the car, following that driven by the victim's mother, proceeded next to the passenger's side of the automobile, and the young man, while continuing his verbal abuse, pointed what appeared to be a gun at the victim. During the incident, which lasted approximately five minutes, both women had a clear view of their assailant, the car, the dog and the firearm. When the man drove away, the women followed and were able to record his license number which they promptly reported to the police.

Officer Garber of the Tallahassee Police Department, who was assigned to investigate the event, learned the automobile was registered to Rivera, a resident of Miami attending Florida State University. On May 4, 1982, after having made initial contact with Rivera, Officer Garber interviewed the victim and her mother and showed the women, separately, a photographic line-up of six individuals, including a photograph of Rivera taken more than a year earlier. The victim was unable to identify the driver from the line-up because she had remembered him as being more clean-cut than any of those pictured. The victim's mother, however, picked two possible suspects from the display, one of whom was Rivera, but expressed the same reservations regarding the quality of the picture presented. Afterward, when Officer Garber met with both women, she pointed out Rivera's photograph and told the women that the vehicle bearing the license tag they had recorded was registered to Rivera. After that revelation, the victim's mother seemed more certain that Rivera was in fact the driver.

The defense, contending the photographic lineup was so impermissibly suggestive as to create a substantial likelihood of irreparable misidentification at trial, moved to suppress any evidence of the pretrial identifications and to prohibit in-court identifications. A pretrial hearing was held on the motion at which time the victim and her mother testified at length regarding the incident; their opportunity to view the driver, his car and dog; their degree of attention; the initial descriptions they had given the police; their unsuccessful attempts at positively identifying Rivera from the photograph, and their certainty that they could nevertheless identify the driver if they saw him in person. On that evidence, the motion to suppress was denied and the case proceeded to trial.

At trial, during direct examination of the victim, the state limited its inquiry to the events that occurred on April 29, 1982, relating to the victim's descriptions of the driver, car and dog, statements given by her to the police and, finally, whether she was subsequently contacted by other police officers after having initially reported the incident, to which questions she answered affirmatively. The state did not explicitly inquire into the circumstances surrounding the photographic lineup. ¹ When, on cross-examination, the defense sought to inquire into the contacts and conversations between the victim and Officer Garber occurring after the date of the incident, the state objected on the ground that such questioning was outside the scope of direct examination, ² which objection was sustained. The state later called Officer Garber who was questioned regarding her investigation of the case over a period of several weeks, as well as her contacts with Rivera. Again, the photographic lineup was not mentioned. On cross-examination, when the defense attempted to delve into the officer's training in general and into her training concerning photographic lineups in particular, the state raised the same objection, which was again sustained. As a result, Rivera was forced to call Officer Garber as his own witness in order to bring out inconsistencies pertaining to the pretrial identifications and, because the officer was then a defense witness, he was precluded from impeaching her testimony through introduction of expert testimony pertaining to the proper method of photographic identification. ³

First, we find no error in the denial of Rivera's motion to suppress. The United States Supreme Court has recognized that the chance of mistaken identification in court increases in those instances in which pre-trial identifications, either in person or through the use of photographs, are made under unnecessarily suggestive circumstances. See United States v. Wade 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In such situations, the issue is whether the confrontation was "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." Stovall, 388 U.S. at 302, 87 S.Ct. at 1972. In making this determination, the defendant's claim must be evaluated "in light of the totality of [the] surrounding circumstances", Simmons, 390 U.S. at 383, 88 S.Ct. at 970, with consideration given to the following factors:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil, 409 U.S. at 199, 93 S.Ct. at 382. Only if it is shown that "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" will a conviction, based on an "eyewitness identification at trial following a pretrial identification by photograph", be set aside. Simmons, 390 U.S. at 384, 88 S.Ct. at 971.

Rivera contends that our prior opinion in Smith v. State, 362 So.2d 417 (Fla. 1st DCA 1978), which reversed a conviction based upon an impermissibly suggestive photographic line-up identification, is controlling here. We do not, however, find here the same compelling factual circumstances that were present in Smith, where, in addition to a suggestive pre-trial identification, no live identification of the defendant occurred during trial, and therefore do not consider it controlling. The facts in this case, instead, are more akin to those in Salter v. State, 382 So.2d 892 (Fla. 4th DCA 1980), wherein it was held that appellant had failed to demonstrate reversible error "since identification testimony was based upon observation independent of the line-up." Id. at 893. Accordingly, we affirm the denial of the motion to suppress. ⁴

As in Salter, however, we find that reversible error occurred in that the trial court unduly restricted the defense's cross-examination of the victim and Officer Garber. A full and fair cross-examination of a witness in a criminal trial is a right belonging to a defendant, not merely a privilege. Coco v. State, 62 So.2d 892 (Fla.1953). As the Florida Supreme Court has explained:

The right of a criminal defendant to cross-examine adverse witnesses is derived from the Sixth Amendment and due process right to confront one's accusers. One accused of crime therefore had an absolute right to full and fair cross-examination.... A limitation on cross-examination that prevents the defendant from achieving the purposes for which it exists may be harmful error.

Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). Although Florida's Evidence Code provides that the trial court "shall exercise reasonable control over the mode and order of the interrogation of witnesses," Section 90.612, Florida Statutes (1979), this court has recognized that such discretion "is constrained by a defendant's right to confront adverse witnesses." Smith v. State, 404 So.2d 167, 169 (Fla. 1st DCA 1981). Accordingly, the "[c]urtailment of a defendant's right to cross-examination of State witnesses is a power to be used sparingly." Salter, 382 So.2d at 893. The vital importance of cross-examination to a criminal defendant is further heightened "when the cross-examination is of the key prosecution witness ... [and] ... positive identification is made under circumstances of questionable reliability." Porter v. State, 386 So.2d 1209, 1213 (Fla. 3d DCA 1980) (e.s.). Recognizing the potential for misidentification where the pre-trial use of photographic identification is said to be unnecessarily suggestive, the Supreme Court has suggested:

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