Rodriguez v. State, 81-767
| Decision Date | 25 May 1982 |
| Docket Number | No. 81-767,81-767 |
| Citation | 413 So.2d 1303 |
| Parties | Eliceo RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Magazine & Blumenfeld and Eric Cohen, Coconut Grove, Bruce Winick, University of Miami Law School, Coral Gables, for appellant.
Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
Before HENDRY, BASKIN and JORGENSON, JJ.
Eliceo Rodriguez appeals his convictions on two counts of first degree murder, armed robbery, burglary of a dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Finding no reversible error, we affirm.
Rodriguez and co-defendant, whose trial was severed, were indicted on murder charges. The two victims, Armando and Louise Mira, returned to their home from an outing and found two men there. The taller of the two men stayed with Louise and the couple's two children, Armando Jr., aged eleven, and a three year old girl, while the shorter man took Armando into another room and shot him. The shorter man then returned and took Louise into the other room and shot her. Three days after the murders, Armando Jr. identified Rodriguez as the shorter man from a photographic array of six pictures, and also identified a photograph of the co-defendant from another picture spread. At trial, the boy was unable to identify Rodriguez as one of the intruders; however, a defense witness acquainted with the defendant testified that Rodriguez had changed his appearance in the interim between June, 1979 when the murders took place, and trial. At the time of the trial, Rodriguez no longer had a mustache and was wearing his hair differently. Motions for judgment of acquittal at the close of the state's case and again at the close of all the evidence were denied.
Challenging his convictions on several grounds, Rodriguez first contends that the trial court abused its discretion in denying his request to admit expert testimony on the reliability of eyewitness identification by a child.
The decision as to whether expert testimony should be allowed into evidence rests within the broad discretion of the trial court and will not be disturbed on appeal absent a clear showing of error. Johnson v. State, 393 So.2d 1069 (Fla.1980). In Johnson supra, this precise issue, expert testimony on the reliability of eyewitness perception and identification, was addressed and our supreme court there held that expert testimony should be excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts. Johnson v. State, supra, at 1072, and cases cited; Nelson v. State, 362 So.2d 1017 (Fla. 3d DCA 1978). In the instant case, the expert would have testified generally as to the ability of individuals to make reliable identifications taking into account such factors as stress, age, and weapon focus. The purpose of such testimony was to demonstrate that given his age and the nature of the situation, Armando Jr. could have misidentified the defendant.
We believe that the factors affecting Armando Jr.'s reliability as an eyewitness were within the ordinary experience of the jurors and did not require the testimony of an expert. The jurors were all aware of his age and could readily determine to what extent this may have affected his perception. Moreover, the record reveals that the trial judge questioned the child, and based on his intelligence and ability to understand, found him competent to testify. See, e.g., Garrard v. State, 335 So.2d 603 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1101 (Fla.1977).
Rodriguez also argues that exclusion of the expert testimony precluded effective cross-examination of Armando Jr. with respect to susceptibility to suggestive influences during the identification procedure, since counsel was not present at that time. We disagree. As the defendant recognizes, there is no right to counsel at this non-critical stage in the proceedings, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), and the expert's general testimony as to eyewitness fallibility would be ineffective as a means of showing the suggestibility of this particular identification procedure. We therefore conclude that the trial court did not abuse its discretion in excluding the expert testimony.
The defendant's next contention, that the trial court erred in refusing to give the jury a specific instruction concerning identification testimony, is without merit. See State v. Freeman, 380 So.2d 1288 (Fla.1980); ...
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McMullen v. State
...stress that might cloud a subsequent identification of the assailant by the victim." Id. at 1021. Likewise, in Rodriguez v. State, 413 So.2d 1303, 1304 (Fla. 3d DCA 1982), the Third District ruled that "[t]he decision as to whether expert testimony should be allowed into evidence rests with......
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...by virtue of defendant's absence. Thus, this was not a crucial or critical stage requiring counsel's presence. See Rodriguez v. State, 413 So.2d 1303 (Fla. 3d DCA 1982)(court cited Ash and stated that there is no right to counsel at photographic displays—a non-critical stage); Griffin v. St......
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Harrison v. State Of Fla.
...issue here is testimony significantly different from an “expert's general testimony as to eyewitness fallibility.” Rodriguez v. State, 413 So.2d 1303, 1305 (Fla. 3d DCA 1982). See McMullen v. State, 714 So.2d 368, 372 (Fla.1998) (holding “the admissibility of expert testimony regarding the ......
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