Smith v. State

• Decision Date: 30 August 1978
• Docket Number: No. HH-140,HH-140
• Citation: 362 So.2d 417
• Parties: Paul Stephen SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 417

362 So.2d 417

Paul Stephen SMITH, Appellant, v.STATE of Florida, Appellee.

No. HH-140.

District Court of Appeal of Florida, First District.

Aug. 30, 1978.

Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Smith appeals his conviction for the offense of sexual battery with the use of a deadly weapon.The issues in Smith's appeal turn primarily upon the reliability of the victim's in-court identification.

We must initially determine whether the pre-trial identification was impermissibly suggestive.If we so find, then the next question to answer is whether the misidentification gave rise to a substantial likelihood of irreparable misidentification, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247(1968), so that it could not be said that the later in-court identification was grounded upon a source independent of the prior tainted misidentification.United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967);Cribbs v. State, 297 So.2d 335(Fla. 2d DCA1974).

Prior to trial Smith moved to suppress the photographic identification previously made by the victim.Supporting his motion was the deposition testimony of the victim who stated that during the evening following the sexual assault, she was shown six photographs of suspects.She picked the photograph of the one whom she thought might be her assailant, but was unable positively to identify it.The photograph of defendant was not among the six then displayed to her.The following day she was shown four different pictures from which she selected that of defendant as the transgressor.She testified that prior to her identification, Deputy Sheriff Reaves told her he had recently taken into custody a suspect who fit "the description I gave him and that the guy had been in one of the pictures the night before and I had almost picked it up, but I wasn't sure.He said that that guy's picture was in this bunch, too."¹

The description which the prosecutrix furnished the investigating officers was that her assailant, a white male, had a goatee and blond hair to his ears.While it does not appear in the record which of the six photographs the victim nearly made her identification, in our examination we find that the only photograph of a white male with light brown hair and a beard was that of state exhibit number five.Four of the other photographs displayed men with moustaches only.Another photograph was that of a person with dark brown hair cut above his ears and face clean shaven.The photograph of defendant, marked state exhibit three, identified by the victim as her assailant, was that of a white male with blond hair to his shoulders and a clean shaven face.This photograph was taken the day following the assault after defendant had surrendered himself in to the authorities.Strangely, of all the photographs displayed to the victim only that of defendant bore the caption: "Up to fifteen years state prison Fla. Statues (sic) 843-11."

We conclude that the pre-trial procedure employed by the authorities was impermissibly suggestive, and the court should have suppressed defendant's photograph from admission into evidence.The gratuitous comments made to the victim by Deputy Reaves that the prosecutrix should disregard the suspect's facial hair because hair might be changed could have had no effect other than to focus the victim's attention upon the defendant's photograph, showing defendant unbearded.It is clear from our observation of the ten photographs that state exhibit number five, shown to the victim the night of the crime, most closely resembled the photograph of defendant.The additional comments that the photograph of a suspect who had recently been taken into custody was in the later array and that this photograph most closely resembled the one of the suspect whom she had nearly selected the night before cannot be judicially condoned.The hazards of misidentification increase if the police indicate to the witness that one of the persons pictured committed the crime.Wall, Eye-Witness Identification in Criminal Cases, 74-77 (1965).The commentator also observed, "the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor perhaps it is responsible for more such errors than all other factors combined."Id. at 261.And, "(r)egardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification."Simmons v. United States, 390 U.S. at 383-384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.The prejudicial effect of the officer's comments was compounded when we consider that of all the photographs...