State v. Dorsey
| Citation | 5 So.3d 702 |
| Decision Date | 10 February 2009 |
| Docket Number | Case No. 2D07-6064. |
| Parties | STATE of Florida, Appellant, v. Allen L. DORSEY, a/k/a Allen L. Dorsey, Jr., Appellee. |
| Court | Court of Appeal of Florida (US) |
Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
The State appeals a pretrial order suppressing both out-of-court and in-court identification testimony implicating Allen L. Dorsey (the Defendant) in a home-invasion robbery. We treat the State's notice of appeal as a petition for writ of certiorari. See State v. Pettis, 520 So.2d 250 (Fla. 1988); see also State v. Styles, 962 So.2d 1031 (Fla. 3d DCA 2007) (); State v. Francois, 863 So.2d 1288 (Fla. 4th DCA 2004) ().
We deny the petition as to the out-of-court identification because the trial court did not depart from the essential requirements of law in suppressing the out-of-court identification testimony. However, because the trial court failed to apply the correct legal analysis with respect to the in-court identification, we grant the petition as to the in-court identification only.
At about midnight on January 30, 2007, Ryan Young and his brother, John Young, were in the living room of the residence that the two men shared. Ryan was watching television, and John was asleep on the couch. Ryan heard the family dogs barking at something in the kitchen. He walked into the kitchen to quiet the dogs. As soon as Ryan entered the kitchen, he saw a man who promptly pointed a shotgun at him and marched him back into the living room. The shotgun-toting robber immediately demanded money. The noise caused John to awake.
Ryan told the robber that there was some money on a dresser in one of the bedrooms. The robber directed both men into that bedroom. Ryan collected the money on the dresser and handed it to the robber.
After the robber had the money, he saw a video game console on the floor in the bedroom. The robber ordered Ryan to disconnect the video game console and give it to him. While Ryan was engaged in disconnecting the video game console, the robber forced John to kneel on the floor and face the wall. Then, the robber frisked John to see if he had any money in his pockets.
When Ryan finished disconnecting the video game console, he handed it to the robber. Next, the robber slowly backed out of the bedroom, pointing the shotgun directly at Ryan. As the robber closed the bedroom door, he announced, "If anybody opens up this door, I'm blowing their head off."
After the robber left the house, John called the authorities. The Pasco County Sheriff's Office investigated the robbery. Ryan described the robber as an African-American male, approximately six feet tall, and weighing 185 to 190 pounds. The robber was wearing three or four shirts. The robber's outermost shirt was black and his undershirt was white. Ryan explained that the robber's multiple shirts made it difficult to estimate how much he weighed. Ryan also remembered that the robber was wearing a "black little snow hat." This hat did not cover or obscure the robber's face. Notably, Ryan told the investigating officers that the robber had a goatee.
On March 7, 2007, approximately five weeks after the robbery, Detective James Medley of the Pasco County Sheriff's Office showed Ryan a photographic array or "photo-pack" consisting of the photographs of the faces of six African-American males. Prior to displaying the photo-pack to Ryan, Detective Medley instructed him not to guess when viewing the photographic lineup. Detective Medley further cautioned Ryan as follows: He also warned Ryan, "You have to be absolutely sure." According to Detective Medley, Ryan — without hesitation — selected a photograph of the Defendant as depicting the robber. When Detective Medley asked Ryan how he identified the robber, Ryan replied, "The eyes."
Detective Medley also displayed the photo-pack to John. However, John was unable to identify a suspect from the photo-pack.
The State subsequently charged the Defendant with the home-invasion robbery of Ryan and John. The Defendant filed a motion asking the circuit court to suppress both "the photo line up and any testimony by Ryan Young identifying the Defendant as the assailant." In the motion, the Defendant noted that he was the only person depicted in the photo-pack who had facial hair.
The circuit court conducted an evidentiary hearing on the motion to suppress the identification. The State presented the testimony of Ryan and Detective Medley at the suppression hearing; the Defendant did not call any witnesses. In open court, Ryan identified the Defendant as the robber.
At the hearing, Ryan testified in some detail about his opportunities to observe the robber. He said that the entire incident had lasted from ten to twelve minutes. Because the kitchen was dimly lit, Ryan was not able to see the robber clearly when he first saw him. However, Ryan testified that the living room and the bedroom — where he had spent most of his time with the robber — were brightly lit. Thus, except for the time he spent disconnecting the video game console, Ryan was able to closely observe the robber's features. During the entire encounter, Ryan was never more than a few feet away from the robber. And Ryan had to face the robber directly when he handed him the money from the dresser and the video game console. Unlike John, Ryan had not been forced to kneel on the floor and face the wall. Consequently, Ryan was able to observe the robber as the robber backed out of the bedroom to leave.
On cross-examination, defense counsel elicited from Ryan the fact that the picture that Ryan had selected from the photo-pack was the only one depicting a man with a goatee. However, when pressed to explain how he had identified the Defendant as the robber, Ryan testified that the goatee was not a factor that influenced his decision to select the Defendant's photograph. Instead, Ryan repeatedly explained that he "just looked at the eyes." Asked to explain how the robber's eyes differed from the eyes of the other five men in the photo-pack, Ryan replied:
It's the way [the robber] looked down the [gun sight]. I don't know. I don't know how to explain it, but just whenever he was looking down the [gun sight], pointing the shotgun right at me, I was just able to tell. I don't know, really, how to explain it. I just know that's his eyes and everything.
Thus Ryan's testimony about how he had identified that Defendant's photograph based upon "his eyes and everything" was consistent with what he had told Detective Medley immediately after selecting the Defendant's photograph from the photo-pack.
The determination of whether to exclude an out-of-court identification is determined by a two-pronged test: (1) whether the police used an unnecessarily suggestive procedure and (2), if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 110-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Rimmer v. State, 825 So.2d 304, 316 (Fla.2002). The factors to be considered in evaluating the likelihood of misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
The trial court found that the photo-pack was impermissibly suggestive because, out of the six African-American males depicted in the photo-pack, the Defendant was the "only one [having] distinct facial hair about the mouth," a fact that Ryan had mentioned to police in his description of his attacker. Having found that the photo-pack was impermissibly suggestive, the trial court then analyzed each of the Biggers factors. The trial court found that (1) Ryan "had a limited period of time to observe the suspect while under a significant level of threat to himself and his family," (2) Ryan's degree of attention to the robber was "questionable," (3) Ryan's estimate of the robber's height and weight differed from the Defendant's...
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