State v. Walker, 82-1601

• Decision Date: 13 April 1983
• Docket Number: No. 82-1601,82-1601
• Citation: 429 So.2d 1301
• Parties: STATE of Florida, Petitioner, v. Stanley WALKER, Respondent.
• Court: Florida District Court of Appeals

Page 1301

429 So.2d 1301

STATE of Florida, Petitioner, v. Stanley WALKER, Respondent.

No. 82-1601.

District Court of Appeal of Florida Fourth District.

April 13, 1983.

Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer, Asst. Atty. Gen., and James P. McLane, Certified Legal Intern, West Palm Beach, for petitioner.

Sheldon M. Schapiro, Fort Lauderdale, for respondent.

GLICKSTEIN, Judge.

The state has petitioned for a writ of certiorari, asserting that the trial court's order, suppressing the testimony of the victim relating to the identification of respondent, as well as any subsequent in-court identification of respondent by the victim, does not conform to the essential requirements of law and may cause material injury thereafter not remediable by appeal. We disagree and deny the petition because the appendix supports what the trial court obviously found; namely, an unnecessarily suggestive confrontation, which courts properly condemn. ¹

On the night of August 22, 1981, the victim in this case was terrorized by a group of young thugs who, with lights off, suddenly drove up behind and collided with the victim's moving vehicle as he innocently proceeded along a Broward County road. When the victim pulled his vehicle to the side of the road, the thugs robbed him of his watch, wallet and vehicle, using a gun in the process. The victim was able to reach a pay phone; and according to a Hollywood officer soon on the scene, the victim understandably could not be any more specific than to tell him that:

it was dark in the area. All [the victim] could see was the--the gun in the hand of the--one of the black males. He just described them to my recollection as three black males in their mid-twenties. Just average height and weight. He couldn't give me any further description as far as facial hair, clothing or anything of that nature.

Notwithstanding the obvious trauma, the victim did tell the Hollywood officer that he could identify the suspects from pictures. Three days later, a Fort Lauderdale detective showed him a photographic lineup of six individuals that included a picture of respondent, who had been apprehended in Fort Lauderdale during the early morning hours of August 23, 1981, in connection with a shoot-out in which the victim's vehicle was recovered. The detective later testified on deposition:

Q. What did [the victim] say when you showed him the photographs?

A. He said he could not make positive ID.

Q. Did he say whether any of the people looked familiar?

A. Uh, best of my memory, he, even before I showed him the line-up, he said he didn't think he could make identification and, um, I showed him the line-up and he said, no I can't pick anybody out.

Q. Did he say why he couldn't make an identification?

A. Uh, because he said at the time all he remembers was the gun and that there was, oh, three or four black males and he was scared and he really didn't look at anybody.

The victim was subpoenaed by the state for an adjudicatory hearing before a trial judge assigned to the juvenile division. The hearing, held on September 16, 1981, involved respondent in connection with a charge of possession of the victim's stolen vehicle. Therein it became apparent to the trial judge that there was considerable confusion as to what charges were or should be pending against respondent, who was present and represented by a public defender. The victim and the Fort Lauderdale officers who were involved in the early morning episode also were present at the hearing.

After asking the victim several questions, the trial judge went off the record; at that point the public defender inquired of the victim if respondent had been involved in robbing him. The victim then identified respondent as one of the suspects. The next day, the victim returned to the Hollywood police department and gave a statement which was followed by statements from the Fort Lauderdale officers who had witnessed the victim's identification. Respondent now having been identified, a probable cause affidavit for armed robbery was executed by the investigating Hollywood officer on October 5, 1981. On the same day, an information therefor relative to the victim's watch and wallet was filed and the subject motion and order followed.

As we picture the hearing of September 16, 1981, the victim apparently was within earshot of all the discussion which took place and in full view of respondent once the latter was brought into the room. The victim testified on deposition that he recognized respondent as one of the robbers as soon as he entered. But, in light of the victim's previous inability to identify respondent, we share the apprehension of the trial judge who later heard the motion to suppress the identification made under such suggestive circumstances.

There is no way to pass this confrontation off as a "show-up"; and even in Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), which permitted identification by the critically injured victim at her hospital bed, the court said:

The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.⁶

6 See Wall, Eye-Witness Identification in Criminal Cases 26-40; Paul, Indentification of Accused Persons, 12 Austl.L.J. 42, 44 (1938); Williams & Hammelmann, Identification Parades, Part I, (1963) Crim.L.Rev. 479, 480-481; Frankfurter, The Case of Sacco and Vanzetti 31-32.

Instead, we find some similarity in this case to Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1968), wherein the court held that the accused had been deprived of due process when he was subjected to a lineup, then a showup, then another lineup before the witness was convinced the accused was the robber. Here, the Fort Lauderdale detective's testimony vividly describes the inability of the victim to describe his attackers--and his reason therefor. Additionally, we see some correlation between the present facts and those in Simons v. State, 389 So.2d 262, 263 (Fla. 1st DCA 1980), wherein the state had the witness, on the day prior to his scheduled appearance, go to the courtroom where the accused was being arraigned on an amended information to see if he could recognize the accused. The court considered the subsequent in-court identification to be tainted. Id. at 266.

In 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 court said:

The primary evil to be avoided in the introduction of an out-of-court identification is a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). "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." Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 382. But as the analysis has evolved, a suggestive confrontation procedure, by itself, is not enough to require exclusion of the out-of-court identification; the confrontation evidence will be admissible if, despite its suggestive aspects, the out-of-court identification possesses certain features of reliability. Manson v. Brathwaite, 432 U.S. 98, 110, 97 S.Ct. 2243, 2250, 53 L.Ed.2d 140 (1977). Hence the appropriate test is twofold: (1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification. Id. The factors to be considered in evaluating the likelihood of misidentification include

the 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 v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.

(Emphasis supplied.) Given the "totality of the circumstances" ² of this case, we cannot in good conscience vitiate the judgment of the trial judge and hold that her ruling did not conform to the essential requirements of law when there is support in the record for a conclusion that there was an absence of reliable features ³ and, therefore, a substantial likelihood of misidentification.

LETTS, C.J., and HURLEY, J., concur specially with opinions.

LETTS, Chief Judge, concurring specially:

I agree that certiorari should be denied in this case and it is perhaps excessive to have two special concurrences. However, I am concerned about two possible connotations for the future which I do not believe are intended.

First, I assume the majority does not mean to suggest that if a victim cannot immediately describe his attacker or recognize him from photographs, that the victim cannot do so later when the two actually meet face to face.

Secondly, I also assume the majority does not mean to exclude all pretrial confrontations, otherwise the opinion will have a far reaching effect on the entire system.

While I cannot deny the accuracy of the opinion's quotes and admit a certain inconsistency between those excerpts and the ones that follow, this hapless victim, a 38 year veteran employee of Eastern Airlines, ⁴ also answered questions under oath indicating instantaneous, unequivocal and positive identification of the defendant (although admittedly after the confrontation). Apparently, it was the other two co-perpetrators he did not get a good look at. Examples of his testimony include:

Q. Would it be safe to say that you knew that he was the party that was the...