Walker v. State, 4D99-740.

• Decision Date: 13 December 2000
• Docket Number: No. 4D99-740.,4D99-740.
• Citation: 776 So.2d 943
• Parties: Kevin WALKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

776 So.2d 943

Kevin WALKER, Appellant, v.STATE of Florida, Appellee.

No. 4D99-740.

District Court of Appeal of Florida, Fourth District.

December 13, 2000.

Rehearing Denied February 16, 2001.

John A. Garcia of John A. Garcia, P.A., West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jan E. Vair, Assistant Attorney General, Fort Lauderdale, for appellee.

GARDINER, ANA I., Associate Judge.

The Appellant, Kevin Walker, appeals the trial court's final judgment finding him guilty of two counts of Armed Robbery and sentencing him to life imprisonment as a prison releasee reoffender.

The evidence at trial showed that Appellant while armed with a gun robbed a Subway Sandwich Shop.During the robbery, Appellant forced two store employees into a freezer and then fled in his vehicle.Later, the two store employees described Appellant to the police.Another person who saw the Appellant leaving the Subway Shop also described Appellant's appearance to the police.Approximately one hour later, after locating Appellant's car in the parking lot of an apartment complex, the police drove the two store employees and the other witness to the apartment complex.While en route to the apartment complex the police told the three witnesses that they were going to a place where there was a possible suspect.Appellant's description was not discussed during the drive.Upon arrival at the apartment complex, the witnesses stayed in the police car while the police officer spoke to Appellant standing in the parking lot, approximately twenty-five feet away.The police officer then walked Appellant closer to the car and shined a flashlight in Appellant's face.Simultaneously, and without discussion among each other, all three witnesses positively identified Appellant as the person who robbed the Subway Shop.

Prior to trial, Appellant moved to suppress the pre-trial identification.The trial court denied the motion and during trial the three witnesses were allowed to testify regarding the pre-trial identification and to make an in court identification of the appellant.

Appellant's pretrial identification is considered a "show-up" procedure where the police take a witness, shortly after the commission of an observed crime, to where the police are detaining the suspect, in order to give them an opportunity to make an identification.Although "show-up" procedures are inherently suggestive because the witness is presented with only one suspect for identification, it can be valid if the identification is based solely upon the witness' independent recollection of the suspect without being influenced by the suggestiveness of the procedure.SeePerez v. State,648 So.2d 715, 719(Fla.1995);Macias v. State,673 So.2d 176, 181(Fla. 4th DCA1996).However, the identification will not be valid if there was a substantial likelihood of irreparable mis-identification based upon the totality of circumstances.SeeBlanco v. State,452 So.2d 520, 524(Fla.1984), cert. denied,469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953(1985).The following factors should be considered: (a) the witness' opportunity to view the suspect at the time of the crime; (b) the witness' degree of attention; (c) the accuracy of the witness' prior description of the suspect; (d) the level of certainty demonstrated by the witness at the confrontation; and (e) the length of time between the crime and the confrontation.SeeNeil v. Biggers,409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401(1972).

The decision to admit a pre-trial identification is within the sound discretion of the trial court and the decision should be overturned only upon a showing of abuse of discretion.SeeLee v. State,635...