Weinshenker v. State, 68--80

• Decision Date: 25 February 1969
• Docket Number: No. 68--80,68--80
• Citation: 223 So.2d 561
• Parties: Phillip WEINSHENKER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 561

223 So.2d 561

Phillip WEINSHENKER, Appellant, v. The STATE of Florida, Appellee.

No. 68--80.

District Court of Appeal of Florida, Third District.

Feb. 25, 1969.

Rehearing Denied March 24, 1969.

Robert L. Koeppel, Public Defender, and Herbert M. Klein, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.

Before PEARSON, HENDRY and SWANN, JJ.

PEARSON, Judge.

The State filed a two-count information charging Phillip Weinshenker with breaking and entering an apartment with intent to commit robbery and with robbery and another information charging him with committing a crime against nature. The court reduced count one of the first information to entering without brreaking and directed a verdict of not guilty on the crime against nature charge. A jury found Weinshenker (1) guilty of entering an apartment without breaking and (2) guilty of robbery. The court entered a judgment of conviction and sentenced him to five years imprisonment on the first count and fifteen years on the second count.

Weinshenker had previously been adjudicated guilty of another felony and had been placed on probation for three years. Prior to pronouncing sentence in the present cause the court heard testimony to determine whether Weinshenker violated the terms of that probation. After concluding that Weinshenker had violated probation, the court revoked probation and sentenced him to three years imprisonment. The three sentences were to run consecutively. This appeal is from the judgment of guilt and the sentence imposed as a consequence of that judgment.

Phillip Weinshenker, the appellant, was a co-defendant with Jessie Joseph Tafero, whose appeal is decided with an opinion filed this day, 223 So.2d 564. We stated most of the facts concerning this appeal in the Tafero opinion. The following are facts material to Weinshenker's appeal which we did not list in the Tafero appeal.

Miss C. A. B. never identified Weinshenker as Billy. She viewed two different lineups in the Dade County Public Safety Department Building on two separate occasions and identified two different men as Billy. Neither of the men was Weinshenker.

Miss C. R. was unable to identify Weinshenker as Billy from police photographs. But she did identify Weinshenker as Billy at a lineup in the Dade County Public Safety Department Building on November 21, 1967. Weinshenker's lawyer was present when she made the identification. Miss C. R. also made an in-court identification of Weinshenker as Billy.

Weinshenker urges first that the trial court should have directed a verdict of acquittal at the close of the state's case or, in the alternative, should have directed a verdict of acquittal at the close of all the evidence. Under this point the appellant urges that there was not sufficient evidence to establish that he was Billy.

In dealing with this point we begin by quoting an axiomatic legal principle, '(t)he prosecution has the burden of establishing beyond a reasonable doubt the identity of the defendant * * *.' 1 Wharton's Criminal Evidence § 16, p. 46. We understand this to mean that the state must prove that the defendant and the perpetrator of the crime with which the defendant is charged are one and the same.

In Adams v. State, Fla.App.1958, 102 So.2d 47, the First District Court of Appeal stated, in substance, that whether a motion for a directed verdict of acquittal made at the close of the state's case should be granted depends upon whether the state met its burden of proof by making out a prima facie case against the defendant, that is, whether the state 'establish(ed) The guilt of the accused beyond and to the exclusion of every reasonable doubt * * *.' 102 So.2d at 49 (emphasis added). As we understand it, the foregoing principle would require a trial judge, in ruling on a motion for a directed verdict of acquittal made at the close of the state's case, to ask himself the following question: If the trial were to end now, could the jury as reasonable men find the defendant guilty beyond and to the exclusion of a reasonable doubt? If his answer is affirmative, the trial judge must deny the motion; if it is negative, he must grant the motion. In the Adams case the judgment of conviction was reversed because the court held that the state had not established the guilt of the defendant to the exclusion of every reasonable doubt and (inferentially) that the trial judge should have granted the defendant's motion for a directed verdict of acquittal.

In the present case the sole proof that Weinshenker was Billy was the evidence Miss C. R. gave. This evidence included testimony that Miss C. R. identified Weinshenker as Billy because, among other things, she recognized his voice. ¹ It is well settled in Florida that a person may be identified as the perpetrator of a crime solely by means of voice recognition. In Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A.,N.S., 373, 14 Am.Ann.Cas. 78 (1907), a rape victim identified her assailant solely by his voice. The court held that a witness may be permitted to identify an accused solely from having heard his voice and that such identification is direct and positive proof of a fact the probative value of which was a question for the jury. See, too, Simon v. State, Fla.App.1968, 209 So.2d 682. We hold...