Alfonso v. State

275 So. 3d 215
CourtDistrict Court of Appeal of Florida
DecidedJune 26, 2019
DocketNo. 3D17-2617
StatusPublished

This text of 275 So. 3d 215 (Alfonso v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alfonso v. State, 275 So. 3d 215 (Fla. Ct. App. 2019).

Opinion

LOGUE, J.

*217Defendant, Lazaro Alfonso, seeks review of the trial court's order denying his motion to suppress the identification made by the sole witness who observed him breaking into her home. We affirm.

FACTS

The witness, an eleven year-old girl, was home alone. Upon hearing a knock on the front door, she looked through the peephole and saw a man wearing a baseball cap. She immediately telephoned her father, who told her to not open the door. She checked the peephole again, but the man was gone.

Approximately one hour later, the witness heard glass shattering in the living room. She went to the living room and from about fifteen feet away, saw a man breaking through a window with a "tool." She moved in closer and was able to observe from a distance of about three feet. She recognized him as the same man who was previously at the front door, though he was no longer wearing a cap. The venetian blinds covering the window were pulled down, but the slats were open. The witness quickly called her father again, locked herself in the bathroom, and called the police. Within minutes, the police arrived and found the defendant in the backyard. He was carrying a backpack with personal items and also had a screwdriver.

The police conducted a show-up shortly thereafter with the defendant on the street.1 The witness was able to view the defendant from her kitchen window. The period of time between the witness's observation of the man breaking the window and the show-up was approximately twenty minutes. The witness immediately identified him as the man who was previously at the front door. The defendant was ultimately charged with burglary of an unoccupied dwelling, criminal mischief causing damage of two hundred dollars or less, and possession of burglary tools. The defendant made a post-Miranda confession whereby he admitted to having burglarized the house in order to get money for alcohol and drugs.

Prior to trial, the defendant moved to suppress the witness's identification of him. The witness testified at the motion to suppress hearing. The motion was denied. At trial, over defense objection, the State introduced the witness's out-of-court show-up identification and had the witness make an in-court identification of the defendant. The defendant was convicted of the lesser-included offense of trespass.

*218The appellant now argues that the trial court abused its discretion by not suppressing the identification by the witness because it was based upon the impermissibly suggestive show-up. Because there was no error, we affirm.

STANDARD OF REVIEW

We review the trial court's denial of the motion to suppress the out-of-court identification for abuse of discretion. Walker v. State, 776 So. 2d 943, 945 (Fla. 4th DCA 2000) ("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."); Lee v. State, 635 So. 2d 128, 130 (Fla. 3d DCA 1994) ("The decision to admit an out of court identification was within the sound discretion of the trial court."). The court has not abused its discretion where the "court's decision [is] well supported by substantial and competent evidence." Walker, 776 So. 2d at 945.

ANALYSIS

A "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." Walker, 776 So. 2d at 945. Furthermore, "[a]lthough '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's independent recollection of the suspect without being influenced by the suggestiveness of the procedure." Id. When evaluating whether a show-up is impermissibly suggestive, "[t]he test promulgated by the United States Supreme Court and adopted by [the Florida Supreme] Court is twofold: (1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification; and (2) if so, considering the totality of the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification." Walton v. State, 208 So. 3d 60, 65 (Fla. 2016).

The defendant argues that the police conducted an unnecessarily suggestive show-up, in light of the witness's testimony, including but not limited to the pre-show-up comments from law enforcement to the witness "that they had already gotten him." The defendant argues that this unnecessarily suggestive show-up created "a substantial likelihood of irreparable [mis]identification." However, even where a "show-up procedure may have been suggestive," a court may still find that "based on the totality of the circumstances, the identification was reliable and there was no likelihood of irreparable misidentification." Lassiter v. State, 858 So. 2d 1134, 1136 (Fla. 5th DCA 2003).

In order to analyze whether under the totality of the circumstances there exists a substantial likelihood of irreparable misidentification, the court considers "(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." Walton, 208 So. 3d at 66.

In light of these factors, and examining each in turn, the totality of the circumstances in this case did not give rise to a substantial likelihood of irreparable misidentification. The first factor requires that the court look to the "opportunity of the witness to view the criminal at the time of the crime." Id.

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Related

Walker v. State
776 So. 2d 943 (District Court of Appeal of Florida, 2000)
Scott v. State
629 So. 2d 238 (District Court of Appeal of Florida, 1993)
State v. DiGuilio
491 So. 2d 1129 (Supreme Court of Florida, 1986)
Leronnie Lee Walton v. State of Florida
208 So. 3d 60 (Supreme Court of Florida, 2016)
Lee v. State
635 So. 2d 128 (District Court of Appeal of Florida, 1994)
State v. Jackson
744 So. 2d 545 (District Court of Appeal of Florida, 1999)
Lassiter v. State
858 So. 2d 1134 (District Court of Appeal of Florida, 2003)

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Bluebook (online)
275 So. 3d 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alfonso-v-state-fladistctapp-2019.