GABRIEL BOWEN vs STATE OF FLORIDA

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

GABRIEL BOWEN,

Appellant,

v. Case No. 5D22-1546 LT Case No. 2017-CF-2572-A

STATE OF FLORIDA,

Appellee.

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Opinion filed January 20, 2023

3.850 Appeal from the Circuit Court for Marion County, Robert W. Hodges, Judge.

Gabriel Bowen, Crestview, pro se.

Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

EDWARDS, J. We affirm the trial court’s denial of Appellant’s Florida Rule of Criminal

Procedure 3.850 Motion, which raised two grounds of ineffective assistance

of counsel. As to Ground One, Appellant failed to demonstrate deficient

performance of his trial counsel with regard to the use of a certain out-of-

court photographic lineup that was presented to the two victims, only one of

whom picked out Appellant. Every photograph in the array had been edited

to depict the person as though he were wearing a black t-shirt, consistent

with the clothing described by the victims.

The photo lineup employed by police during its investigation contained

an image of Appellant that had been edited by FaceLogic, a third-party

company, to remove a facial tattoo and scar or cut on his face. Evidence

was presented that this was done in order for the various photographs in the

photo array to be more consistent with each other, as it would be difficult to

find a sufficient number of filler photographs of subjects visually similar to

Appellant who would also have a facial tattoo and scar. No evidence was

offered to suggest that any aspect of the photographic lineup procedure

employed here was otherwise unusual or in any manner improper.

The postconviction court found that the record confirmed that the

photographic lineup employed was not unnecessarily or inappropriately

suggestive; thus, it did not taint either the out-of-court or in-court identification

2 of Appellant as the one who committed the crimes. 1 The court also noted

that there was other evidence presented by the State upon which the jury

could have relied in finding Appellant guilty. The postconviction court

properly concluded that any motion to prohibit or limit evidence regarding the

photo lineup would have been denied. We agree with that court’s

observation that counsel cannot be deemed ineffective for failing to make a

meritless argument. See Schoenwetter v. State, 46 So. 3d 535, 546 (Fla.

2010).

Accordingly, we affirm as to Ground One. We affirm as to Ground Two

without need for discussion.

AFFIRMED.

EVANDER and HARRIS, JJ., concur.

1 See Mulazim v. Commonwealth, 600 S.W.3d 183 (Ky. 2020), and United States v. Allen, 416 F. Supp. 3d 1108 (D. Or. 2019), regarding the use of photographic lineups employing modified photos.