Jones v. State

844 So. 2d 745, 2003 WL 21032046
District Court of Appeal of Florida·Decided May 9, 2003·No. 5D02-2160·Published·Cited by 3 cases

Opinion

844 So.2d 745 (2003)

Vantese JONES, Appellant,
v.
STATE of Florida, Appellee.

No. 5D02-2160.

District Court of Appeal of Florida, Fifth District.

May 9, 2003.

*747 James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

Vantese Jones was convicted by jury of robbery, kidnaping and armed burglary (with a special finding that he used a firearm in the commission of these offenses), and grand theft of an automobile. In this appeal from the judgment and sentence he raises issues concerning the in-court identification of him by a victim, and whether the kidnaping was only incidental to the commission of the other crimes. We affirm.

FACTS

David Singh, a profoundly hearing impaired native of Guyana, was working as a custodian at the First Baptist Church of Central Florida and School in Orlando. On the night in question Singh observed Jones, who was armed with a semi-automatic weapon, and two other men enter the building. Even though Jones was wearing a hood and white gloves, Singh testified that he immediately recognized him because Jones used to work for an outside cleaning company that the church had employed for about a year.

Jones pointed the gun at Singh, knocked him to the floor, and took his wallet and school keys. Jones then picked Singh up, led him at gunpoint to the financial office, and demanded that Singh show him where any money was located. Singh, however, did not know where any money was kept. According to Singh, Jones then began opening cabinets using the keys that he had taken. When the other two males came into the office, Singh recognized one as Jones' brother who had also worked for the cleaning company. Singh was then laid down on the floor again.

Shortly thereafter, Jones' brother tied Singh's hands behind his back, and placed a see-through white plastic bag over his head. Singh was picked up, moved into a hallway and placed on the floor again. Singh testified that he worked the plastic bag up and saw that Jones and his accomplices were attempting to break into a soda machine. Singh laid on the ground in the hallway for approximately 90 minutes. When Jones and the others turned out the lights, Singh escaped through a rear door and went across the street to a parking lot at a Lowes home improvement store.

As Singh ran from the school, he saw a green car parked next to his own red car, which he noted had been moved from where he had earlier parked it. A few minutes later Singh and some Lowes' employees observed the green car and Singh's red car race through the parking lot in opposite directions.

The police responded to the church around midnight. Singh, through an interpreter told Investigator Linguanti what had transpired. The investigation revealed that all of the soda machines and multiple offices had been ransacked. They observed that a white powdery substance was on the floor and that footprints had been left in it. At the trial an FDLE crime lab specialist testified that she was "100% sure" that Jones' left shoe made the impressions in the substance.

*748 After the owner of the cleaning service that had employed Jones identified him, a patrol car was sent to Jones' house, and confirmed that Jones owned a green car. In the early morning hours immediately after the events at the church school, Investigator Linguanti showed Singh a photo line-up. Singh immediately identified Jones as the perpetrator and circled his picture.

Jones was arrested twelve hours after the robbery. At the time of the arrest the police found a coin wrapper, some loose coins and a plastic bag full of coins in his car. The police then located Singh's car and found a white powdery substance on the floor of the driver's side, along with some tools that did not belong to Singh.

The case proceeded to trial in due course. When the State called Singh as a witness, he was asked to identify Jones as the perpetrator of the crimes, and he successfully did so. As his testimony progressed, however, he became more and more difficult to understand, and the trial judge called a recess to discuss this problem with counsel outside the presence of the jury. During this discussion the trial judge suggested that the State work with the interpreters for Singh in an attempt to "move things along a little faster" for the next day.

On the following morning the State related that prior to Singh's testimony the previous day, and prior to his in-court identification of Jones, it had showed Singh the photo line-up and talked with him about where Jones and the other defendants were seated in the courtroom. Jones moved for a mistrial based on the suggestive in-court identification. The trial court denied the motion, but allowed Jones to cross-examine Singh regarding the identification. On redirect examination Singh testified that on the night of the robbery no one had told him which photo was that of Jones.

After the State rested, Jones moved for a judgment of acquittal on all counts, arguing that the kidnaping, aggravated assault, armed burglary and grand theft were all subsumed into the robbery. The court denied the motion, finding that the physical moving of the victim by Jones was not inherent in the robbery, and therefore constituted a separate crime. The jury found Jones guilty as charged.

THE IN-COURT IDENTIFICATION

Jones asserts that the State engaged in prosecutorial misconduct when it counseled with Singh regarding where Jones would be sitting in the courtroom, and that his motion for mistrial should have been granted. The standard of review in considering the denial of a motion for mistrial is abuse of discretion. Franklin v. State, 825 So.2d 487 (Fla. 5th DCA 2002) (citing Cole v. State, 701 So.2d 845, 853 (Fla.1997)), cert. denied, 523 U.S. 1051, 118 S.Ct. 1370, 140 L.Ed.2d 519 (1998). A motion for mistrial should only be granted when necessary to ensure that a defendant receives a fair trial. Franklin, 825 So.2d at 489. Here we conclude that the trial court did not abuse its discretion.

As applied to cases involving faulty identification procedures, a new trial should be granted only if it is demonstrated that a criminal defendant's due process rights and concomitant right to a fair trial have been violated as a result of an irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The danger of allowing improper identifications of a criminal defendant is, obviously enough, that innocent persons might be convicted. See Macias v. State, 673 So.2d 176, (Fla. 4th DCA), review denied, 680 So.2d 423 (Fla. 1996). It is for that reason that impermissibly suggestive identification procedures that might lead *749 to an irreparable misidentification breaches a criminal defendant's right to a fair trial in violation of that person's right to due process.

There is, however, no per se rule associated with an in-court identification that is tainted with faulty or suggestive out-of-court identification procedures. Manson.

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Jones v. State, 844 So. 2d 745, 2003 WL 21032046 (Fla. Ct. App. 2003).

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