Florida Case Law

ANDERSON v. STATE, 4D04-4585 (Fla.App. 4 Dist. 12-20-2006)
JASON ANDERSON, Appellant, v. STATE OF FLORIDA, Appellee.
No. 4D04-4585. District Court of Appeal of Florida, Fourth
District. December 20, 2006.

Appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case
No. 03-7972 CF10A.

Carey Haughwout, Public Defender, and John M. Conway,
Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and
Georgina Jimenez-Orosa, Assistant Attorney General, West
Palm Beach, for appellee.

POLEN, J.

Appellant, Jason Anderson, timely appeals convictions of
robbery with a deadly weapon and attempted robbery with a
deadly weapon. We affirm the former conviction and reverse
and remand for new trial as to the latter.

The facts material to this appeal are as follows. Benjamin
Dominicis was working behind the counter at a Papa John’s
pizza restaurant in Hollywood when, at approximately 2:40
p.m., he suddenly noticed someone standing next to him. The
man was holding a screwdriver in his hand and asked
Dominicis, “Can you do me a favor and open the cash
register?” Dominicis said he could not and was able to
escape to the office in the back of the restaurant and call
911. Ashley Melroy, another Papa John’s employee, witnessed
what transpired between Dominicis and his assailant.
However, Melroy could not see the man’s face because he had
a shirt over his head and left immediately upon seeing
Melroy retrieve her cellular phone.

That same day, Julio Davalos was working as a cashier at a
Shell gas station in Hollywood. At about 3:00 p.m., while
Davalos was attending to customers, a man with a
screwdriver in his hand approached Davalos from the side
and tried to push him away from the cash register. When
Davalos did not move, the man demanded that Davalos open
the cash register. Davalos complied and the man took the
money and left the store. Davalos saw the man’s face as he
left.

At that time, Sveen Zamalloa was arriving at work to
relieve Davalos. As Zamalloa was parking his car, he saw
someone leaving the gas station store. The person attracted
Zamalloa’s attention because he had something resembling a
bandage on his hand and hurriedly left the store. The
person came close, within four steps, of Zamalloa’s car,
enabling Zamalloa to look at him for roughly five seconds.

At 3:30 p.m., police officers captured a man, later
identified as Anderson, believing him to be the perpetrator
of the above robberies. The officers continued detaining
Anderson at the location where he was caught, while other
officers separately brought Dominicis, Melroy, Davalos, and
Zamalloa to the site. All four witnesses positively
identified Anderson as the perpetrator of either the Shell
gas station or Papa John’s robberies.

On appeal, Anderson argues that the trial court committed
reversible error in permitting the prosecution to introduce
the show-up identifications.[fn1] “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.” Walker, 776 So. 2d
at 945. “Show-up” procedures always carry some degree of
suggestiveness because the witness is presented with only
one suspect for identification. Perez v. State, 648 So. 2d
715, 719 (Fla. 1995); see also Macias v. State, 673 So. 2d
176, 181 (Fla. 4th DCA 1996). A show-up identification is
not valid if there is a substantial likelihood of
irreparable misidentification under the totality of the
circumstances. See Blanco v. State, 452 So. 2d 520, 524
(Fla. 1984), cert. denied, 469 U.S. 1181. The following
factors should be considered in making this determination:

(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.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

We find that the circumstances surrounding the show-up
identifications provided by Dominicis and Melroy gave rise
to a substantial likelihood of irreparable
misidentification. Both were brought to the show-up within
approximately a half-hour of the attempted robbery of Papa
John’s, and both testified that they were certain the man in
the show-up was the same man who attempted to rob the
restaurant. However, Dominicis testified that before
arriving at the show-up, the police told him that they were
detaining someone who had a screwdriver and was wearing
clothing fitting the description given by Dominicis. The
first district condemned similar police conduct in Smith v.
State, 362 So. 2d 417, 419 (Fla. 1st DCA 1978) (reversing
where, prior to witness identification of defendant via
photo array, police officers told witness that they had
recently taken into custody a suspect who fit the
description witness had given them). We reiterate this
admonishment and exhort law enforcement personnel to always
avoid these types of suggestive pre-identification
communications.

We also find that Melroy’s show-up identification did not
carry with it adequate indicia of reliability to merit
admission into evidence, as Melroy was unable to observe
the assailant’s face during the attempted robbery of Papa
John’s. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977)
(“[R]eliability is the linchpin in determining the
admissibility of identification testimony.”). However, we
conclude that Zamalloa’s and Davalos’ identifications were
sufficiently reliable as both men clearly saw the person
who robbed the Shell gas station and both positively
identified that person as Anderson during the show-up
procedure.[fn2]

Based on the foregoing, we conclude that of the four
show-up identifications at issue, only Melroy’s and
Dominicis’ were so unreliable that their admission violated
Anderson’s due process rights. Since these identifications
pertained only to the charge of attempted robbery with a
deadly weapon of Papa John’s, we find no reason to reverse
Anderson’s conviction for robbery with a deadly weapon of
the Shell gas station and therefore affirm that conviction.
However, Melroy’s and Dominicis’ show-up identifications
were crucial to the State’s case against Anderson for the
attempted robbery of the Papa John’s because there were no
other out-of-court identifications, or for that matter
in-court identifications, linking Anderson to that crime.
See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)
(“Under the harmless error analysis, if there is a
reasonable possibility that an error affected the verdict,
then such error is harmful.”). As such, we reverse
Anderson’s conviction for the attempted robbery of Papa
John’s and remand for new trial on that charge only. See
Rohan v. State, 696 So. 2d 901, 904 (Fla. 4th DCA 1997)
(reversing convictions for three of five joined offenses).

We also note a possibly fatal variance contained in the
information. The State mistakenly identified Jose Gutierrez
rather than the Papa John’s restaurant, of which Gutierrez
was the manager, as the victim in Count III, i.e., the
attempted robbery of Papa John’s. Because we reverse
Anderson’s conviction as to Count III due to an improper
show-up procedure, we find that the alleged discrepancy as
regards the information is not dispositive in this case.
However, we suggest that the State correct the information
to accurately identify Papa John’s as the victim upon
retrial.

Affirmed in part; Reversed in part; Remanded.

KLEIN and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for
rehearing.

[fn1] Anderson’s pretrial identification is considered a
“show-up” procedure, which occurs when the police take a
witness shortly after the commission of an observed crime
to where they are detaining a suspect, thereby giving the
witness an opportunity to identify the suspect as the
perpetrator of the crime. Walker v. State, 776 So. 2d 943,
945 (Fla. 4th DCA 2000) (citation omitted).

[fn2] Zamalloa testified that before being taken to identify
Anderson, an officer told him that the police “need[ed] him
to recognize someone,” and that on the way to the show-up,
he overheard someone on the police radio stating, “we got
him.” We find that these communications, individually or in
aggregate, do not reach the level of impermissible
suggestiveness condemned in Smith, 362 So. 2d at 419, and
which we now find improperly occurred as regards Dominicis.