CALVIN HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Calvin Howard appeals his convictions for sexual battery, robbery, armed burglary, and aggravated battery. The court reverses and remands for a new trial, finding that the state failed to prove by clear and convincing evidence that the victim's in-court identification was independent of unnecessarily suggestive pretrial procedures.
The court reversed and remanded for a new trial because the state failed to prove by clear and convincing evidence that the in-court identification was independent of the suggestive pretrial procedures. The court found no other trial error but provided guidance on proper stipulations regarding polygraph examinations.
[1] An in-court identification must be proven by clear and convincing evidence to be based on the victim's observation at the scene of the crime, not on unnecessarily suggest…
[2] Stipulating to the use of a polygraph examination waives any objection to its reliability.
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Join FLexlaw to unlock all legal intelligence“the state failed to prove by clear and convincing evidence that the victim's in-court identification was based on her observation of appellant at the scene of the crime and not dependent on the unnecessarily suggestive pretrial procedures that were used in this case”
States the core legal standard for evaluating identification evidence and the basis for reversal.
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Join FLexlaw to unlock all legal intelligenceCalvin Howard was convicted of sexual battery with slight force, robbery with a deadly weapon, armed burglary of a structure, and aggravated battery. …
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GLICKSTEIN, Judge.
This is an appeal from a judgment of guilt as to sexual battery with slight force, robbery with a deadly weapon, armed burglary of a structure and aggravated battery and the sentences resulting therefrom.
We reverse and remand for new trial because the state failed to prove by clear and convincing evidence that the victim’s in-court identification was based on her observation of appellant at the scene of the crime and not dependent on the unnecessarily suggestive pretrial procedures that were used in this case. See United States ex rel. Moore v. People of Illinois, 577 F. 2d 411 (7th Cir.1978), cert. denied, 440 U.S. 919, 99 S.Ct. 1242, 59 L.Ed.2d 471 (1979); Simons v. State, 389 So. 2d 262 (Fla. 1st DCA 1980); and State v. Sepulvado, 362 So. 2d 324 (Fla. 2d DCA 1978), cert. denied, 368 So. 2d 1374 (Fla.1979).
We find no other error in the trial court, but mention the stipulation for the use of the polygraph examination for two reasons.
First, we remind counsel that by stipulating to its use, the defendant waives the underlying objection to reliability, thus mooting reliability as an issue. See DeLap v. State, 440 So. 2d 1242, 1247 (Fla.1983).
Second, we suggest that stipulations such as used here — namely, if an accused passes the examination, he takes a walk, and if he fails, he responds to the charges — should spell out in detail to what the parties have agreed: that the issue of .reliability has been waived by its execution; and that the stipulation and result will be received into evidence if unfavorable to the accused. With such recitations, together with execution by the accused and counsel, the trial can proceed without subjecting the jury to a debate on the pro and con of polygraph examinations. More important, the written word will eliminate uncertainty in the accused’s mind as to the stakes and the ramifications if he fails.
LETTS and HERSEY, JJ., concur.
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Citator
Cited By
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Thomas v. State, 494 So. 2d 248 (Fla. 4th DCA 1986)…2d at 387. Finally, appellant argues that Barbara Rice’s in-court identification of appellant should have been suppressed. In support of this he cites United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), and Howard v. State, 458 So. 2d 407 (Fla. 4th DCA 1984), which hold that if it can be shown by clear and convincing evidence that an in-court identification was independent of the lineup identification, then the in-court identification is admissible. Because this court agrees with the…
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Davis v. State, 516 So. 2d 953 (Fla. 4th DCA 1986)…ereof. We understand the word “objection,” used in this context, to mean the parties waived any evidentiary objection concerning the reliability of the results. The dissent relied upon Delap v. State, 440 So. 2d 1242 (Fla.1983), and Howard v. State, 458 So. 2d 407 (Fla. 4th DCA 1984). On rehearing, however, the state does not endorse the argument set forth in the dissent to our prior opinion in Davis, but restricts its argument for rehearing to the contention that requiring the trial court to give a proper in…1 / 3
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Thomas v. State, 494 So. 2d 240 (Fla. 4th DCA 1986)…court identification is not to be disallowed merely because a previous identification is found to be the result of an illegal arrest, if it is proven that the in-court identification is independent of the previous identification. In Howard v. State, 458 So. 2d 407 (Fla. 4th DCA 1984), this court found that such proof must be by clear and convincing evidence. Because this court agrees with the trial court that the live lineup was permissible, this is really not an issue. II The second issue is whether the tr…
Authorities Cited
- Delap v. State, 440 So. 2d 1242 (Fla. 1983)
- O'Quinn v. Estelle, 440 U.S. 919 (U.S. 1979)
- State v. Sepulvado, 362 So. 2d 324 (Fla. 2d DCA 1978)
- Howe v. S. Broward Hosp. Dist., 362 So. 2d 324 (Fla. 4th DCA 1978)
- United States ex rel. James Raymond Moore v. People OF the State OF Ill., 577 F.2d 411 (7th Cir. 1978)
- Simons v. State, 389 So. 2d 262 (Fla. 1st DCA 1980)