EUGENE MCKENNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eugene McKenney was convicted of armed robbery and aggravated assault arising from a single criminal act. The First District Court of Appeal affirmed his armed robbery conviction but reversed the aggravated assault conviction, finding that dual convictions for these offenses arising from a single act violated Florida law.
The court affirmed the admission of the victim's in-court identification, finding no indication that the photo identification procedure was unnecessarily suggestive and that the in-court identification was reliable. The court affirmed that an adequate Richardson hearing was conducted and no prejudicial discovery violation occurred. The court agreed that the appellant was improperly convicted and sentenced of both armed robbery and aggravated assault for a single act and reversed the aggravated assault conviction.
[1] An in-court identification is admissible if it is reliable, even if a prior out-of-court identification procedure was suggestive, provided the witness had an adequate opp…
[2] A harmless error analysis applies to the admission of potentially suggestive identification evidence when other independent evidence of guilt is overwhelming.
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Join FLexlaw to unlock all legal intelligence“there is no indication in the record that the procedure used by the police in obtaining an out-of-court photo identification of the appellant was unnecessarily suggestive under the test enunciated in Grant v. State”
Establishes the court's analysis of whether the photo identification procedure was proper under Florida law
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Join FLexlaw to unlock all legal intelligenceMcKenney was convicted of armed robbery and aggravated assault. The victim identified McKenney in court based on an out-of-court photo identification …
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SHIVERS, Judge.
The appellant, Eugene McKenney, raises three arguments following his conviction and sentence for armed robbery and aggravated assault: (1) that the trial court erred in allowing the victim to make an in-court identification of the appellant based on an improperly suggestive photo identification; (2)that the trial court erred in failing to conduct an adequate Richardson hearing into the State’s failure to disclose certain photographs prior to trial; and (3) that the trial court erred in imposing judgment and sentence for both armed robbery and aggravated assault arising from a single act.
We affirm the trial court’s failure to suppress the victim’s in-court identification of the appellant. First, there is no indication in the record that the procedure used by the police in obtaining an out-of-court photo identification of the appellant was unnecessarily suggestive under the test enunciated in Grant v. State, 390 So. 2d 341 (Fla.1980). Second, despite the unconstitutionality of a physical line-up which was conducted after the photo identification, the evidence supports the reliability of the victim’s in-court identification of the appellant, based on both her opportunity to view appellant during the commission of the crime, and on the earlier photo identification. Even assuming arguendo the victim’s in-court identification of appellant was improper, the error would be harmless in this case, in light of both the physical evidence linking appellant to the crime scene and of the testimony given by the codefendant.
We affirm appellant’s second issue as well, finding that the trial court conducted an adequate hearing under Richardson v. State, 246 So. 2d 771 (Fla.1971), and properly concluded that if a discovery violation indeed occurred, the violation did not cause the appellant to be prejudiced in his ability to prepare for trial.
We agree with appellant’s third argument on appeal, finding that he was improperly convicted and sentenced of both armed robbery and aggravated assault arising from a single act. Richardson v. State, 523 So. 2d 746 (Fla. 5th DCA 1988), Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988).
Accordingly, appellant’s conviction for armed robbery is AFFIRMED; the conviction for aggravated assault is REVERSED.
THOMPSON and ZEHMER, JJ., concur.
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Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989)…iminal episode, are improper. Carawan v. State, 515 So. 2d 161 (Fla.1987); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988); Brown v. State, 529 So. 2d 1247 (Fla. 4th DCA 1988); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1988); McKenney v. State, 529 So. 2d 367 (Fla. 1st DCA 1988); Neal v. State, 527 So. 2d 966 (Fla. 5th DCA 1988); Richardson v. State, 523 So. 2d 746 (Fla. 5th DCA 1988); Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). Denmark’s convictions for both use of a firearm during the commis…
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Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989)…ed upon the same underlying act, our sister courts have applied the analysis employed in Carawan to find that such convictions violate the prohibition against double jeopardy. Meadows v. State, 534 So. 2d 1233 (Fla. 4th DCA 1988); McKenney v. State, 529 So. 2d 367 (Fla. 1st DCA 1988); Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988). Further, this court has held that Carawan is retroactively applicable to convictions which were obtained prior to the opinion’s rendition. Glenn v. State, 537 So. 2d 611 (Fl…
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Scott v. State, 629 So. 2d 238 (Fla. 3d DCA 1993)…Fla. 3d DCA 1982). In these circumstances, particularly in the light of the fact that stolen property was found on Scott’s person, the admission of the out-of-court identification is properly regarded as merely harmless error. See McKenney v. State, 529 So. 2d 367 (Fla. 1st DCA 1988). See generally State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Affirmed. . The officers stated: Q. Tell us now, Officer, what is the next thing that you do when you lose sight of these individuals that you're chasing? A. As I'…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Grant v. State, 390 So. 2d 341 (Fla. 1980)
- Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988)
- Richardson v. State, 523 So. 2d 746 (Fla. 5th DCA 1988)