ANTHONY JOSEPH FERREIRA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Joseph Ferreira was convicted of first-degree murder and attempted armed robbery. On appeal to Florida's Fifth District Court of Appeal, he challenged the trial court's use of the standard jury instruction on reasonable doubt and the admission of a photographic eyewitness identification made one week after the crime. The court affirmed his conviction, finding no error in either ruling.
The trial court did not err in using the standard jury instruction on reasonable doubt, as Florida courts have repeatedly held that the standard instruction adequately defines reasonable doubt. The pretrial identification was sufficiently reliable despite the one-week interval between the crime and identification, and even if admission of the photographic identification was error, it was harmless in light of the eyewitness's in-court identification and DNA evidence.
[1] The standard jury instruction on reasonable doubt is constitutionally adequate and does not require modification by a special jury instruction.
[2] An issue is not preserved for appellate review if the appellant failed to object at trial on the grounds now raised on appeal.
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Join FLexlaw to unlock all legal intelligence“The Florida Supreme Court has repeatedly held that the standard jury instruction adequately defines reasonable doubt.”
Establishes the controlling legal standard for jury instructions on reasonable doubt in Florida, rejecting the defendant's argument for a special instruction.
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Join FLexlaw to unlock all legal intelligenceFerreira was convicted of first-degree murder and attempted armed robbery with a deadly weapon. A victim was stabbed to death, and an eyewitness ident…
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THOMPSON, Judge.
The appellant was convicted of first degree murder1 and attempted armed robbery with a deadly weapon.2 He raises two arguments on appeal.
First, he argues the court erred in reading the standard jury instruction on reasonable doubt. The instruction submitted by the state was the standard jury instruction with no changes. He argues the court should have given the special jury instruction on reasonable doubt that his attorney authored. The Florida Supreme Court has repeatedly held that the standard jury instruction adequately defines reasonable doubt. Fla. Std. Jury Instr. (Crim.) 2.03 [p 23]; Brown v. State, 565 So. 2d 304, 307 (Fla.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990); Kearse v. State, 662 So. 2d 677, 681 (Fla.1995) (“[T]his court has previously considered and rejected similar constitutional challenges directed at the reasonable doubt instruction.”); Esty v. State, 642 So. 2d 1074, 1080 (Fla.1994) (taken as a whole, standard jury instructions’ use of the words “possible doubt, a speculative, imaginary or forced doubt,” correctly conveyed concept of reasonable doubt to jury.), cert. denied, 514 U.S. 1027, 115 S.Ct. 1380, 131 L.Ed.2d 234 (1995). The trial court made no error in this regard.
The second issue raised on appeal is whether the trial court erred in allowing the detective to testify that an eye-witness picked the appellant out of a photographic lineup approximately one week after the victim was stabbed to death. The appellant argues that the identification procedure was not sufficiently close in time to the crime to justify its use under section 90.801(2)(c), Florida Statutes (1995). We reject appellant’s argument for several reasons. Proee-durally, this issue was not preserved for appeal because the appellant did not object at trial based on the ground he now raises. Bertolotti v. Dugger, 514 So. 2d 1095, 1096 (Fla.1987); Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982); Doherty v. State, 640 So. 2d 1220 (Fla. 5th DCA 1994).
Even if the issue were preserved for appeal, the pretrial identification was sufficiently close in time to the crime to be considered reliable. Although appellant argues an identification one week after the crime was unreliable, he overlooks cases which have held longer periods of time to be sufficiently reliable. See Macias v. State, 673 So. 2d 176, 181 (Fla. 4th DCA) (holding that thirty-two days between crime and voice identification was not unreasonably long, and was “an extremely strong basis for independent reliability ....”), rev. denied, 680 So. 2d 423 (Fla.1996). See also, U.S. v. Barron, 575 F. 2d 752, 755 (9th Cir.1978) (two month time lapse did not indicate identification was unreliable); Cikora v. Wainwright, 661 F.Supp. 813, 822 (S.D.Fla.1987) (one month time lapse did not undermine reliability of identification), affirmed, 840 F. 2d 893 (11th Cir.1988). The time period between the crime and the identification was neither unduly lengthy nor did it undermine the reliability of the identification.
The eyewitness also testified and identified the appellant in court. Additionally, the appellant’s blood-stained clothing contained DNA matching the victim’s blood. Because this evidence was introduced with out objection, any error in admitting the pretrial identification was, at most, harmless error. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
JUDGMENT and SENTENCE AFFIRMED.
DAUKSCH and COBB, JJ., concur. . § 782.04(l)(a)2, Fla.Stat. (1995).
. §§ 777.01(1), 812.13(2)(a), Fla.Stat. (1995).
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Ibar v. State, 938 So. 2d 451 (Fla. 2006)…ee also A.E.B. v. State, 818 So. 2d 534 (Fla. 2d DCA 2002) (finding admissible under section 90.801(2)(c) an out-of-court identification made by a witness who saw the juvenile approach the victim’s house and go into the backyard); Ferreira v. State, 692 So. 2d 264 (Fla. 5th DCA 1997) (finding admissible the eyewitness out-of-court identification of the defendant from a photographic lineup one week after the murder); Brown v. State, 413 So. 2d 414 (Fla. 5th DCA 1982) (finding admissible the victim’s out-of-cou…
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Denesiz Letroy Smith v. State, 880 So. 2d 730 (Fla. 2d DCA 2004)…erally been applied to allow testimony concerning an out-of-court identification in a lineup, a photo-pack, or a showup.2 See A.E.B., 818 So. 2d at 535 (showup); Lewis v. State, 777 So. 2d 452, 453-54 (Fla. 4th DCA 2001) (showup); Ferreira v. State, 692 So. 2d 264, 265 (Fla. 5th DCA 1997) (photopack); Brown v. State, 413 So. 2d 414 (Fla. 5th DCA 1982) (photopack). A lineup was involved in Eans, 366 So. 2d 540, a case decided before the effective date of the evidence code. Florida courts have limited the scop…
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Lawson v. State, 884 So. 2d 540 (Fla. 4th DCA 2004)…anted on the merits had an evidentiary hearing been held, but even if it had, the improper admission of the pretrial identification would have been harmless given the very strong DNA evidence connecting Lawson with the crimes. See Ferreira v. State, 692 So. 2d 264, 265-66 (Fla. 5th DCA 1997). Lawson also claims that the court erred in allowing the state to exercise a racially motivated peremptory challenge against a prospective juror. He maintains that the reason the state gave for exercising the challenge w…
Authorities Cited (16 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- Kearse v. State, 662 So. 2d 677 (Fla. 1995)
- Bertolotti v. Dugger, 514 So. 2d 1095 (Fla. 1987)
- Brown v. State, 565 So. 2d 304 (Fla. 1990)
- Esty v. State, 642 So. 2d 1074 (Fla. 1994)
- United States v. Barron, 575 F.2d 752 (9th Cir. 1978)
- Cikora v. Dugger, 840 F.2d 893 (11th Cir. 1988)
- MacIas v. State, 673 So. 2d 176 (Fla. 4th DCA 1996)
- Nuclear Mgmt. & Res. Council, Inc. v. Public Citizen, 498 U.S. 992 (U.S. 1990)