ANTHONY F. SIMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Anthony F. Simon appealed two convictions for breaking and entering with assault and robbery. The Florida District Court of Appeal affirmed both convictions, finding that the state presented sufficient evidence of Simon's identity as the perpetrator through witness testimony based on voice, build, physical features, and demeanor.
The court held that sufficient, competent, and substantial evidence was presented to prove Simon's identity as one of the perpetrators beyond a reasonable doubt. Witness identification based on voice, build, physical features, posture, and manner of walking constitutes competent evidence of identity.
“A witness may give evidence as to a person's identity from any facts that lead him to believe he knows the identity of the person in question and may base his conclusion on size, manner of walk, tone of voice or any mark or peculiarity of the person being identified.”
Establishes the broad basis upon which witness identification evidence may be admitted in Florida law.
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Join FLexlaw to unlock all legal intelligenceSimon was charged with two separate home invasions and robberies occurring the same night. At the Stubblefield home, the housekeeper and Mrs. Stubblef…
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This is an appeal (Case No. 67-214) to reverse a judgment of conviction and life sentence in a prosecution for breaking and entering the dwelling of James and Edith Joyce and assaulting persons lawfully therein and for robbery. This is also an appeal (Case No. 67-215) to reverse a judgment of conviction and life sentence in a prosecution for breaking and entering a dwelling house of Elsie Stubblefield and assaulting persons within said premises and for robbery.
*683Informations were filed charging the defendant, Anthony F. Simon, with the offenses of which he was convicted. The defendant was arraigned on both informa-tions and pleaded not guilty. The two cases were consolidated for a non-jury trial. The defendant was found guilty on all counts and sentenced to life imprisonment in Appeal Case No. 67-214, and to life imprisonment in Appeal Case No. 67-215 to begin at the expiration of the life sentence imposed in the previous case.
The issue presented by this appeal concerns the identity of the defendant as the perpetrator of the crimes in question.
At the time that the intruders entered the Stubblefield home, the housekeeper was the only person present and she testified that she was awakened by a hand that was held against her face and at that time did not see the assailants but did hear their voices. She testified that she saw the assailants place Mrs. Stubble-field on a bed on latter’s return to her home and that the defendant was in the residence the night in question. Mrs. Stub-blefield testified that she returned home at 11:00 P.M. and that as she went into the hall, two men pounced on her and that the defendant came out of the living room holding a gun and that she would “never forget the shape of his head in his mask and his posture and the way he walked towards me.” Mrs. Stubblefield identified the defendant and said although she couldn’t see his face, she saw him and that she was sure he was in her home this night.
The intruders entered the Joyce home, which is two blocks from the Stubblefield home, at 11:30 P.M. The testimony shows that one of the robbers placed his hand over Joyce’s mouth, pointed a pistol at him and said, “If you make any noise, I am going to kill you”. This man was wearing a mask and the men were in the Joyce residence about forty-five minutes. Mr. Joyce identified the defendant by his voice and build. Mrs. Joyce testified that both had masks on when in the room but the masks were off, hats were off and the lights were on when they went out the door. She also testified that she recognized their voices and profiles and that the defendant was the one that had the gun.
Sufficient, competent and substantial evidence was presented to show that the defendant was one of the perpetrators of the crimes in question. A witness may give evidence as to a person’s identity from any facts that lead him to believe he knows the identity of the person in question and may base his conclusion on size, manner of walk, tone of voice or any mark or peculiarity of the person being identified. 29 Am.Jur.2d, Evidence, § 367; 13 Fla.Jur., Evidence, § 162. A witness may be permitted to identify an accused from having heard his voice. Riner v. State, 128 Fla. 848, 176 So. 38 (1937); Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A., N.S., 373 (1907); Martin v. State, 100 Fla. 16, 129 So. 112 (1930); Wright v. State, 182 So.2d 264 (Fla.App.1966); Ross v. State, 190 So.2d 187 (Fla.App.1966).
Where evidence of identity is unsatisfactory, convictions have been reversed upon the ground that the prosecution must prove identity beyond a reasonable doubt, but in this case, the identity was proved beyond a reasonable doubt and both judgments of conviction are therefore affirmed.
Affirmed.
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Citator
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Weinshenker v. State, 223 So. 2d 561 (Fla. 3d DCA 1969)…witness may be permitted to identify an accused solely from having heard his voice and that such identification is direct and positive proof of a fact the probative value of which was a question for the jury. See, too, Simon v. State, Fla.App. 1968, 209 So. 2d 682. We hold that by introducing the identification testimony of Miss C. R. the state met its burden, described above, of proving to the exclusion of every reasonable doubt that Weinshenker was Billy. Once the state met this burden, the issue of identi…
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Worley v. State, 263 So. 2d 613 (Fla. 4th DCA 1972)…presence in the phone booth. Defendant was also identified by voice by the officer receiving both calls. Such voice identification by ear is properly admissible in Florida. Cason v. State, Fla.App.1968, 211 So. 2d 604; Simon v. State, Fla.App.1968, 209 So. 2d 682 and Weinshenker v. State, Fla.App.1969, 223 So. 2d 561. The credibility of such evidence is clearly a jury question. In addition, a tape was made of defendant’s voice and it was sent, along with tapes of the bomb threats, for spectrographic analysi…1 / 2
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Alea v. State, 265 So. 2d 96 (Fla. 3d DCA 1972)…ue is a question for the jury. Pennington v. State, 91 Fla. 446, 107 So. 331; Mack v. State, 54 Fla. 55, 44 So. 706, 13 L.R.A.,N.S., 373, 14 Ann.Cas. 78; Martin v. State, 86 Fla. 616, 98 So. 827.” * * * * * * Also see Simon v. State, Fla.App.1968, 209 So. 2d 682. Furthermore, a recorded telephone conversation made with the consent of one of the parties to the conversation, is admissible. See Walker v. State, Fla.App.1969, 222 So. 2d 760; Barber v. State, Fla.App.1965, 172 So. 2d 857. This is particularly tr…
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
- Town of Boynton v. State, 100 Fla. 16 (Fla. 1930)
- Wright v. State, 182 So. 2d 264 (Fla. 3d DCA 1966)
- Dock Mack v. State, 54 Fla. 55 (Fla. 1907)
- Riner v. State, 128 Fla. 848 (Fla. 1937)
- Ross v. State, 190 So. 2d 187 (Fla. 3d DCA 1966)