WILLIE ASHFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Ashford was convicted of rape and sentenced to death. After Furman v. Georgia mandated reconsideration of death sentences, he was resentenced to life imprisonment. On appeal, Ashford challenged the admission of eyewitness identification testimony obtained through pre-indictment, counsel-free viewings and argued prosecutorial error in cross-examination based on an FBI report, but the Florida Supreme Court affirmed his conviction and sentence.
Pre-indictment identification procedures are not subject to the Wade-Gilbert-Stovall requirements, which apply only to post-indictment procedures. The trial court did not commit fundamental error in allowing cross-examination based on the FBI report, and any error was harmless.
[1] Pre-indictment identification procedures are not subject to the exclusionary rules established in United States v. …
[2] An appellate court should consider issues not presented to the trial court only when fundamental error can be shown.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Both the Supreme Court of the United States (Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)), and this Court (Chaney v. State, 267 So. 2d 65 (Fla.1972)), have considered this contention and refused to interpret the Wade doctrine so as to include pre-indictment procedures.”
Establishes that pre-indictment identification procedures are outside the scope of Wade protections, which apply only to post-indictment procedures.
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Join FLexlaw to unlock all legal intelligenceThe victim was forced into her home at gunpoint, robbed, beaten with a pistol, and raped. Three to four days after the attack, the victim was shown As…
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This is an appeal from an adjudication of guilt of rape and the imposition of the death penalty. Fla.Const., art. V, § 4, F.S.A. Pursuant to the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the decision of this Court in Anderson v. State, 267 So.2d 8 (Fla.1972), Ashford has been resentenced to life imprisonment by the trial court, but this Court has retained jurisdiction of his appeal.
The victim of the attack testified that a man had forced his way into her home, robbed her of the twenty cents in her purse, beat her with a pistol, and raped her. After her husband returned home from work several hours after the attack, the alleged rape was reported to the Chief of Police of Cler-mont, the victim was treated at a local hospital for shock, but was not examined.
Three or four days after the attack, the victim was called to the police station and given a view of Ashford being questioned by the police chief in connection with another crime. The chief requested that she view Ashford because he looked like the man she had described and he was wearing a gray hat similar to one she had *518described as being worn by her attacker. On a pretext suggested by the chief, the victim was able to confront Ashford in the chief’s office with no one but herself, Ashford, and the chief present.
Later, she requested and was given another view of Ashford at the Lake County jail while he was accompanied only by a white deputy sheriff. Appellant contends that the two views of the accused afforded the victim constitute reversible error in that no counsel was present and the accused was not advised that he was under suspicion in the rape case and entitled to counsel therefor. Ashford says that the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), establish that evidence of such viewings and in-court identification which is the fruit of illegal pretrial identification procedures are inadmissible. Although United States v. Wade, supra,, Gilbert v. California, supra, and Stovall v. Denno, supra, apply to post-indictment procedures, Ashford urges that the principles are equally applicable to pre-indictment identification procedures.
Both the Supreme Court of the United States (Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)), and this Court (Chaney v. State, 267 So.2d 65 (Fla.1972)), have considered this contention and refused to interpret the Wade doctrine so as to include pre-indictment procedures. We affirm the position which this Court adopted in Chaney and find the contention to be without merit.
Ashford argues that the trial court erred in allowing the prosecutor to cross-examine him on the basis of the “F.B.I. report” which was secondary evidence of the information contained therein, and therefore inadmissible. It is well established that this Court will not consider issues not presented to the trial court unless fundamental error can be shown. Clark v. Osceola Clay & Top Soil Company, 99 So.2d 869 (Fla.1958).
Ashford admits that the issue was not raised before the trial court, but urges that the use of the report by the prosecutor constituted fundamental error. In considering the issue, this Court has said:
“ ‘Fundamental error,” which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.” Sanford v. Rubin, 237 So.2d 134, 137.
We find no evidence that the error, if any, was fundamental; in fact, we find no evidence that the error, if any, was other than harmless. Therefore, it could not present a basis for reversal even if it were properly before this Court. Fla.Stat. § 924.33, F.S.A.; North v. State, 65 So.2d 77 (Fla.1953), and DeLaine v. State, 262 So.2d 655 (Fla.1972).
The judgment of the trial court appealed from is affirmed.
It is so ordered.
CARLTON, C. J., and ROBERTS, ERVIN, BOYD, McCAIN and DEKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (25 total)
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Lynch v. State, 293 So. 2d 44 (Fla. 1974)…had no applicability to a pre-indictment identification such as that which occurred in the case sub judice. See also Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Chaney v. State, 267 So. 2d 65 (Fla.1972); Ashford v. State, 274 So. 2d 517 (Fla.1973). Defendant also says that a tape recording of testimony given at a preliminary hearing, involving two separate charges against defendant, was improperly admitted. One charge was the instant case and the other was a similar charge involvi…
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Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)…nal dimension.” Justice Adkins reminded us in Sanford v. Rubin, Fla.1970, 237 So. 2d 134, that “fundamental error . is error which goes to the foundation of the case or goes to the merits of the cause of action.” See also Ashford v. State, Fla.1973, 274 So. 2d 517. No objection need be made to preserve an attack on an error which is fundamental. Haley v. State, Fla.App.2d, 1975, 315 So. 2d 525. Likewise, it has been held that fundamental error may be raised by collateral attack through a motion for post-convi…
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Gibson v. State, 351 So. 2d 948 (Fla. 1977)…be raised at this time. Except where the error is fundamental, an appellate court must confine itself to a review of those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. Ashford v. State, 274 So. 2d 517 (Fla.1973); Silver v. State, 188 So. 2d 300 (Fla.1966). In any event, the alleged incompetence must be such that the trial was reduced to a mockery or a sham. Parker v. State, 295 So. 2d 312 (Fla. 1st DCA 1974); McCrae v. State, 313 So. 2d 429 (Fla.…
Previewing 3 of 25 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Stovall v. Denno, 388 U.S. 293 (U.S. 1967)
- Furman v. Georgia, 408 U.S. 238 (U.S. 1972)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- Kirby v. Illinois, 406 U.S. 682 (U.S. 1972)
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Earnest Eugene Anderson v. State, 267 So. 2d 8 (Fla. 1972)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)
- North v. State, 65 So. 2d 77 (Fla. 1953)
- First Nat'l Bank OF Clearwater v. Nelson, 267 So. 2d 65 (Fla. 1972)