JAMES WILLIAM SWEET, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sweet appealed his rape conviction arguing that an impermissibly suggestive line-up violated his right to an independent in-court identification. The Florida District Court of Appeal affirmed the conviction, holding that clear and convincing evidence supported the witnesses' independent identification of Sweet at trial despite the tainted line-up.
The court held that the in-court identification was properly admitted because the proffered testimony provided clear and convincing evidence that the witnesses had ample opportunity to observe the defendant at the scene independent of the line-up, and defense counsel's acquiescence to the proffer procedure was appropriate. The court also held that testimony regarding a prior similar rape was admissible to show identity through modus operandi, and that jury instruction on penalty was directory rather than mandatory.
[1] An in-court identification may be admissible despite an impermissibly suggestive lineup if the state demonstrates by clear and convincing evidence that the identification…
[2] Defense counsel's acquiescence in a procedure for proffering witness testimony regarding independent identification can waive the right to have witnesses testify in perso…
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“Appellant now argues that the state failed to show by clear and convincing evidence that the in-court identification was grounded upon an independent basis.”
Establishes the legal standard Sweet had to overcome on appeal regarding the consequences of the suggestive line-up.
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Join FLexlaw to unlock all legal intelligenceFour eyewitnesses to a rape were subjected to an impermissibly suggestive line-up. At a pretrial hearing, the judge found the line-up illegal but proc…
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BERANEK, JOHN R., Associate Judge.
This is an appeal from a conviction of rape. At the outset, the court wishes to express its appreciation to Professor Yet-ter for having accepted the court’s request to represent appellant without compensation in this case. Despite his very competent services, we now affirm.
At a hearing held just prior to trial, the lower court found a line-up identification to be impermissibly suggestive. Appellant now argues that the state failed to show by clear and convincing evidence that the in-court identification was grounded upon an independent basis. See United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.
At the pretrial hearing on the motion to suppress evidence concerning the line-up, the judge correctly perceived that if he held the line-up to be illegal, he would still have to pass upon the question of whether the witnesses were entitled to make an independent in-court identification. The four eyewitnesses, some of whom had previously been deposed, were available and the state offered to have them testify concerning their ability to make an independent identification.
However, the court chose to proceed by permitting the assistant state attorney to make a proffer of what these witnesses would say with respect to their prior opportunity to observe the appellant independent of the line-up. Appellant’s counsel acquiesced in this procedure and agreed to the accuracy of the state’s proffer. While the judge did not have the benefit of Cribbs v. State, Fla.App.2d, 1974, 297 So. 2d 335, at the time of the hearing, his remarks indicate that he believed that the proffered testimony represented, at the very least, clear and convincing evidence that the in-court identification would not be tainted by the illegal line-up. The ultimate in-court identification made by the witnesses' at the trial supported this conclusion. While it would have been more prudent for the witnesses to testify in person on this subject at the hearing on the motion to suppress, in view of defense counsel’s acquiescence in the procedure followed, and since it appears that the witnesses did have ample opportunity to observe the appellant at the scene, we hold that the evidence concerning the in-court identification was properly admitted. Appellant further asserts that the testimony of two witnesses concerning his involvement with a rape which took place several days before the one with which he is charged, violated the precept of Williams v. State, Fla.1959, 110 So. 2d 654.
We find that the evidence concerning the' prior rape showed a sufficient similarity in modus operandi as to be relevant for the purpose of tending to prove the identity of appellant as the perpetrator of the rape in the case, sub judice.
Appellant also asserts that the trial court erred in failing to instruct the jury on the penalty for the offense charged. This point is controlled by Johnson v. State, Fla.1974, 308 So. 2d 38. Therein, such matters were held to be the subject of a directory, rather than mandatory, provision of Rule 3.390(a), RCrP. The other points on appeal are without merit and need not be discussed.
Affirmed.
BOARDMAN, A. C. J., and GRIMES, J., concur.
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State v. Terry, 336 So. 2d 65 (Fla. 1976)…a.App. 4th 1975); Ballard v. State, 307 So. 2d 826 (Fla.App. 1st 1975); Cooper v. Wainwright, 308 So. 2d 182 (Fla.App. 4th 1975); Gomez v. State, 309 So. 2d 56 (Fla.App. 2d 1975); Pullman v. State, 311 So. 2d 753 (Fla.App. 3rd 1975); Sweet v. State, 313 So. 2d 130 (Fla.App. 2nd 1975); Beamon v. State, 314 So. 2d 604 (Fla.App. 3rd 1975); Wheat v. State, 315 So. 2d 203 (Fla.App. 1st 1975); Roper v. State, 315 So. 2d 206 (Fla.App. 1st 1975); Howard v. State, 316 So. 2d 654 (Fla. App. 3rd 1975); Kelsey v. State,…
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Hodges v. State, 403 So. 2d 1375 (Fla. 5th DCA 1981)…, aspects of the method that a particular individual uses to accomplish a particular act. See Dean v. State, 277 So. 2d 13 (Fla.1973); Williams v. State, 110 So. 2d 654 (Fla.1959); Talley v. State, 160 Fla. 593, 36 So. 2d 201 (1948); Sweet v. State, 313 So. 2d 130 (Fla.2d DCA 1975); Fivecoat v. State, 244 So. 2d 188 (Fla.2d DCA 1971); Hines v. State, 243 So. 2d 434 (Fla. 2d DCA 1971); Mims v. State, 241 So. 2d 715 (Fla. 1st DCA 1970); Blackburn v. State, 208 So. 2d 625 (Fla.3d DCA 1968); Coney v. State, 193 S…
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Davis v. State, 376 So. 2d 1198 (Fla. 2d DCA 1979)…petrators themselves or their modus operandi before evidence of a collateral crime will be admissible on the issue of identity. Marion v. State, 287 So. 2d 419 (Fla. 4th DCA 1974); Beasley v. State, 305 So. 2d 285 (Fla. 3d DCA 1974); Sweet v. State, 313 So. 2d 130 (Fla. 2d DCA 1975). While we agree with the learned trial judge that the facts of this case present a close question, we conclude that there were not enough similarities between the two crimes to justify admission of the collateral crime. Both crim…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- Blue v. Beahrs, 297 So. 2d 335 (Fla. 1st DCA 1974)
- Cribbs v. State, 297 So. 2d 335 (Fla. 2d DCA 1974)