ROBERT JERRY GLAS, A/K/A KENNETH ROBERT FUSCO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE; RAYMOND C. DIAZ, APPELLANT, V. THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1976-03-17
Nos. 75-829, 75-857
Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
329 So. 2d 341 Florida District Court of Appeal, Third District (1976) Caution
Cited by 20 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the pretrial and in-court identifications were reliable and not unduly suggestive, and that the trial court's rulings were supported by the record.


Headnotes

[1] A pretrial identification procedure is evaluated under the totality of the circumstances to determine if it was reliable, even if suggestive.

[2] Factors to consider in evaluating the reliability of an identification include the witness's opportunity to view the perpetrator, degree of attention, accuracy of prior d…

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

Facts & Procedural History

Defendants were charged with robbery after witnesses identified them from a show-up procedure following their arrest. They moved to suppress the ident…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Co-defendants, Robert Jerry Glas a/k/a Kenneth Robert Fusco and Raymond C. Diaz, were charged in the same information with robbery and carrying a concealed firearm. Both defendants pled nolo contendere to robbery and the State abandoned the charge of carrying a concealed firearm against both defendants. The trial court entered judgments of conviction and sentenced Glas to 25 years in. the state penitentiary, 20 years to be stayed and withheld and at the completion of 5 years, probation for 20 years and sentenced Diaz to 15 years in the state penitentiary, 12 years to be stayed and withheld and at the completion of 3 years, probation for 12 years.

Since the charges against Glas and Diaz arose from the same incident, the separate appeals from the judgment of conviction and sentence of Glas and of Diaz will be treated together in his opinion.

The facts are that on November 3, 1974, two men 'entered a Cumberland Farm store and at gunpoint, forced the cashier to hand over the money. In addition to the cashier, there were three other witnesses, two in the store, a customer and the cashier’s 14-year-old son, and a man who, while walking his dog across the street, observed the license number, the make and color of the car in which the robbers escaped, and the driver. With the license number and description of the getaway car and driver, the police were able to locate the defendants shortly after the robbery and in less than 2 hours, the witnesses were contacted and asked to return to the store for a show-up to identify the suspects. The defendants were viewed behind a one-way mirror, and both Glas and Diaz were identified by the three witnesses who were in the store. A third suspect, who was later dismissed as a defendant in the case, was identified by the man who had been across the street as the driver of the getaway car. Defendants, Glas and Diaz, both made motions to suppress the show-up and subsequent line-up and in-court identifications. The court granted the motions as to some of the witnesses, but denied Glas’ motion as to identification by the customer and Diaz’s motion as to identification by the customer and the cashier, since each one identified the respective defendant(s) both in and out of court. When the court found identification by these witnesses to be untainted and admissible, both Glas and Diaz pled nolo contendré to the charge of robbery, and they were both convicted and sentenced on that charge. (The State abandoned the charge of carrying a concealed firearm.)

The points raised on appeal are (1) that the pretrial identification was unnecessarily suggestive and conducive to irreparable mistaken identification so as to constitute a denial of due process, and (2) that the State failed to show that the in-court identifications were made independently and without the taint of the improper pretrial identifications.

In discussing the first point, we look to the test for identifications stemming from pretrial confrontations as set out in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411:

“. . . Whether, under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. (T)he factors to be considered in evaluating the likelihood of misidentification include the opportunty of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontations.”

Applying these factors to the evidence adduced in this case, we find that the trial court’s conclusions are amply supported by the record. In our opinion, the pretrial identifications were reliable and there was no substantial likelihood of misiden-tificatiofi. See Neil v. Biggers, supra.

As to the defendants’ second point, that the State failed to establish by clear and convincing evidence that the in-court identifications were made independently of the pretrial identifications, the record does not support this view of the evidence. Rather, the record shows that independent of the pretrial identifications, the in-court identifications were based on the observations of the witnesses during and at the scene of the crime. Therefore, no reversible error has been shown on this point. Accord Daniels v. State, Fla.App.1972, 262 So. 2d 725; Hanks v. State, Fla.App.1974, 305 So. 2d 817; Sweet v. State, Fla.App.1975, 313 So. 2d 130.

The trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness. In testing the accuracy of the trial court’s conclusions, we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Rodriguez v. State, Fla.App.1969, 189 So. 2d 656, 660, concurring opinion by Judge Barkdull; State v. Bell, Fla.App.1971, 249 So. 2d 748, 750. In so doing, we have concluded that the trial court was correct in denying the motions to suppress the pretrial and in-court identifications by the witnesses.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • McNAMARA v. State, 357 So. 2d 410 (Fla. 1978)
    …court, is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling. Cf. Glas v. State, 329 So. 2d 341 (Fla. 3rd DCA 1976), Rodriguez v. State, 189 So. 2d 656 (Fla. 3rd DCA 1966), cert. den. Suarez v. Florida, 389 U.S. 848, 88 S.Ct. 66, 19 L.Ed.2d 116. We find that under the circumstances present in the instant cause, the officers had probable cause…
  • State v. Cromartie, 419 So. 2d 757 (Fla. 1st DCA 1982)
    …iminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 3821, 34 L.Ed.2d 401 (1972). See also, Glas v. State, 329 So. 2d 341 (Fla. 3d DCA 1976). Here, there was no “unnecessarily suggestive” procedure employed. The show-up identification procedure is, by its nature, suggestive in that, unlike a line-up, a witness is presented with only one possible suspect for identifica…
  • State v. Guerra, 455 So. 2d 1046 (Fla. 3d DCA 1984)
    …he court’s decisions.” The trial court reviewed all the circumstances before deciding that the identification should be suppressed. The fact that upon review of different circumstances, a trial court reached a different conclusions in Glas v. State, 329 So. 2d 341 (Fla.3d DCA 1976), cited by the state, does not create lack of uniformity under the rule. Next, I disagree with the majority on the merits for the reasons expressed by Judge Hendry in the original panel opinion. The United States Supreme Court has…

Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw