IN THE SUPREME COURT OF FLORIDA CASE NO. SC FRANK HERNANDEZ. Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC FRANK HERNANDEZ Petitioner, -vs- THE STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF RESPONDENT ON JURISDICTION CHARLES J. CRIST JR., Attorney General Tallahassee, Florida MICHAEL J. NEIMAND Assistant Attorney General ROBERTA G. MANDEL Assistant Attorney General Florida Bar Number Office of the Attorney General Department of Legal Affairs 444 Brickell Ave., Suite 950 Miami, Florida (305) ;fax

2 TABLE OF CONTENTS CERTIFICATE OF TYPE SIZE AND STYLE ii TABLE OF CITATIONS... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT THERE IS NO BASIS UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.030(a)(2)(A)(iv), OR FLA. CONST. ARTICLE V, SECTION 3(b)(3)FOR THIS COURT TO ACCEPT JURISDIC- TION IN THIS CAUSE. CONCLUSION... 9 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE APPENDIX i

3 CERTIFICATE OF TYPE SIZE AND STYLE Undersigned counsel certifies that this brief was prepared using 12-point Courier New, a font that is not proportionately spaced. ii

4 TABLE OF CITATIONS CASES PAGE Grant v. State, 390 So. 2d 341 (Fla. 341 (Fla. 1980) Green v. State, 642 So. 2d 391 (Fla. 1994) Mancini v. State, 312 So. 2d 732 So. 2d (Fla. 1975) State v. Lyons, 293 So. 2d 391 (Fla. 2d DCA 1974) OTHER AUTHORITIES: Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) Florida Rule of Criminal Procedure 3.190(h)(3) ,7 Fla. Const. Art. V, Section 3(b)(3) ,5 iii

5 INTRODUCTION The Petitioner, FRANK HERNANDEZ, was the Defendant in the trial court and the Appellee in the Third District Court of Appeal. The State of Florida was the prosecution in the trial court and the Appellant in the Third District Court of Appeal. In this brief, the parties will be referred to as they stood in the trial court. The symbol A. will be used to refer to the appendix attached to this brief. A copy of the Third District s opinion is included in the appendix, and will be referred to by using the symbol A followed by the applicable page number. The defendant, FRANK HERNANDEZ seeks this Court s discretionary review of the Third District s decision, entered on November 27, (A. 1-6). STATEMENT OF THE CASE AND FACTS The State of Florida appealed, in the Third District Court of Appeal, from a trial court order granting defendant s Motion to Suppress Lineup, Showup, Photograph, Other Pre-Trial Confrontation and Courtroom Identification.. In an opinion filed on November 27, 2002, the Third District Court of Appeal reversed the trial court s order and remanded the cause to the trial court with instructions to deny the defendant s Motion to Suppress. (A. 1-6). The Third District s opinion correctly set forth the facts 1

6 of the case, as follows: On February 9, 1999, Manuela Valdez was looking out he window of her second floor apartment when she saw a man jump a fence and force open the patio door of her neighbor s first-floor residence. She left the window, caused the police to be notified, and returned to the window in time to see the man exist her neighbor s residence and jump a fence closer to the street. According to Ms. Valdez, the perpetrator was Caucasian, of medium height and build, not obese, and wearing a white T-shirt with short sleeves. At the hearing on the Motion to Suppress, she testified that she did not see the perpetrator s face but that she did see his profile. The police arrived about three minutes later. One of the responding officers testified that he chased after the Defendant, and two of the responding officers testified that they yelled police and told Defendant to stop, but Defendant did not stop. After apprehending the Defendant, the police drove the Defendant back to the scene of the break-in to have Ms. Valdez identify him. The Defendant was taken out of the vehicle in handcuffs, and Ms. Valdez identified him from 100 feet away. The Defendant was charged by Information with Burglary of an unoccupied dwelling, petit theft, criminal mischief, possession of burglary tools, and resisting an officer without violence. On December 21, 2000, the Defendant filed a Motion to Suppress Lineup, Showup, Photograph, Other Pre-Trial Confrontation, and Courtroom Identification. 1 At the hearing on the Motion, the State argued that the motion was legally insufficient because it failed to state the particular evidence to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion was based, as required by Florida Rule of Criminal Procedure 3.190(h)(2). We agree and conclude that the trial court should have denied the motion pursuant to Florida Rule of Criminal Procedure 3.190(h)(3). 1 The Third District s opinion, quoted the text of the defendant s motion. See Appendix page 3. 2

7 Florida Rule of Criminal Procedure 3.190(h)(2) states that [e]very motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based. Fla. R. Crim. P (h)(2); see also State v. Gibson, 670 So. 2d 1006, 1008 n.2 (Fla. 2d DCA 1996); Chapman v. State, 446 So. 2d 1186, 1187 (Fla. 4 th DCA 1984); Herring v. State, 394 So. 433, 433 (Fla. 3d DCA 1980). Furthermore, Florida Rule of Criminal Procedure 3.190(h)(3) requires the trial court, before hearing evidence, to determine if the motion to suppress is legally sufficient, and to deny the motion if the motion is not legally sufficient. See Fla. R. Crim. P (h)(3). In the instant case, the foregoing Motion to Suppress is legally insufficient because it is devoid of any statement regarding the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of facts on which the motion is based. As correctly stated by the prosecutor to the trial court, it is more or less a boilerplate motion.... As an entirely separate matter, we also hold that the out-of-court identification at issue in the instant case is admissible. The two-part test to determine whether an out-of-court identification may be admitted is (1) whether the police used an unnecessarily suggestive procedure to obtain an out-of-court identification, and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See Green v. State, 641 So. 2d 391, 394 (Fla. 1994)(citing Grant v. State, 390 So. 2d 341, 341 (Fla. 1980), cert. denied, 451 U.S. 913, 101 S. Ct. 1987, 68 L.Ed. 2d 303 (1981). In the instant case, although the procedure utilized by the police involved taking the Defendant back to the scene of the break-in to be identified by Ms. Valdez, it was nevertheless a show-up. According to the Florida Supreme Court, a show-up is inherently suggestive because a witness is presented with only one suspect for identification, but the procedure is not invalid if it did not give rise to a substantial likelihood of irreparable misidentification under the totality of the circumstances. See Blanco v. State, 452 So. 2d 520, 524 (Fla. 1984), cert. denied, 469 U.S. 3

8 (A. 1-6). 1181, 105 S. Ct. 940, 83 L.Ed. 2d 953 (1985). The factors to be considered in evaluating the likelihood of misidentification include the opportunity 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 confrontation. Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972). Here, the Record indicates that Ms. Valdez saw the Defendant enter here next door neighbor s home, and that the only times when she lost sight of the Defendant were when the Defendant was in the neighboring house and when the Defendant jumped the fence in an attempt to flee the area. The Record further demonstrates that Ms. Valdez identified the Defendant through the show-up procedure within minutes after the Defendant fled the scene. Based on the foregoing factors, and the circumstances of the identification, we conclude that there was not a substantial likelihood of irreparable misidentification and, thus, the identification is admissible. Accordingly, we reverse and remand to the trial court with instructions to deny the Motion to Suppress. Reversed and remanded, with instructions. SUMMARY OF THE ARGUMENT The defendant has petitioned this Court to grant discretionary review in his case. The defendant, however, doesn t even ATTEMPT to argue, let alone establish, that the Third District s opinion expressly and directly, or by direct implication, conflicts with a decision of this Court or a decision from another district court of appeal on the same question of law. The pertinent language of Fla. Const. Art. V, Section 3(b)(3), 4

9 leaves no room for doubt, this Court may ONLY review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. As such, the defendant doesn t provide any basis for this Court to exercise discretionary jurisdiction in this cause, pursuant to Florida Rule of Appellate Procedure (a)(2)(a)(iv) and Fla. Const. Art. V. Section 3(b)(3). Discretionary jurisdiction must, therefore, be DENIED. ARGUMENT THERE IS NO BASIS UNDER FLORIDA RULE OF APPELLATE PROCE- DURE 9.030(a)(2)(A)(iv), OR FLA. CONST. ARTICLE V, SECTION 3(b)(3) FOR THIS COURT TO ACCEPT JURISDICTION IN THIS CAUSE. The defendant s notice to invoke discretionary jurisdiction indicates that the Third District s decision expressly and directly conflicts with decisions of this Court and other decisions of other district courts of appeal.. The defendant further maintains, in his notice, that the Third District s decision expressly construed the due process clause of the state and federal constitutions.. The defendant s jurisdictional brief, however, has failed to establish either basis for this Court to exercise its discretionary jurisdiction in this cause. The defendant s entire argument focuses upon the fact that 5

10 the defendant disagrees with the Third District s conclusion that the facts in the case supported the denial of the defendant s motion to suppress. The defendant doesn t even attempt, to establish that the Third District s decision is in conflict with cases from this Court or other district courts of appeal on the same question of law. The defendant, merely argues that the District Court erred in according no deference to the trial court s factual determinations where there was allegedly substantial evidence to support the trial court s findings. The thrust of the defendant s argument is that the Third District misapplied Florida Rule of Criminal Procedure 3.190(h)(2), where the Third District failed to find substantial evidence to warrant granting the defendant s motion to suppress. In State v. Lyons, 293 So. 2d 391 (Fla. 2d DCA 1974), the Court held that a trial court s misapplication of settled rule of criminal procedure DOES NOT amount to a construction of the Constitution so as to give the Supreme Court jurisdiction to review the ruling. Furthermore, in Mancini v. State, 312 So. 2d 732 (Fla. 1975), this Court noted that the District Court s opinion, in that case, was based on the holding that there was substantial competent evidence upon which the trial court s judgment could be sustained. This Court held that the defendant failed to 6

11 establish a basis for this Court to exercise its jurisdiction. This Court specifically held that this Court s jurisdiction can NOT be invoked merely because it might disagree with a decision of the District Court of Appeal, nor because it might have made a factual determination if it had been the trier of fact. In the instant case, as well, the District Court s opinion was based on the holding that the defendant s motion to suppress contained only bare allegations which were unsupported by any proof. The Third District, therefore, found that the defendant s motion to suppress was improperly granted by the trial court. Additionally, the Third District, properly found that there was sufficient evidence that the out-of-court identification was not suggestive, and didn t give rise to a substantial likelihood of irreparable misidentification. The Third District, therefore, reversed the trial court s order which suppressed the out-ofcourt identification. The defendant has failed to establish a basis for this Court to exercise its discretionary jurisdiction. The Third District s decision is NOT in conflict with any cases from this Court or any other District Court of Appeal on the same question of law. The Third District correctly concluded that the trial court should have denied the defendant s motion to suppress since Florida Rule of Criminal Procedure 3.190(h)(2) specifi- 7

12 cally states that [e]very motion to suppress evidence shall state clearly the particular evidence sought to be suppressed, the reasons for suppression, and a general statement of the facts on which the motion is based. (A. 4). The Third District also properly determined that this Court has held that a suggestive confrontation procedure, by itself is NOT enough to require exclusion of the out-of-court identification. The Third District correctly stated (A. 5), that the test to apply for suppression of an out-of-court identification, as set forth by this Court, is as follows: (1) Did the police use an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) If so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification. See Green v. State, 641 So. 2d 391, 394 (Fla. 1994)(citing Grant v. State, 390 So. 2d 341, 343 (Fla. 1980), cert. den., 451 U.S. 913, 101 S. Ct. 1987, 68 L.Ed. 2d 303 (1981)). The Third District, thereafter, correctly applied the above test and determined that there was not a substantial likelihood of irreparable misidentification, and thus, the identification 8

13 should have been deemed admissible. Accordingly, the Third District pursuant to the well-established case law, reversed and remanded the cause to the trial court with instructions to deny the defendant s Motion to Suppress. CONCLUSION Based upon the authorities and arguments cited herein, this Court should decline to exercise its discretionary jurisdiction. Respectfully Submitted, CHARLES J. CRIST JR., Attorney General Tallahassee, Florida 9 MICHAEL J. NEIMAND Assistant Attorney General

14 CERTIFICATE OF SERVICE ROBERTA G. MANDEL Assistant Attorney General Florida Bar Number Office of the Attorney General Department of Legal Affairs 444 Brickell Ave., Suite 950 Miami, Florida (305) ;fax I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by mail to ROY HEIMLICH, ASSISTANT PUBLIC DE- FENDER, Public Defender s Office, 1320 N.W. 14 th Street, Miami, Florida 33125, on this day of February, ROBERTA G. MANDEL Assistant Attorney General CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this brief was prepared using 12-point Courier New, a font that is not proportionately spaced. ROBERTA G. MANDEL Assistant Attorney General 10

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16 APPENDIX