Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 20, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-0293 Lower Tribunal No. 16-20438 ________________ Darrell Evan McWilliams, Appellant, vs. The State of Florida, Appellee. An appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge. Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee. Before LOGUE, SCALES, and MILLER, JJ. MILLER, J. Appellant, Darrell McWilliams, challenges his convictions and sentences for three counts of sexual battery, in violation of section 794.011(3), Florida Statutes, one count of aggravated battery, in violation of section 784.045(1)(a)(1), Florida Statutes, and one count of aggravated assault, in violation of 784.021(1)(a), Florida Statutes. On appeal, McWilliams urges reversal, contending the lower tribunal deprived him of his constitutionally enshrined right to due process of law. See Amend. XIV, U.S. Const.; Art. I, § 9, Fla. Const. Specifically, he asserts the court erred in admitting evidence of extrajudicial and in-court identifications, as both were the unreliable product of unduly suggestive police identification procedures. For the reasons set forth below, we find no merit in this claim and affirm. FACTS AND PROCEDURAL HISTORY In the late evening hours of October 2, 2016, City of Miami Beach Officer David Cajuso was dispatched to a reported sexual assault at a luxury resort within his jurisdiction. Upon arrival at the establishment, Cajuso observed several civilians attempting to assist A.L., whom they identified as the victim of the offense. A.L. was unclothed from the waist down and shrouded in a towel. She exhibited a myriad of fresh contusions and her face was soiled with blood and sand. A.L. was eventually transported to the trauma unit of a local hospital, where she received treatment for her injuries. 2 Later that night, Detective Luis Estopinan interviewed A.L. at the medical center. A.L. appeared lucid and recounted that, while waiting for her shift to begin at a nearby nightclub, she walked along the beach area behind the hotel. As she filmed an approaching storm with her cell phone camera, she observed a man perched upon a nearby stack of chairs. She then engaged her cell phone flashlight. Moments later, the same man appeared before A.L., simultaneously seizing her by the shirt and forcing her to the ground. She emitted a scream, which was promptly met with a closed fist to the head. A.L. attempted to flee, but was overpowered by her assailant. She was placed in a chokehold and her cheek was lacerated with a sharp object, which was later revealed to be a box cutter. A.L. was then subjected to forced acts of digital penetration and oral and vaginal contact. In the midst of the sexual assault, A.L. kicked her assailant in the groin and fled to the safety of the adjacent resort. A.L. stated she observed her attacker clearly throughout the incident, as flashes of lightning and the telephone flashlight illuminated his face. She ultimately provided detectives with the following physical description: “a black male with short afro, approximately [twenty] to [twenty-five] years of age, wearing a green shirt with a log and shorts.” She was able to approximate the height of the suspect and described him as bearing a striking resemblance to a renowned actor. 3 A crime scene technician processed the site of the assault, and, the following day, detectives arranged for A.L. to meet with a forensic artist. A.L. furnished the artist with sufficient identifying characteristics to yield a detailed composite sketch of the perpetrator. Both the sketch and physical description were distributed to various local law enforcement agencies. Late in the evening, several days after the crime, a City of Miami Beach patrol officer encountered McWilliams on Miami Beach. McWilliams was mere blocks from the crime scene and appeared to take furtive action to avoid any police contact. After noticing that he bore a marked similarity to the subject depicted in the composite sketch, the officer detained McWilliams, awaiting further instruction from detectives. Detective Estopinan contacted A.L. and requested she partake in a showup identification procedure. A.L. was agreeable and traveled to a designated location with both her mother and sister. McWilliams was stationed under a streetlight in a cul-de-sac abutting the beach, while a Caucasian police officer clad in civilian clothing stood beside him. McWilliams was not handcuffed or otherwise obviously restrained. Estopinan informed A.L. that the individual she was about to see “may or may not be the person involved in this case.” He further admonished her: “[i]t is just as important to clear innocent persons from suspicion as it is to identify guilty parties.” Estopinan then 4 drove A.L. past McWilliams in a squad car with the headlights activated. A.L. saw McWilliams, grabbed Estopinan’s arm, and exclaimed, “that’s him.” A second view was conducted and A.L. reaffirmed her identification. McWilliams was arrested and transported to the police station. There, he was observed to have apparent dried bloodstains on his shorts. He disrobed, revealing further deposits on his boxer shorts. The garments were impounded. 1 McWilliams voluntarily waived his Miranda2 rights, and, upon interrogation, confessed to the crimes alleged. McWilliams was charged by information with the crimes for which he was later convicted. Prior to trial, he sought, by way of a motion to suppress, to exclude the out-of-court identification, contending it was so unduly suggestive as to give rise to a substantial likelihood of misidentification. He further asserted any ensuing in- court identification should be invalidated by the irreparable taint of the extrajudicial procedure. The lower court denied the motion. At trial, A.L. identified McWilliams as the perpetrator of the crime and the court received evidence regarding the showup.3 A verdict of guilt was returned as to all counts charged, and McWilliams received an enhanced sentence. The instant appeal followed. 1 A later DNA analysis yielded the conclusion A.L. was the source of the blood. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3 McWilliams waived his right to trial by jury. 5 STANDARD OF REVIEW Whether an identification procedure is impermissibly suggestive, thereby denying an accused due process of law, presents a mixed question of law and fact. Sumner v. Mata, 455 U.S. 591, 597, 102 S. Ct. 1303, 1306, 71 L. Ed. 2d 480 (1982). Thus, “[w]e defer to [the] trial court’s findings of fact as long as they are supported by competent, substantial evidence, but . . . review de novo [the] . . . application of the law to the historical facts.” Ross v. State, 45 So. 3d 403, 414 (Fla. 2010) (citing Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007)). LEGAL ANALYSIS Our system of justice imposes “a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.” Perry v. New Hampshire, 565 U.S. 228, 232, 132 S. Ct. 716, 720, 181 L. Ed. 2d 694 (2012). Accordingly, “Florida courts apply a two-step test to determine the admissibility of an out-of-court identification: ‘(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.’”4 4 In this jurisprudential arena, the words “impermissibly,” “unnecessarily,” and “unduly” have been used interchangeably. See, e.g., Manson v. Brathwaite, 432 6 Wills v. State, 242 So. 3d 1195, 1197 (Fla. 2018) (citation omitted); see Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 970, 19 L. Ed. 2d 1247 (1968) (examining the claim that the “identification procedure was so unduly prejudicial as fatally to taint [the defendant’s] conviction” under the totality of surrounding circumstances) (citations omitted). Here, A.L. described the perpetrator as “a black male with short afro, approximately [twenty] to [twenty-five] years of age, wearing a green shirt with a log and shorts.” Thus, despite the presence of the plainclothes officer on the cul-de- sac, only a single suspect matching the physical description of the perpetrator was presented for consideration. Consequently, the identification procedure was “inherently suggestive.” Blanco v. State, 452 So. 2d 520, 524 (Fla. 1984) receded on other grounds by Puglisi v. State, 112 So. 3d 1196 (Fla. 2013) (“A show-up is inherently suggestive in that a witness is presented with only one suspect for identification.”). The record below remains undeveloped as to any emergent or exigent circumstances that would necessitate the use of such a procedure. See Manson v. Brathwaite, 432 U.S. 98, 109, 97 S. Ct. 2243, 2250, 53 L. Ed. 2d 140 (1977) (“[The State] at the outset acknowledges that ‘the procedure in the instant case was U.S. 98, 108, 97 S. Ct. 2243, 2250, 53 L. Ed. 2d 140 (1977); Green v. Loggins, 614 F.2d 219, 223 (9th Cir. 1980). 7 suggestive (because only one photograph was used) and unnecessary’ (because there was no emergency or exigent circumstance).”); United States v. Montgomery, 150 F.3d 983, 992 (9th Cir. 1998) (“[A] suggestive pretrial identification procedure does not violate due process when use of the procedure is ‘imperative.’”) (citing Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967) abrogated on other grounds by United States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982)). Nonetheless, this does not end our analysis. “Even when an unnecessarily suggestive procedure was used, ‘suppression of the resulting identification is not the inevitable consequence.’” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2559, 201 L. Ed. 2d 986 (2018) (citation omitted). “Instead, ‘the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a “substantial likelihood of misidentification.”’” Id. (quoting Neil v. Biggers, 409 U.S. 188, 201, 93 S. Ct. 375, 383, 34 L. Ed. 2d 401 (1972)). As the “the primary evil to be avoided is ‘a very substantial likelihood of . . . misidentification,’” Biggers, 409 U.S. at 198, 93 S. Ct. at 381 (citation omitted), “[i]t is the reliability of identification evidence that [effectively] determines its admissibility.”5 Watkins v. Sowders, 449 U.S. 341, 347, 5 “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149 (1967). “A major factor contributing to the high incidence of miscarriage of justice from mistaken 8 101 S. Ct. 654, 658, 66 L. Ed. 2d 549 (1981) (citations omitted). The factors to be considered “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] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Brathwaite, 432 U.S. at 114, 97 S. Ct. at 2253 (citing Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382). “[T]he indicia of reliability [of these factors is to be weighed] against the ‘corrupting effect of the suggestive identification procedure itself.’” United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985) (quoting Brathwaite, 432 U.S. at 114, 97 S. Ct. at 2253). Here, our application of these factors yields the conclusion that, despite the suggestive aspect, the extrajudicial identification possessed certain features of reliability, outweighing any corrupting effect. First, A.L. testified that when she initially observed her assailant, the beach was lit by intermittent flashes of lightning. McWilliams made no effort to conceal his identity, and, after A.L. activated her flashlight, the two stood face-to-face. The identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Id. Thus, given “the concern that the jury not hear eyewitness testimony . . . reliability is the linchpin in determining the admissibility of identification testimony.” Brathwaite, 432 U.S. at 112-14, 97 S. Ct. at 2252-53. “[F]or evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Id. at 116, 97 S. Ct. at 2254. 9 attack was protracted, and there was no distance separating A.L. from her attacker for the duration. Accordingly, A.L. had an ample opportunity “to view the criminal at the time of the crime.” Biggers, 409 U.S. at 199, 93 S. Ct. at 382. Second, as the victim of a sexual assault, A.L. “was not a casual or passing observer, as is so often the case with eyewitness identification.” Brathwaite, 432 U.S. at 115, 97 S. Ct. at 2253. Rather, she was “the victim of one of the most personally humiliating of all crimes.” Biggers, 409 U.S. at 200, 93 S. Ct. at 382-83. This factor, considered along with the detailed history of the attack relayed to investigators, supports the proposition that A.L. displayed a heightened degree of attention. Third, A.L. provided a detailed description of her attacker immediately following the assault. It included the assailant’s race, height, color, approximate age, and style of hair, and the fact that he resembled a known person. It also included a description of clothing. “No claim has been made that [McWilliams] did not possess the physical characteristics so described.” Brathwaite, 432 U.S. at 115, 97 S. Ct. at 2253. Indeed, the description furnished to law enforcement officers and the forensic artist was sufficiently accurate to secure the apprehension of McWilliams. Fourth, upon viewing McWilliams, A.L. conveyed a visceral reaction and stated, “that’s him,” with immutable certainty. “This positive assurance was repeated.” Id. 10 Fifth and finally, the identification took place a mere three days after the commission of the crime. Absent other factors, this time period is not sufficiently long to erode confidence in the memory of a witness. See Biggers, 409 U.S. at 201, 93 S. Ct. at 383 (seven-month interval between rape and first identification did not render the identification inadmissible); Coleman v. Quarterman, 456 F.3d 537, 543- 44 (5th Cir. 2006) (finding identification made nine days after shooting was sufficiently reliable); Kordenbrock v. Scroggy, 919 F.2d 1091, 1103 (6th Cir. 1990) (finding identification made less than a month after the crime was sufficiently reliable); United States v. Napoli, 814 F.2d 1151, 1160-61 (7th Cir. 1987) (finding that under the totality of the circumstances the two-month lapse in between the incident and the identification was not enough to “raise serious questions about reliability”) (citation omitted). “These indicators of [A.L.’s] ability to make an accurate identification are hardly outweighed by [any] corrupting effect of the challenged identification itself.” Brathwaite, 432 U.S. at 116, 97 S. Ct. at 2254. Although showups are viewed dimly, in this case, there was “little pressure on the witness to acquiesce in the suggestion” that such a procedure entails. Id. No insinuation was made that McWilliams was the culprit, precautions were taken to ensure that McWilliams did not appear to be in custody, and A.L. was admonished as to the significance of making a correct identification. 11 Hence, “[u]nder the totality of the circumstances [of this case], there was not a substantial likelihood of misidentification.” Lewis v. State, 572 So. 2d 908, 911 (Fla. 1990) (citations omitted). “Short of that point, such evidence is for the jury to weigh.” Brathwaite, 432 U.S. at 116, 97 S. Ct. at 2254. Accordingly, because the extrajudicial identification procedure passed constitutional muster, it follows that the in-court identification bore no taint. Thus, we find no error and affirm. Affirmed. 12