Fearon v. State
2009 WL 763485, 10 So.3d 146, 2009 Fla. App. LEXIS 2486 (2009)
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Rule of Law:
A photo lineup procedure is not rendered unduly suggestive merely because the suspect's photograph is the only one common to both a first and a second lineup. Additionally, a defendant cannot be adjudicated guilty of both attempted first-degree premeditated murder and attempted felony murder for the same criminal act, as this violates the principles of double jeopardy.
Facts:
- The defendant and two others were in a vehicle that pulled alongside another vehicle occupied by four individuals.
- Someone from the perpetrators' vehicle fired a weapon into the other car.
- The driver of the targeted vehicle was shot in the eye and died, and another passenger was shot in the foot.
- Wallace, a passenger in the victim's car, saw three individuals run from the perpetrators' vehicle after it came to a stop.
- Wallace later identified the defendant as the person he saw in the back seat of the perpetrators' car.
- Police showed Wallace an initial photo lineup, but he was unable to positively identify the defendant.
- Six days later, police conducted a second photo lineup in which the defendant's photo was the only one that had also appeared in the first lineup, though its position and format were different.
- During the second lineup, Wallace identified the defendant within a minute, stating he recognized his facial "smirk."
Procedural Posture:
- The defendant was charged in a state trial court with first-degree murder, attempted first-degree murder, and attempted felony murder.
- The defendant filed a pre-trial motion to suppress an eyewitness identification, arguing the photo lineup procedure was unduly suggestive.
- The trial court conducted a hearing and denied the defendant's motion to suppress.
- The case proceeded to a jury trial, where the jury found the defendant guilty of one count of first-degree murder, three counts of attempted first-degree murder, and three counts of attempted felony murder.
- The trial court adjudicated the defendant guilty on all counts and sentenced him to concurrent life sentences, but withheld sentencing on the attempted felony murder convictions.
- The defendant appealed his convictions to the Florida Fourth District Court of Appeal.
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Issue:
Is a second photo lineup procedure unduly suggestive when the defendant's photograph is the only one common to both the first and second lineups?
Opinions:
Majority - May, J.
No, a photo lineup is not rendered unduly suggestive merely because the suspect's picture is the only one common to both lineups. The court applies a two-part test to determine if an out-of-court identification should be suppressed: 1) police used an unnecessarily suggestive procedure, and 2) the procedure created a substantial likelihood of irreparable misidentification. Here, the defendant only challenges the first prong. The court relies on the precedent set in Rimmer v. State, where the Florida Supreme Court found that a procedure was not unduly suggestive even though the defendant was the only person to appear in both a photo lineup and a subsequent live lineup. The court reasoned that the facts in this case are even less suggestive than those in Rimmer. Furthermore, the position and format of the defendant's photo were different in the second lineup, mitigating any potential suggestiveness. The court separately held that the defendant's convictions for attempted felony murder must be vacated on double jeopardy grounds because he was also convicted of attempted first-degree premeditated murder for the same acts.
Analysis:
This decision reinforces the high threshold for a defendant to prove that an eyewitness identification procedure was unconstitutionally suggestive. It clarifies that the mere repetition of a suspect's photograph in a subsequent lineup is not, by itself, sufficient to invalidate the identification. The ruling emphasizes a comparative, fact-intensive analysis, relying heavily on precedent to determine what crosses the line into undue suggestiveness. For future cases, this means defense counsel must demonstrate additional suggestive factors beyond simple repetition to successfully suppress an identification.
