final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; James W. McCann, Judge; L.T. Case No.
Haughwout, Public Defender, and Jeffrey Anderson, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuna, Assistant Attorney General, West Palm Beach, for
Vincent Clarence Newton, Jr., appeals his conviction for high
speed or wanton fleeing from a law enforcement officer with
lights and sirens activated. He contends it was error for the
trial court to admit his booking photograph as evidence. We
disagree, and affirm the conviction.
trial, a deputy testified that, while on routine patrol, he
heard a loud motorcycle nearby. He observed what he described
as a dirt bike pass vehicles in a no-passing area. The deputy
noted that the rider was also speeding. He began pursuit, but
the rider refused to stop, even after the deputy activated
his lights and siren. The pursuit was called off, but the
deputy continued to observe the dirt bike from a distance
when he saw the rider brake and fly over the handle bars into
a canal while trying to navigate a sharp turn. The deputy
confirmed that the rider and dirt bike he found on the canal
bank were the same that had fled from him just moments before
because he never lost sight of the rider. The rider was
testimony, the deputy referenced his arrest report and stated
that the dirt bike's rider identified himself as Vincent
Newton via his driver's license, and was booked using
that name. The State asked the deputy if he could identify
the rider of the dirt bike in the courtroom, and he replied,
"Uh, I'm going to assume it's the gentleman
right there, but it has been since December. I can't be
positive it's him, but I'm pretty sure it's
him." The deputy believed that the rider's hair was
longer, and said, "but other than that, I'd say,
yes, it's him." The State then asked, "Okay,
uh, and so you're under oath. Can you positively identify
him as the rider of that bike?" The deputy responded,
"I would say, yes."
the defense raised the issue of appellant's
identification after another witness was unable to positively
identify appellant as the rider, the State sought to recall
the deputy to introduce appellant's booking information
into evidence. The State intended to use the information to
show the name appellant was booked under, the date and time
he was booked, and to refresh the deputy's recollection.
deputy was recalled as a witness, and the State presented the
booking information to the deputy. The booking information
contained appellant's booking photograph. The deputy
agreed that the information refreshed his memory as to who
was arrested on the day of the alleged crime. He testified
that the rider was arrested for fleeing on the dirt bike,
which was the same person that the deputy attempted to
identify during his earlier testimony. The booking
information and photograph were published to the jury.
appellant was found guilty and sentenced to nine months in
jail with two years of probation. This appeal followed.
a trial court's ruling on the admissibility of evidence
will be upheld absent an abuse of discretion."
Williams v. State, 967 So.2d 735, 747-48 (Fla.
2007). "The Evidence Code provides that '[a]ll
relevant evidence is admissible, except as provided by
law.'" Id. at 753 (quoting § 90.402,
Fla. Stat. (2006)). In any criminal prosecution, the State
must establish the identity of the accused as perpetrator of
the charged offense beyond a reasonable doubt. See
Akridge v. State, 970 So.2d 917, 918 (Fla. 2d DCA 2007);
Ponsell v. State, 393 So.2d 635, 636 (Fla. 4th DCA
court has decided an issue similar to the one at hand.
See Roberts v. State, 778 So.2d 512 (Fla. 4th DCA
2001). In Roberts, the prosecution attempted
"to show a [booking photograph] of defendant to an
eyewitness who was unable to identify defendant in
court." Id. at 513. The trial court allowed the
prosecution to use the photograph to refresh the
witness's recollection. Id. "The State
wanted to show that [the witness] had identified defendant
from the [booking photograph] at the time of the events in
the case." Id. However, the use of the
photograph to refresh the witness's recollection was
deemed "simply too suggestive." Id.;
see also Way v. State, 502 So.2d 1321, 1323 (Fla.
1st DCA 1987) ("Certainly, use of a single photograph is
one of the most suggestive methods of identification possible
and is impermissibly suggestive under most
circumstances."). This court reversed and remanded for a
new trial. Roberts, 778 So.2d at 513.
there is a fundamental difference between Roberts
and this case. In Roberts, a non-law-enforcement
witness identified the defendant from a single booking
photograph. Id. Here, because the defense raised
questions about the deputy's ability to identify
appellant as the person he arrested and transported to jail,
the State used the booking information, including the booking
photograph, to have the deputy confirm that it was appellant
that he arrested and transported to the station. Unlike ...