final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Charles
K. Johnson, Judge. Lower Tribunal No. 14-13971
J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellant.
Moody, Attorney General, and Brian H. Zack, Assistant
Attorney General, for appellee.
FERNANDEZ, LOGUE, and MILLER, JJ.
Lazaro Alfonso, seeks review of the trial court's order
denying his motion to suppress the identification made by the
sole witness who observed him breaking into her home. We
witness, an eleven year-old girl, was home alone. Upon
hearing a knock on the front door, she looked through the
peephole and saw a man wearing a baseball cap. She
immediately telephoned her father, who told her to not open
the door. She checked the peephole again, but the man was
one hour later, the witness heard glass shattering in the
living room. She went to the living room and from about
fifteen feet away, saw a man breaking through a window with a
"tool." She moved in closer and was able to observe
from a distance of about three feet. She recognized him as
the same man who was previously at the front door, though he
was no longer wearing a cap. The venetian blinds covering the
window were pulled down, but the slats were open. The witness
quickly called her father again, locked herself in the
bathroom, and called the police. Within minutes, the police
arrived and found the defendant in the backyard. He was
carrying a backpack with personal items and also had a
police conducted a show-up shortly thereafter with the
defendant on the street. The witness was able to view the
defendant from her kitchen window. The period of time between
the witness's observation of the man breaking the window
and the show-up was approximately twenty minutes. The witness
immediately identified him as the man who was previously at
the front door. The defendant was ultimately charged with
burglary of an unoccupied dwelling, criminal mischief causing
damage of two hundred dollars or less, and possession of
burglary tools. The defendant made a post-Miranda
confession whereby he admitted to having burglarized the
house in order to get money for alcohol and drugs.
to trial, the defendant moved to suppress the witness's
identification of him. The witness testified at the motion to
suppress hearing. The motion was denied. At trial, over
defense objection, the State introduced the witness's
out-of-court show-up identification and had the witness make
an in-court identification of the defendant. The defendant
was convicted of the lesser-included offense of trespass.
appellant now argues that the trial court abused its
discretion by not suppressing the identification by the
witness because it was based upon the impermissibly
suggestive show-up. Because there was no error, we affirm.