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Alfonso v. State

Florida Court of Appeals, Third District

June 26, 2019

Lazaro Alfonso, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Charles K. Johnson, Judge. Lower Tribunal No. 14-13971

          Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

          Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney General, for appellee.

          Before FERNANDEZ, LOGUE, and MILLER, JJ.

          LOGUE, J.

         Defendant, 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 affirm.

         FACTS

         The 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 gone.

         Approximately 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 screwdriver.

          The police conducted a show-up shortly thereafter with the defendant on the street.[1] 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.

         Prior 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.

         The 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.

         STANDARD ...


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