GRADY EUGENE JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1969-11-04
No. 68-1089
Before CHARLES CARROLL, BARK-DULL and HENDRY, JJ.
228 So. 2d 114 Florida District Court of Appeal, Third District (1969) Positive Treatment
Cited by 10 cases

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Synopsis

Jenkins and a co-defendant were convicted of armed robbery after a bench trial with joint representation by a single public defender. Jenkins appealed claiming error in joint representation, improper pretrial photo identification, and insufficient evidence, but the Florida appellate court affirmed the conviction.


Holding

The court held that without a request for separate counsel or a showing of prejudice or conflict of interest, joint representation does not constitute reversible error. The pretrial photographic identification procedure was not impermissibly suggestive under the facts presented, and the evidence was sufficient to sustain the conviction.


Key Quotes

“If a defendant is indigent and [request for separate counsel] is made it should be granted unless it can be demonstrated to the trial judge that no prejudice will result or that no conflict will arise as an incident of the joint representation. Without such a request being made, failure to appoint separate counsel will not be held to constitute error unless it is demonstrated that prejudice results from such failure.”

Establishes the legal standard for when joint representation constitutes reversible error

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Facts & Procedural History

Jenkins and his co-defendant were charged with armed robbery and tried jointly before a judge without a jury. A single public defender represented bot…

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

The appellant and a co-defendant were informed against for the crime of armed robbery. Both defendants pleaded not guilty to the charges and were tried without a jury. A single public defender was appointed to represent the appellant and his co-defendant; no demand was made for separate counsel and no objection was entered as to the joint representation by a single attorney. They were both adjudicated guilty and sentenced for the crime charged. The co-defendant has prosecuted a separate appeal. See Jennings v. State, Fla.App.1969, 228 So.2d 117, Third District Court of Appeal opinion released this date.

As his first point on appeal, Jenkins contends that the trial court erred by failing to appoint separate counsel for himself and his co-defendant. The record shows that no demand was made at trial for independent counsel. However, the appellant takes the position that the facts of the case do demonstrate that he was prejudiced by the single representation in that the public defender was reluctant to allow the appellant or his co-defendant to extensively testify as to their individual defenses for fear that one might implicate the other. There is a further contention that certain contradictions arose in the testimony given by various state’s witnesses, and such contradictions were not fully explored because of the public defender’s fear of implicating one co-defendant at the expense of the other. However, we do not read the record or the above contentions as demonstrating the prejudice necessary to require a reversal here. Under such a finding, this point on appeal has been answered in the case of Belton v. State, Fla.1968, 217 So.2d 97, wherein the Supreme Court stated as follows:

“ * * * If a defendant is indigent and [request for separate counsel] is made it should be granted unless it can be demonstrated to the trial judge that no prejudice will result or that no conflict will arise as an incident of the joint representation. Without such a request being made, failure to appoint separate counsel will not be held to constitute error unless it is demonstrated that prejudice results from such failure. Error does not occur because of joint counsel *116in the absence of a request for separate counsel or a showing of prejudice or conflict of interest.
“In the instant case there was neither a request for separate counsel nor a showing or prejudice. Consequently, reversible error is not revealed by the record.”

See also State v. Youngblood, Fla.1968, 217 So.2d 98; Jackson v. State, Fla.App.1969, 221 So.2d 222.

The appellant has raised two other points on appeal. His second point is that the method of pretrial identification was improper and prejudicial. This is in reference to the fact that one victim of the robbery was shown three photographs of potential suspects while he was recovering from injuries; after he viewed the photographs, this witness selected the two taken of the defendants as being photos of the robbers. This initial identification was made outside the presence of the defendants’ counsel. Despite Jenkins’ reliance upon Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), we are not convinced that this procedure violated the appellants’ rights. There appears to be no Florida case dispositive of the issue; however, we find the federal rule which was enunciated in the case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), to lend both logical and legal support to the State’s position in this matter. In that case, the Supreme Court of the United States stated:

“Despite the hazards of. initial identification by photography, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eye-witnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts and that convictions based on eyewitness identification at trial following a pretrial identification by photography will be set aside on the ground only if the photographic identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

It appears to us that, in view of the extensive case put forth by the state in which the evidence adduced implicating both appellants with the commission of the robbery was substantial,1 the prejudice which resulted from the witness’ identification of the photographs, if any, was harmless. The “very substantial likelihood of irrep*117arable misidentification”, Simmons v. United States, supra, could not possibly have occurred on the facts of the case at bar.

Jenkins’ third point on appeal, relating to the sufficiency of the evidence adduced to prove commission of the crime of armed robbery, is without merit. See footnote 1, supra.

Accordingly, the judgment and conviction being appealed herein is hereby affirmed.


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Citator

Cited By

  • Baxter v. State, 355 So. 2d 1234 (Fla. 2d DCA 1978)
    …it of a suggestive identification procedure does not meet threshold reliability where thp procedure gives rise to a very substantial likelihood of misidentification. Simmons v. U. S., supra; Neil v. Biggers, supra, note 1. See also Jenkins v. State, 228 So. 2d 114 (Fla. 3d DCA 1969). Due process requires that evidence posing such a high danger of misidentification be withheld from consideration by the jury. This standard is applicable to photographic identification procedures. Simmons v. United States, supra.…
  • Kruglak v. State, 300 So. 2d 315 (Fla. 3d DCA 1974)
    …and a severance should have been granted. We find this point lacks merit as there was no request for a severance prior to or during the trial and there was no [*317] showing that the defenses were antagonistic. See Jenkins v. State, Fla.App. 1969, 228 So. 2d 114. For the reasons cited hereinabove, the judgment and sentence herein appealed hereby are affirmed. Affirmed.…
  • Scott v. State, 253 So. 2d 454 (Fla. 4th DCA 1971)
    …d the out-of-court photographic identification of defendant by the victim to be violative of the due process standards set forth in Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. See also Jenkins v. State, Fla.App.1969, 228 So. 2d 114. The decision appealed from is, therefore, affirmed. Affirmed. WALDEN, CROSS and OWEN, JJ., concur.…

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