FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1425
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DERICK LEVELL JONES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.
September 9, 2019
PER CURIAM.
Derick Levell Jones challenges his conviction for robbery with
a weapon, arguing that the trial court should have granted his
motion to exclude an out-of-court identification by the robbery
victim. Because his argument was not preserved, we affirm.
Facts
Jones moved to exclude testimony about the victim’s out-of-
court identification of Jones as the perpetrator of the robbery. At
the motion hearing, Investigator Jimmie Tatum and Deputy Lionil
Martinez testified that they interviewed the victim, who spoke
Spanish. Martinez was the only Spanish-speaking officer
available at the time. Tatum and Martinez showed the victim a
BOLO with three pictures on it. Tatum testified that the person
depicted in the BOLO was not Jones, but another suspect they
were trying to identify. The victim said that the person who robbed
him was “a bit more bearded.” Tatum obtained a photo line-up
created by the Intelligence Unit. He gave the line-up to Martinez
and left the room. Martinez read the victim the instructions for
the line-up in Spanish. Martinez did not know which photo in the
line-up depicted Jones. When Martinez showed the line-up to the
victim, the victim picked Jones’ photograph and identified Jones
as the person who robbed him.
Defense counsel made several arguments in support of his
motion to exclude the identification: (1) the line-up was not
presented by an independent administrator as required by statute,
(2) the translated instructions for the line-up did not follow the
instructions on the form, and (3) the officers were not completely
honest with the court about what happened before the
identification. The prosecutor asserted that the statute requiring
an independent administrator was not in effect when the line-up
was administered, that nonetheless Martinez was an independent
administrator, that the officers followed the proper procedures
when administering the line-up, and that any variations in the
instructions were attributable to Martinez translating the
instructions into Spanish for the victim.
The trial court denied the motion. Jones went to trial and was
convicted of robbery with a weapon. This appeal follows.
Analysis
We review the trial court’s denial of a motion in limine for an
abuse of discretion. Bass v. State,
147 So. 3d 1033, 1035 (Fla. 1st
DCA 2014). Before excluding an out-of-court identification, the
trial court must consider two factors: “(1) did the police employ an
unnecessarily suggestive procedure in obtaining an out-of-court
identification; [and] (2) if so, considering all the circumstances, did
the suggestive procedure give rise to a substantial likelihood of
irreparable misidentification.” Simmons v. State,
934 So. 2d 1100,
1118 (Fla. 2006) (quoting Grant v. State,
390 So. 2d 341, 343 (Fla.
1980)).
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Jones argues that the identification was unnecessarily
suggestive because the victim was shown pictures of Jones in a
BOLO before being shown the photo line-up. This argument was
not preserved. Jones never presented this argument to the trial
court, so it cannot be addressed for the first time on appeal. Pryor
v. State,
48 So. 3d 159, 162 (Fla. 1st DCA 2010).
Even if the argument had been preserved, the identification
procedure used here was not unnecessarily suggestive. Tatum
testified that the BOLO shown to the victim before he viewed the
photo line-up did not include a picture of Jones. The photo line-up
was created by the Intelligence Unit, not by the lead investigator.
There was no testimony that Jones was the only person in the
photo-line up that matched the description given by the witness.
Carrasco v. State,
470 So. 2d 858, 860 (Fla. 1st DCA 1985). The
video recording of the identification process shows that Martinez
did not direct the victim’s attention to any one picture in the line-
up. Cf. Walton v. State,
208 So. 3d 60, 65 (Fla. 2016) (explaining
that an identification procedure was unnecessarily suggestive
when the detective repeatedly drew the witness’s attention to the
picture depicting the defendant). Instead, Martinez told the victim
that he did not have to make an identification and he should take
his time when examining the photographs. The victim conveyed
that he understood the directions. Based on this record, we find
the procedure used by the officers was not unnecessarily
suggestive.
Finding no error in the trial court’s denial of the motion in
limine, Jones’ judgment and sentence are AFFIRMED.
B.L. THOMAS, ROWE and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Archie F. Gardner, Jr.,
Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Barbara Debelius, Assistant
Attorney General, Criminal Appeals, Tallahassee, for Appellee.
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