FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-3290
_____________________________
WILLIE ALLEN LYNCH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.
December 27, 2018
PER CURIAM.
A jury convicted Willie Allen Lynch of selling crack, and the
court sentenced him to eight years in prison. Lynch now appeals,
raising a host of issues. We affirm.
I.
In late 2015, undercover officers bought crack cocaine from
someone who called himself “Midnight.” The officers later
identified Lynch as the seller, and the State brought charges. At
trial, Lynch’s sole defense was misidentification—that he was not
the man known as Midnight. To prove otherwise, the State
introduced testimony of the two undercover officers, both of whom
positively identified Lynch as the man who sold them crack.
The officers routinely drove into high-crime areas, posing as
drug buyers looking for drug sellers. As they drove one night, a
man abruptly flagged them down, identified himself as Midnight,
and asked if they “were good.” One undercover officer responded
that he needed “$50 hard,” meaning $50 worth of crack. After
Midnight retrieved crack from a nearby building, the officer gave
Midnight some money, and Midnight gave the officer crack.
Typically, the officers captured transactions like these using
a special recording system. But because Midnight had approached
them so suddenly, the officers were unable to activate the system.
One officer, though, used his cell phone to surreptitiously snap
photos of Midnight leaning into the car. Then, after completing the
transaction—and to avoid revealing themselves as undercover
operatives—the officers left without arresting Midnight.
Sometime later, the officers sent the cell phone photos, along
with the name Midnight, to a crime analyst. In response, that
analyst provided the officers Lynch’s name and photo. The analyst
told the officers Lynch was a possible match to the man in the cell
phone photos, and the officers promptly concluded that Lynch and
Midnight were indeed one and the same.
At a pre-trial deposition, the crime analyst testified about the
process that led her to make the match. She said she was emailed
a photograph (one from the cell phone), the street address where
the sale occurred, and the name “Midnight.” Turning to law-
enforcement databases, she looked up those who had been
previously arrested at the address. When that yielded nothing, she
searched for those with a nickname “Midnight.” She found several
people with that alias, but she found none who looked like the man
the officers photographed. She then used a facial-recognition
program that compared the photo officers took against photos in
law-enforcement databases. She described the facial-recognition
search process this way:
I took the image [of Midnight], uploaded into the
computer program. There are certain selections. You can
let it be an open ended search. In this case I know the
race and I know the gender, this case being a black male,
and I also wanted to only consider Duval County booking
photos. . . .
2
So those selections were chosen in this case with a photo
and then just hit search and it gives you a photo—
(unintelligible)—almost like a photo line-up.
She went on to say that “the analyst makes a judgment as to
whether or not this is the individual and sends that information
back to the detective that requested it.” She also said the software
would assign a number of stars indicating the likelihood of a
match, but she did not know how many stars were possible or how
the program worked. She did remember though that Lynch’s
photograph had only one star next to it, but it was the highest
ranked match. After identifying Lynch as a potential match, she
forwarded his information—along with his entire rap sheet—to the
officers. The officers then positively identified him as the man they
knew as Midnight, the man who sold them the crack.
II.
The case went to trial, and the undercover officers testified,
but the crime analyst did not. Shortly before trial, Lynch (then
proceeding pro se) moved for a continuance, arguing he was not
prepared to go to trial because he had only recently been allowed
to represent himself. The court denied the request. Lynch moved
to incur costs for a private investigator, which the court granted.
Lynch also moved to suppress evidence of the officers’ earlier
identification, as well as to preclude any in-court identification.
The court agreed to hear that motion during trial and later denied
it. Following jury selection, part of which featured Lynch in jail
attire and shackles, the court heard Lynch’s pro se motion seeking
to compel the State to produce the photographs of the other
“Midnights” contained in the database, as well as the other
photographs the facial-recognition program returned. The court
denied the request, ultimately concluding the photos were not
relevant. Finally, after jury selection but before the trial began, the
trial court revoked Lynch’s self-representation, reappointing the
public defender who conducted the trial.
3
III.
A.
Lynch’s first argument on appeal is that he should have had
access to the other photos the facial-recognition system returned
as possible matches, the ones the analyst deemed nonmatches and
did not forward to the detectives. Lynch contends that those other
photos would have cast doubt on the State’s case and that by not
providing those photos, the State violated Brady v. Maryland,
373
U.S. 83 (1963). We reject this argument.
To prevail under Brady, Lynch had to show “that there is a
reasonable probability that the result of the trial would have been
different if the suppressed documents had been disclosed to the
defense.” Strickler v. Greene,
527 U.S. 263, 289 (1999) (marks
omitted). He has not made that showing here. First, because he
cannot show that the other photos the database returned
resembled him, he cannot show that they would have supported
his argument that someone in one of those photos was the culprit.
Second, his attorney stated on the record that she did not want to
call the analyst who evaluated the photos because the analyst’s
testimony that Lynch was the man in the officers’ photos would
only corroborate the officers’ testimony. And third, the jury
convicted only after comparing the photo the officers took to Lynch
himself and to confirmed photos of Lynch. Under these
circumstances, we cannot conclude that Lynch met his burden to
demonstrate prejudice under Brady.
B.
Lynch also argues that the trial court should have suppressed
the officers’ in-court and out-of-court identifications. We review
only for an abuse of discretion, Jenkins v. State,
96 So. 3d 1110,
1112 (Fla. 1st DCA 2012); Thomas v. State,
748 So. 2d 970, 981
(Fla. 1999), and we reject Lynch’s argument. Use of an
identification obtained through unnecessarily suggestive
procedures violates a defendant’s due process rights. Perry v. New
Hampshire,
565 U.S. 228, 232 (2012). But a suggestive pre-trial
identification is admissible if “despite its suggestive aspects, the
out-of-court identification possesses certain features of reliability.”
Grant v. State,
390 So. 2d 341, 343 (Fla. 1980) (citing Manson v.
4
Brathwaite,
432 U.S. 98, 110, (1977)). The admissibility of an out-
of-court identification is controlled by a two-part test that requires
the court to determine “(1) whether the police used an
unnecessarily suggestive procedure to obtain the out-of-court
identification; and (2) if so, considering all the circumstances,
whether the suggestive procedure gave rise to a substantial
likelihood of irreparable misidentification.”
Id. For in-court
identifications, the analysis is slightly different, but the focus
remains on the totality of the circumstances. Edwards v. State,
538
So. 2d 440, 423 n.6 (Fla. 1989). “An in-court identification may not
be admitted unless it is found to be reliable and based solely upon
the witness’ independent recollection of the offender at the time of
the crime, uninfluenced by any intervening illegal confrontation.”
Hicks v. State,
189 So. 3d 173, 175 (Fla. 4th DCA 2016) (marks
omitted) (citing Fitzpatrick v. State,
900 So. 2d 495, 519 (Fla.
2005)).
Here, even assuming there was an unnecessarily suggestive
procedure, we are convinced—considering the totality of the
circumstances—that there was no substantial likelihood of
irreparable misidentification. In reaching this conclusion, we have
considered the five “Biggers factors”:
the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal,
the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime
and the confrontation.
Grant,
390 So. 2d at 343 (quoting Neil v. Biggers,
409 U.S. 188,
199-200 (1972)). Here, detectives viewed the suspect for only a few
minutes, but they were face-to-face with him for much of that time.
Cf. Perez v. State,
648 So. 2d 715, 719 (Fla. 1995) (identification
was reliable where witness saw suspect for one minute from a
distance of eight to ten feet). And the facts suggest the detectives
were attentive during their interaction, even snapping photos. One
of the officers testified that he was certain that Lynch was the
suspect, and the other testified to having seen Lynch in the area
before the offense. Only about eight days passed from the drug
purchase to the time officers identified Lynch as the culprit.
5
We also find this case factually similar to Manson v.
Brathwaite,
432 U.S. 98 (1977). In that case, an undercover officer
purchased heroin from someone at a suspected drug house.
Id. at
98-101. The officer viewed the suspect for two or three minutes
from a couple feet away.
Id. After the exchange, the officer drove
to police headquarters and gave a description of the drug seller.
Id.
Another officer then produced a photo of a person he believed
matched the description and left it with the first officer to review.
Id. Two days later, the first officer viewed the photo and positively
identified the suspect.
Id. The Supreme Court determined that the
procedure was unduly suggestive and proceeded to weigh the five
Biggers factors.
Id. Ultimately, the Court determined the officer’s
identification was reliable considering the circumstances and
noted that “[j]uries are not so susceptible that they cannot measure
intelligently the weight of identification testimony that has some
questionable feature.”
Id. at 117. The same is true here. We find
no abuse of discretion in the court’s admission of the in-court and
out-of-court identifications.
C.
Lynch next argues that the trial court was wrong to revoke his
right to self-representation, an issue we review for an abuse of
discretion. Kearse v. State,
605 So. 2d 534, 537 (Fla. 1st DCA 1992).
Criminal defendants have a Sixth Amendment right to self-
representation, Indiana v. Edwards,
554 U.S. 164, 170-71 (2008),
but the right is not absolute and certainly “is not a license to abuse
the dignity of the court or to frustrate orderly proceedings.” Brown
v. State,
45 So. 3d 110, 115 (Fla. 1st DCA 2010). In this case, the
court allowed Lynch to represent himself for a portion of the
proceedings, but after concluding Lynch could not behave properly,
the court revoked the self-representation and appointed counsel.
The court specifically found that Lynch was “unwilling to or
incapable of abiding by the rules of the court and procedure, and
therefore has shown [] that he is not competent to represent
himself.” That conclusion was supported by the record, which
showed Lynch continually interrupted the judge, made outbursts,
and even had to be removed from the courtroom for a short time.
(The court also heard from Lynch’s sister, who told the court that
she did not think Lynch was capable of representing himself
6
adequately.) Considering all relevant circumstances, we find no
abuse of discretion.
D.
Finally, Lynch argues that the cumulative effect of several
errors deprived him of his right to a fair trial. He cites a reference
in the State’s opening argument to the officers’ operating in high-
crime areas and the officers’ later testimony to the same point. We
agree with the State that these comments and testimony—
individually or combined with everything else—do not warrant a
new trial. Similarly, we conclude that the officer’s testimony that
Lynch’s photo was in a “known database”—alone or combined with
the other testimony—did not deprive Lynch of a fair trial.
As part of his cumulative-error argument, Lynch also notes
that he appeared in jail clothes and shackles during part of jury
selection. Lynch conducted the jury instruction himself,
proceeding pro se at the time. To avoid unfair prejudice and to
protect the presumption of innocence, criminal defendants have a
general right to appear unshackled and in non-prison clothes
whenever the jury is present. See Bryant v. State,
785 So. 2d 422,
428 (Fla. 2001); Heiney v. State,
447 So. 2d 210, 214 (Fla. 1984).
But a defendant’s appearance in shackles or prison clothes does
not automatically warrant a new trial. Here, Lynch asked the trial
court in the middle of jury selection whether the court could
remove the shackles. The court responded that “the sheriff’s office
controls the security,” and Lynch made no further inquiry about
the shackles. As to the clothes, Lynch asked after a lunch break
whether he could change clothes. The court noted it was the “first
time [it] heard from [Lynch] that [he] would like to be in some other
clothes,” and the court allowed Lynch to change.
We conclude that Lynch’s limited appearance in shackles and
prison garb at jury selection does not warrant a new trial. Lynch
did not ask to strike the jury panel that saw him, and he accepted
the jury as selected. When he raised the shackle issue, he made no
further inquiry after the court apparently deferred to the sheriff’s
office. Counsel in this case acquiesced to proceeding without
further inquiry. See Finney v. State,
660 So. 2d 674, 683 (Fla. 1995)
(noting that where “[n]o objection was made to the court’s decision
to defer to the sheriff on the matter,” the issue was not preserved
7
for appeal); Eberhardt v. State,
550 So. 2d 102, 104 (Fla. 1st DCA
1989) (“Although we conclude that it was error for the court to
permit the venire to see [defendant] in the courtroom in prison
clothes, defense counsel did not properly preserve this objection as
a basis for reversal.”).
IV.
We have considered and rejected Lynch’s remaining
arguments, including his argument that the trial court held an
insufficient Richardson hearing, his argument that the trial court
abused its discretion in denying his motion for a continuance, and
his argument that the trial court should have granted a mistrial.
We have carefully considered all arguments presented, and we
conclude that none presents a basis for reversal.
AFFIRMED.
JAY, WINSOR, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Victor D. Holder, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate,
Assistant Attorney General, Tallahassee, for Appellee.
8
