Date: 12-03-2016

Case Style:

Case Number: SC13-1652

Judge: James E. C. Perry

Court: Supreme Court of Florida

Plaintiff's Attorney:

Pamela Jo Bondi, Attorney General, Trishia Meggs Pate, Bureau Chief, and Virginia Chester Harris, Assistant Attorney General

Defendant's Attorney:

Nancy Ann Daniels, Public Defender, and Pamela Diane Presnell, Assistant Public Defender

Description: On September 10, 2008, Kristina Salas and her sister, Karine Nalbandyan,
placed their children into a parked car. As Salas leaned into the car, a man
ambushed her, held a gun to her head, and demanded that she give him her purse or
be killed. The two struggled over the purse until the gun fell to the ground. Then
the man picked up his gun, went to the other side of the car, and demanded
Nalbandyan’s purse.
Detectives Shannon Fusco and James Johnston of the Jacksonville Sheriff’s
Office were investigating a theft nearby when they came upon the scene.
Detective Fusco identified herself as a law enforcement officer and ordered the
man to put his gun down. The man and another man at the scene responded by
shooting at the detectives. Two eyewitnesses, Lashonda Jackson and her teenage
daughter, Antoinette Gillan, observed the crime. Jackson later identified Leronnie
Lee Walton as one of the men shooting at the detectives.
Almost two months after the crime, Detective Venosh and Detective Padgett
interviewed Gillan. Detective Padgett instructed Gillan to look at a two photo
arrays and identify anyone that she recognized in connection with the shooting.
Gillan was unable to identify anyone in the first array. She then examined the


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second set of photographs and initially said she was not sure if she recognized
anyone. Detective Padgett responded, “I noticed you moved that one [photo] and
kind of looked back a little bit or something when you looked at that one.” Gillan
replied that a man in one photo in the second array looked familiar. Detective
Padgett explained to Gillan the importance of making an identification, noting how
dangerous the shooters were and that her mother could have been killed. Detective
Padgett then said, “I’m not trying to point you towards anybody, it’s just that you
really did look—I saw the look on your face when you looked at that one right
there.” Afterwards, Gillan identified the photo of Walton as a depiction of the man
she saw shooting at law enforcement officers.
When the State attempted to call Gillan as a witness during Walton’s jury
trial, Walton moved to suppress Gillan’s identification as impermissibly suggestive
and likely unreliable. The trial court denied Walton’s motion to suppress.
Ultimately, Walton was convicted of two counts of attempted murder of a
law enforcement officer with possession and discharge of a firearm during
commission of the attempted murder, and two counts of attempted armed robbery
with possession of a firearm during the commission of the attempted armed
robbery. After vacating the initial sentencing order, the trial court resentenced
Walton to two terms of thirty years for the attempted murders with mandatory
minimum sentences of twenty years and two terms of fifteen years for the


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attempted armed robberies with mandatory minimum sentences of ten years. The
trial court ordered that all sentences and mandatory minimums run consecutively.
Walton was not present at his resentencing.
On appeal to the First District, Walton argued that the trial court erred by
imposing consecutive mandatory minimum sentences. While the First District
reversed Walton’s sentences because he was not present at resentencing, the First
District concluded that any mandatory minimum sentence required by the 10-20
Life statute must be imposed consecutively to any other sentence imposed for any
other felony regardless of whether the defendant fires a gun or only carries or
displays it. Walton, 106 So. 2d at 528. Walton petitioned this Court for review.
ANALYSIS
Walton has identified three errors that merit quashing the First District’s
decision. The trial court erred in (1) concluding that section 775.087, Florida
Statutes—the 10-20-Life statute—required Walton’s sentences to be imposed
consecutively, (2) failing to instruct the jury on attempted manslaughter, and (3)
admitting improper identification testimony. For the following reasons, we quash
the First District’s decision and remand with instructions to return the case to the
circuit court for a new trial.
First, the First District erred in concluding that the 10-20-Life statute
required Walton’s sentences to be imposed consecutively, irrespective of whether


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Walton fired, carried, or displayed a firearm. We recently addressed this issue in
Williams v. State, 186 So. 3d 989 (Fla. 2016). We reiterated that “consecutive
sentencing of mandatory minimum imprisonment terms for multiple firearm
offenses is impermissible if the offenses arose from the same criminal episode and
a firearm was merely possessed but not discharged.” Id. at 993. Accordingly, we
quash the First District’s opinion to the extent it is inconsistent with Williams.
Second, Walton is entitled to a new trial because the trial court committed
fundamental error by failing to instruct the jury on attempted manslaughter as a
lesser included offense of second-degree murder. This issue is a pure question of
law and is therefore subject to de novo review. Griffin v. State, 160 So. 3d 63, 67
(Fla. 2015) (citing Puglisi v. State, 112 So. 3d 1196, 1204 (Fla. 2013)).
“Necessarily lesser included offenses are those offenses in which the
statutory elements of the lesser included offense are always subsumed within those
of the charged offense.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006). “The
law requires that an instruction be given for any lesser offense all the elements of
which are alleged in the accusatory pleadings and supported by the evidence
adduced at trial.” State v. Weller, 590 So. 2d 923, 926 (Fla. 1991). “The trial
judge has no discretion in whether to instruct the jury on a necessarily lesser
included offense. Once the judge determines that the offense is a necessarily lesser


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included offense, an instruction must be given.” Montgomery v. State, 39 So. 3d
252, 259 (Fla. 2010) (quoting State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986)).
Attempted manslaughter by act is a necessarily lesser included offense of
attempted second-degree murder because attempted second-degree murder
contains all of the elements of the crime of attempted manslaughter by act.
Compare § 782.04(2), Fla. Stat. (2008) (defining second-degree murder as an
“unlawful killing of a human being, when perpetrated by any act imminently
dangerous to another and evincing a depraved mind regardless of human life,
although without any premeditated design to effect the death of any particular
individual”), with § 782.07(1), Fla. Stat. (2008) (defining manslaughter as a
“killing of a human being by the act . . . of another, without lawful justification . . .
and in cases in which such killing shall not be excusable homicide or murder”); see
also Montgomery, 39 So. 3d at 259 (noting that “second-degree murder was only
one step removed from the necessarily lesser included offense of manslaughter”).
Here, Walton was charged with second-degree murder, with a sentencing
enhancement because the victim was a law enforcement officer. See § 782.04(2),
Fla. Stat. (2008) (attempted second-degree murder); § 782.065(2), Fla. Stat. (2008)
(sentencing enhancement for law enforcement victim). Accordingly, the trial court
was required to give an instruction for attempted manslaughter by act when it gave
the instruction for attempted second-degree murder.


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Not only did the trial court err by failing to give the instruction for attempted
manslaughter by act, but its failure constituted fundamental error. Fundamental
error occurs “only when the omission is pertinent or material to what the jury must
consider in order to convict.” Griffin v. State, 160 So. 3d 63, 66 (Fla. 2015); see
also Montgomery, 39 So. 3d at 258 (same). We have repeatedly held that the
failure to correctly instruct the jury on a necessarily lesser included offense
constitutes fundamental error. See, e.g., Williams v. State, 123 So. 3d 23, 27 (Fla.
2013) (holding that fundamental error occurs when the trial judge gives an
incorrect instruction on the necessarily lesser included offense of attempted
manslaughter for a defendant convicted of attempted second-degree murder);
Montgomery, 39 So. 3d at 259 (same). If giving an incorrect instruction on a
necessarily lesser included offense constitutes fundamental error, then a fortiori
giving no instruction at all likewise constitutes fundamental error. Accordingly,
Walton is entitled to a new trial with correct instructions for the necessarily lesser
included offense of attempted manslaughter by act.
Even if the faulty jury instructions did not constitute a fundamental error, we
would be forced to quash the district court’s decision because Detective Padgett
employed an impermissibly suggestive photo array process. During the trial,
Walton argued that Gillan’s identification of Walton as the perpetrator should be


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excluded because the photo identification procedure was impermissibly suggestive
and created a substantial likelihood of misidentification. We agree.
Since a trial court’s ruling on a motion to suppress is a mixed question of
law and fact that determines constitutional rights, we employ a two-step standard
of review:
In reviewing a trial court’s ruling on a motion to suppress, appellate courts must accord a presumption of correctness to the trial court’s determination of the historical facts, but must independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment. See Connor v. State, 803 So. 2d 598, 608 (Fla. 2001); Stephens v. State, 748 So. 2d 1028, 1032 (Fla. 1999); Albritton v. State, 769 So. 2d 438 (Fla. 2d DCA 2000).
Moody v. State, 842 So. 2d 754, 758 (Fla. 2003).
The primary evil to be avoided in the introduction of an out-of-court
identification is a very substantial likelihood of misidentification. An
impermissibly suggestive identification procedure is one that creates the danger of
misidentification so great that it violates due process. Simmons v. United States,
390 U.S. 377, 386 (1968). The test promulgated by the United States Supreme
Court and adopted by this Court is twofold: (1) did the police employ an
unnecessarily suggestive procedure in obtaining an out-of-court identification; and
(2) if so, considering the totality of 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). In this case, Gillan’s identification


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should have been excluded because the method employed by the detective was
impermissibly suggestive and gave rise to a likelihood of misidentification.
The first prong of the analysis, the presence of a suggestive identification
procedure, is satisfied because Detective Padgett repeatedly called Gillan’s
attention to the picture depicting Walton. The identification procedure in this case
is analogous to the procedure employed in State v. Sepulvado, 362 So. 2d 324, 326
(Fla. 2d DCA 1978). In Sepulvado, a detective testified that he asked the victim to
look at a photo array containing 150 pictures of white males. Id. at 325. While the
victim was still examining the photo array, the detective brought three additional
photographs into the interrogation room, all three depicting black males. Id. at
326. After the victim reviewed the 150 pictures, the detective asked the victim to
look at the three additional pictures. Id. The victim identified all three men,
including the defendant, as his assailants. Id. The Second District held that
because the detective called the victim’s attention to the defendant’s picture, the
procedure was impermissibly suggestive. Id. Similarly, in this case, Detective
Padgett called Gillan’s attention to the picture without her having given any
indication that she recognized Walton. By repeatedly asking Gillan questions
about Walton’s photograph, Detective Padgett influenced Gillan to pay special
attention to that photo. As in Sepulvado, we conclude that the identification
procedure employed in this case was suggestive.


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We also conclude that considering the totality of the circumstances, the
suggestive identification procedure gave rise to a substantial likelihood of
irreparable misidentification. To reach that conclusion, we consider the five
factors set out in Neil v. Biggers, 409 U.S. 188 (1972): (1) the opportunity of the
witness to view the criminal at the time of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the
level of certainty demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. Grant v. State, 390 So. 2d
341, 343 (Fla. 1980) (citing Biggers, 409 U.S. at 199-200).
As to the first factor, the witness’s opportunity to view the criminal at the
time of the crime, we conclude that Gillan did not have a meaningful opportunity
to see Walton commit the crime. Gillan witnessed the incident from behind a
dumpster, where she managed to “peek” and see two men shooting at law
enforcement officers. Gillan provided very little detail of what she witnessed,
suggesting that her effort to hide from the gunfire may have understandably
thwarted her opportunity to see the incident.
As to the second factor, the witness’s degree of attention, Gillan’s hazy
memory of the incident does not give us confidence in her identification of Walton.
During her interview, Gillan stated that one of the men had short dreadlocks and


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that there were two men shooting at law enforcement officers. However, at trial,
Gillan was still unsure if one of the suspects had dreadlocks.
The third factor, the accuracy of the witness’s prior description of the
assailant, does not weigh in favor of admitting the identification because it is
unclear what Gillan’s prior description of the defendant was. Gillan testified that
after the shooting, she spoke to police regarding what she witnessed. The record is
unclear as to what exactly she told law enforcement officers prior to identifying
Walton. As such, we give little weight to this factor. The State points out that at
her deposition and at Walton’s trial, Gillan maintained that Walton was one of the
men she saw shooting at law enforcement officers. However, that fact is irrelevant
because her deposition and her trial testimony occurred after the detective
improperly influenced her identification of Walton.
As to the fourth factor, the level of certainty demonstrated by the witness at
the confrontation, we conclude that Gillan did not display a high level of certainty
when she identified Walton. Gillan initially said she was “not sure” if she
recognized anyone. Further, Gillan testified at trial that she was unsure of her
identification of Walton.
As to the fifth factor, we conclude that the time between the shooting and the
identification was too great for Gillan’s identification to be deemed reliable.
Almost two months had passed since the shooting and the date Gillan made the


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identification of Walton. See Fitzpatrick v. State, 900 So. 2d 495, 518 (Fla. 2005)
(holding that a three-day gap between the observed event and the witness’s
identification contributed to the unreliability of the identification).
In short, none of the five factors gives us confidence that Gillan accurately
identified Walton as the assailant she saw on September 10, 2008. To the contrary,
the faulty photo array procedure gave rise to a substantial likelihood of an
irreparable misidentification. See Simmons, 934 So. 2d at 1118. Accordingly, we
reverse Walton’s convictions because they were tainted by inappropriate evidence
of eyewitness identification.

Outcome:

For the foregoing reasons, we quash the First District’s decision in Walton to the extent it is inconsistent with this opinion. We also remand this case to the First District with instructions to return this case to the circuit court for a new trial, at which Walton is entitled to a jury instruction for attempted manslaughter by act and at which the State may not present the tainted evidence of Gillan’s eyewitness identification.

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