MARQUIS VALENTINE v. STATE OF FLORIDA

West Palm Beach, FL - Criminal Defense Attorney, first-degree murder





• The Murder

The victim and his best friend went out for drinks. They then went to

a convenience store to pick up beer and lottery tickets.

2

A manager and two employees were working at the store. The manager

was behind the counter, one employee was stocking merchandise, and the

other was outside. The manager saw the victim and his friend get in line

to purchase lottery tickets. They appeared to be drunk or high and were

loud and rude, cursing at each other and the manager.

The manager then saw the defendant and his girlfriend enter the store.1

The manager had seen them together in the store on other occasions. They

went to the drink cooler where the defendant opened the cooler door. They

then got in line behind the victim and his friend.

What happened next is in conflict. Suffice it to say that the victim and

the defendant had a verbal exchange. One version has the victim initiating

the conversation; in the other, the defendant initiated the exchange. Both

versions however end with the defendant indicating he will see the victim

outside. The defendant left the store, followed by the victim and his friend.

The victim’s friend was walking to the passenger side of the car when he

saw the victim put his beer down and hands up. The defendant then shot

the victim and ran off.

The manager heard a shot outside the store but did not see the shooting

because he was helping another customer. He looked at the surveillance

screen and saw the defendant running away.

Deputies responded to the scene. One of them saw the unresponsive

victim sitting in the driver’s seat while a store employee and the victim’s

friend tried to help him. The victim’s friend was hysterical, yelling “please

don’t let him die. I can’t believe they shot him. They know who—they

know him.” Two deputies removed the victim from the vehicle to render

CPR.



When the paramedics arrived, the first deputy spoke with the manager

and victim’s friend. The manager told him the defendant was wearing a

dark t-shirt, light pants, gold teeth, a gold necklace, and a dark hat. The

victim’s friend described the defendant as a black male wearing a blackcolored shirt, light colored shorts, a black hat, and black shoes. A BOLO

issued.

Detective R. arrived. He obtained a copy of the surveillance video. After

viewing it, he recognized the defendant’s girlfriend from a prior

investigation. She lived a few houses away.

1 The precise relationship between two is unclear, but she is referred to as the

girlfriend for ease of reference.

3

After some additional research, law enforcement developed a suspect.

Detective P. created a photo lineup. Detective R. administered the photo

lineup to the manager inside his vehicle while parked at the store. The

manager identified the defendant as the shooter and was 100 percent sure.



Detective R. later interviewed the defendant’s childhood friend that he

previously dated; she identified the defendant from a still photograph

taken from the surveillance video. She also identified him in person and

in the photograph at trial.

The crime scene investigator lifted fingerprints off the cooler inside the

store where the surveillance video showed he touched the cooler door. The

latent print examiner would later testify the prints from the cooler matched

the defendant’s known standards.

• The Motion to Suppress

Prior to trial, the defendant moved to suppress the manager’s

eyewitness identification. He argued the identification should be

suppressed because: 1) law enforcement employed an unnecessarily

suggestive procedure that gave rise to a substantial likelihood of

irreparable misidentification; 2) the identification’s probative value was

outweighed by the danger of unfair prejudice; and 3) the identification

violated his due process rights.



The detectives testified at the hearing. Detective P. testified that both

he and Detective R. watched the surveillance video and recognized the

defendant’s girlfriend. Detective P. researched her associates, residences,

and case history at the sheriff’s office. Detective P. discovered the

defendant was one of the girlfriend’s known associates. The defendant’s

photograph was then generated as a possible suspect.

Detective P. testified the photographic lineup was created from a

program that produces a list of suspects based on specific characteristics,

including height, weight, skin color, hair, tattoos, and beards. The

photographic lineup had a black bar above two of the photographs, the

defendant’s and photograph number six.



On cross-examination, Detective P. explained the black line above the

defendant’s photograph.

I know it’s weird, but it – so when I put together that photo

lineup, okay, and I know that my suspect is in a specific

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position, in order for me to make a different photo lineup, I

just hit rearrange, or random placement. Those black lines

appear randomly. So it’s not like I had to crop that photo out.

That’s the photo that was in there and when I hit random the

line just moves around.

Although he knew where the defendant was positioned in the photograph

lineup, he did not tell Detective R.

Detective R. testified he did not see the photographic lineup and could

not remember seeing the defendant’s photograph prior to administering

the lineup. He did nothing to suggest who to pick in the lineup.



Within fifteen seconds, the manager identified the defendant as “the

person he saw do the shooting.” He indicated he was 100 percent certain

and explained he had seen the defendant in his store many times but did

not know his name. Detective R. responded, “very good.” After Detective

R. finished the lineup, Detective P. showed the manager the defendant’s

picture.



The trial court denied the motion to suppress.

• The Trial

The case proceeded to trial. During the trial, the manager identified

the defendant and was cross-examined about whether he originally told

law enforcement the defendant did not have any facial tattoos and whether

he had watched television or media about the crime. The childhood friend

identified the defendant in the courtroom and in the photo from the

surveillance video over defense objection. The detectives testified

regarding their investigation, including the photographic lineup and the

victim’s friend’s comment at the scene that “they know him,” which was

admitted over defense objection. The victim’s friend also testified. The

latent print examiner testified the defendant’s prints were found on the

cooler.

The defendant requested special jury instructions on eyewitness and

expert witness testimony. The trial court denied those requests.

The jury convicted the defendant of first-degree murder. The trial court

sentenced him to life in prison without parole. The defendant moved for a

new trial or arrest of judgment, which the court denied. He now appeals

his conviction and sentence.

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• Issue One: The Motion to Suppress

The defendant argues the trial court erred in denying his motion to

suppress the manager’s eyewitness identification because it was: 1)

unnecessarily suggestive; 2) led to a substantial likelihood of

misidentification; 3) violated Florida’s Constitution; and 4) was more

prejudicial than probative. The defendant suggests we should adopt a new

test for eyewitness identification.

The State responds that we are restricted to the existing eyewitness

identification test, and this identification was neither unnecessarily

suggestive nor led to a substantial likelihood of misidentification. We find

no error in the trial court’s ruling on the motion to suppress.

We review an order on a motion to suppress an out-of-court

identification for an abuse of discretion. Walker v. State, 776 So. 2d 943,

945 (Fla. 4th DCA 2000).

We employ the two-pronged test developed by the U.S. Supreme Court

to determine if an out-of-court identification violates due process. Manson

v. Brathwaite, 432 U.S. 98, 114 (1977). First, we must decide if “the police

employ[ed] an unnecessarily suggestive procedure in obtaining an out-ofcourt identification.” Walton v. State, 208 So. 3d 60, 65 (Fla. 2016).

Second, we must consider “the totality of the circumstances,” to determine

whether “the suggestive procedure g[a]ve rise to a substantial likelihood of

irreparable misidentification.” Id.

The defendant first argues we should modify the Manson test in line

with other states to account for the array of factors outside the criminal

justice system’s control that studies have shown contribute to

misidentifications. He suggests the current test abridges Florida’s

constitutional protections.

Because our supreme court expressly adopted Manson in Grant v.

State, 390 So. 2d 341 (Fla. 1980), we are bound to apply its test.2 See

Putnam Cty. Sch. Bd. v. Debose, 667 So. 2d 447, 449 (Fla. 1st DCA 1996).

Under Manson, we first review whether the identification was

unnecessarily suggestive.

2 The Innocence Project, Inc. and the Innocence Project of Florida filed amici

curiae briefs in support of the defendant’s argument that Florida’s law on

eyewitness identification should be updated based on recent research. This sea

change must come from our supreme court. Until then, we are bound by Manson.

6

a. Unnecessarily Suggestive

The defendant argues the lineup was unnecessarily suggestive because:

1) his photograph had a black bar across the top of it; 2) he did not look

similar to the photograph in position six; and 3) his facial features were

too dissimilar from the rest of the photographs. He relies on Walker v.

State, 223 So. 3d 388 (Fla. 5th DCA 2017), and State v. Dorsey, 5 So. 3d

702 (Fla. 2d DCA 2009), for support. Neither case dictates a reversal.

In Walker, the Fifth District held a photographic lineup was

unnecessarily suggestive because the defendant was the only person in

the lineup with extensive facial scarring and blotchy complexion. 223 So.

3d at 389. Similarly, in Dorsey, the Second District denied certiorari

because the State failed to demonstrate the trial court applied the wrong

law in excluding the out-of-court-identification. 5 So. 3d at 706.

Conversely, here, the defendant’s photograph was not the only one with

a black bar above the photograph; the photograph in position six also had

a black bar above it. Nothing in the record suggests the manager’s

identification was influenced by the black bar. Rather, the manager

testified he recognized the defendant as someone who had been in his store

before and told Detective R. he was 100 percent sure.

The defendant also argues his photograph was dissimilar to the other

photographs. “Generally, photographic arrays have been upheld where

they have included ‘a reasonable number of persons similar to any person

then suspected whose likeness is included in the array.’” State v. Francois,

863 So. 2d 1288, 1289 (Fla. 4th DCA 2004) (quoting LaFave, et al., Crim.

P. § 7.4(e) (2d ed. 1999)). “Photographs used in lineups are not unduly

suggestive if the suspect’s picture does not stand out more than those of

the others, and the people depicted all exhibit similar facial

characteristics.” Id. at 1289–90.

Here, all six photographs shared similar characteristics: skin color,

hair style, and nose and lip shapes. The defendant suggests his head

shape, forehead, and eyebrows are dramatically different from the rest, but

a “lineup of clones is not required.” United States v. Arrington, 159 F.3d

1069, 1073 (7th Cir. 1998). While some have more facial hair than others,

the manager was specifically instructed not to focus on facial hair. See

Green v. State, 641 So. 2d 391, 395 (Fla. 1994).

The defendant next argues the administration of the lineup was

unnecessarily suggestive because: 1) the photographs were administered

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simultaneously, rather than sequentially; 2) the lineup was not doubleblind because Detective R. was the lead detective; and 3) Detective R. told

the manager “very good” after he selected the defendant.



“The Supreme Court has not adopted a rule that only ‘the best’

approach (as the latest social science research identifies the best current

understanding) can be used.” United States v. Johnson, 745 F.3d 227, 229

(7th Cir. 2014). In fact, “[t]he Supreme Court of New Jersey, which has

gone further than any other appellate tribunal in controlling the methods

of obtaining and presenting eyewitness identifications, has declined to

require sequential methods exclusively.” Id. (citing State v. Henderson,

208 N.J. 208, 256–58 (2011)). And, double-blind lineups are not required.

See, e.g., State v. Gibson, 935 So. 2d 611, 613 (Fla. 3d DCA 2006)

(quashing a trial court’s order requiring, among other things, a doubleblind lineup, because the “standard lineup procedure has been repeatedly

upheld as constitutionally sound.”).

Notwithstanding existing caselaw, the defendant argues our statutes

require double-blind administration of lineups. They do not. Section

92.70, Florida Statutes (2019), requires an independent administrator, “a

person who is not participating in the investigation of a criminal offense

and is unaware of which person in the lineup is the suspect,” to administer

a lineup. § 92.70(2)(b), Fla. Stat. The statute also provides that “in lieu of

using an independent administrator, a law enforcement agency may

conduct a photo lineup eyewitness identification procedure” using:

1. An automated computer program that can automatically

administer the photo lineup directly to an eyewitness and

prevent the lineup administrator from seeing which

photograph the eyewitness is viewing until after the procedure

is completed.

. . . .

3. Any other procedure that achieves neutral administration

and prevents the lineup administrator from knowing which

photograph is being presented to the eyewitness during the

identification procedure.

Id. § 92.70(3)(a)(1), (3), Fla. Stat.

Law enforcement complied with section 92.70. Although Detective R.

was the lead detective, Detective P. assembled the lineup on a computer

program. Detective R. had no part in preparing the lineup, nor did he

know who was in the lineup before it was administered. And Detective R.’s

8

“very good” comment was made after the manager identified the defendant.

See also Rimmer v. State, 825 So. 2d 304, 317 (Fla. 2002).

In short, law enforcement did not employ an unnecessarily suggestive

procedure in obtaining the manager’s out-of-court identification.

b. Substantial Likelihood of Misidentification

The defendant next argues the manager’s identification led to a

substantial likelihood of misidentification because: 1) his opportunity to

view the shooter was brief; 2) his attention was diverted; 3) he described

only the shooter’s clothing and failed to describe any facial tattoos; and 4)

five hours elapsed between the offense and the lineup. The defendant

concedes the manager was confident in his identification, but argues there

is a weak correlation between identification accuracy and confidence,

which can be tainted or exaggerated by suggestive identification

procedures.

The record reflects the manager saw the defendant in the store several

times before the shooting. Although he was busy with other customers,

he saw the defendant enter the store, stand in line with his girlfriend, and

run away on the surveillance screen. The manager’s description of the

defendant was consistent with the other eyewitnesses. See Tumblin v.

State, 747 So. 2d 442, 445 (Fla. 4th DCA 1999). He was 100 percent sure

of his identification and identified the defendant within fifteen seconds of

being shown the photographic lineup.

In short, this photographic lineup did not lead to a substantial

likelihood of misidentification.

c. Section 90.403, Florida Statutes

The defendant’s last argument on this issue is that the probative value

of the manager’s identification was outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. He suggests the

probative value is low because the identification is not reliable, while the

danger of unfair prejudice is high because juries “tend to overvalue or

overweigh eyewitness identification testimony.”

“Relevant evidence is inadmissible if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.” §

90.403, Fla. Stat. (2019). For relevant, probative evidence “to be deemed

unfairly prejudicial, it must go beyond the inherent prejudice associated

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with any relevant evidence.” Martinez v. State, 265 So. 3d 704, 705 (Fla.

4th DCA 2019) (quoting State v. Gad, 27 So. 3d 768, 770 (Fla. 2d DCA

2010)).

Here, the identification was reliable. It was highly probative to identify

the defendant as the shooter. The manager had seen the defendant several

times before in the store, saw him that day in the store and running from

the scene, and was able to identify him in fifteen seconds within hours of

the murder. The prejudice is only that inherent with its relevancy.

In short, the identification was more probative than prejudicial.

• Issue Two: Admission of the Manager’s Prior Consistent

Statement

On this issue, the defendant argues the trial court erred in admitting

the manager’s prior consistent statement because: 1) the crossexamination did not imply improper influence; and 2) even if it did, the

statement was made after the influence arose.

“A trial court’s ruling on the admissibility of evidence is subject to an

abuse of discretion standard of review, but the court’s discretion is limited

by the rules of evidence and the applicable case law.” Horwitz v. State,

189 So. 3d 800, 802 (Fla. 4th DCA 2015).

At trial, defense counsel asked the manager on cross examination

about the differences in his description of the defendant during trial and

in his statements to law enforcement at the crime scene. In doing so,

defense counsel asked if he had read newspaper articles about the case.

He answered no.

Defense counsel then attempted to impeach the manager with his

deposition testimony in which he testified he previously saw the case in

the newspapers and on television. On redirect, the State asked the

manager if he recalled telling defense counsel the shooter had tattoos on

his face and neck during his deposition. The defense objection to this

statement was overruled.

On appeal, the defendant argues the prior consistent statement (that

the shooter had facial tattoos) was erroneously admitted because: 1) the

cross-examination did not raise an implication of recent fabrication,

influence, or motive to lie; and 2) the deposition statement was made after

the defendant had an opportunity to review the photographic lineup and

newspaper articles. The State responds the cross-examination implied

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recent fabrication, and the statement was made before the alleged

influence arose.

“Generally, prior consistent statements are inadmissible to corroborate

or bolster a witness’s trial testimony.” Taylor v. State, 855 So. 2d 1, 22

(Fla. 2003). “Because they are usually hearsay, . . . ‘prior consistent

statements . . . must qualify under a hearsay exception.’” Id. at 22–23

(quoting Bradley v. State, 787 So. 2d 732, 743 (Fla. 2001)).

Statements are not hearsay “if . . . the person who made the prior

consistent statement testifies at trial and is subject to cross-examination

concerning that statement; and the statement is offered to rebut an

express or implied charge . . . of improper influence, motive, or recent

fabrication.” Id. at 23 (quoting Chandler v. State, 802 So. 2d 186, 197 (Fla.

1997)); see also § 90.801(2)(b), Fla. Stat. (2019). “[A] witness’s prior

consistent statement[] used for rehabilitation must have been made before

the existence of a fact said to indicate bias, interest, corruption, or other

motive to falsify the prior consistent statement.” Taylor, 855 So. 2d at 23.

Here, the defendant cross-examined the manager on his failure to

include the defendant’s facial tattoos in his description to law enforcement

at the crime scene. The defendant then asked about whether he had seen

anything about the case in the news since that description. When the

manager said no, defense counsel impeached the manager with his prior

deposition testimony where he testified he saw the case in the news after

the incident. As the State suggests, a reasonable interpretation of the

cross-examination here implied the manager gave one description at the

crime scene, and another after watching the news.

The State concedes that prior consistent statements used for

rehabilitation must have been made before the existence of a fact

indicating bias, but argues the attack on the manager’s description of the

defendant encompassed the surveillance video he watched before he made

the prior consistent statement, and therefore does not violate the rule. The

manager’s prior consistent statement in his deposition rebutted the

implication that he changed his description of the defendant after

watching the news and surveillance video. The trial court did not abuse

its discretion in admitting his prior consistent statement. See, e.g., Griffith

v. State, 762 So. 2d 1022, 1023 (Fla. 3d DCA 2000) (holding prior

consistent statement was admissible to rebut implication of fabrication).

In short, the court did not err in admitting the manager’s prior

consistent statement.

11

• Issue Three: The Admission of the Childhood Friend’s

Identification

The defendant argues the trial court erred in admitting his childhood

friend’s identification of him in a picture from the surveillance video

because it was inadmissible hearsay. The State concedes error and we

agree but find the error harmless.

The defendant argues the error was not harmless because: 1) the

childhood friend was the only other witness to identify the defendant pretrial; 2) the manager did not pay attention to the defendant because of

other customers and failed to tell law enforcement of the defendant’s facial

tattoos; 3) the fingerprints lifted off the cooler could have been there earlier

because the door had not been cleaned for six days; and 4) the State relied

on the childhood friend’s identification in closing arguments.

The defendant’s childhood friend testified she knew the defendant since

elementary school and dated him for several years. She identified him in

a still photograph from the surveillance video and again at trial. And she

was not the only one to identify him.

In short, for the reasons expressed below, the error was harmless.

• Issue Four: Harmless Error

“[U]nder the harmless error test, the State must prove beyond a

reasonable doubt that the error complained of did not contribute to the

verdict or, alternatively stated, that there is no reasonable possibility that

the error contributed to the conviction.” Vilseis v. State, 117 So. 3d 867,

871 (Fla. 4th DCA 2013) (quoting Symonette v. State, 100 So. 3d 180, 184

(Fla. 4th DCA 2012)). “The focus is on the effect of the error on the trierof-fact. The question is whether there is a reasonable possibility that the

error affected the verdict.” State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.

1986).

“Application of the test requires an examination of the entire record by

the appellate court including a close examination of the permissible

evidence on which the jury could have legitimately relied, and in addition

an even closer examination of the impermissible evidence which might

have possibly influenced the jury verdict.” Id. at 1135.

For the following reasons, any error as to each of the three issues was

harmless.

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1. The Motion to Suppress

We find no error in the court ruling on the motion to suppress. Even if

error occurred, we find it harmless.

The manager testified he knew the defendant as a regular customer.

Even prior to the pre-trial identification, the manager told Detective R. he

saw the defendant and his girlfriend in the store several times before. The

surveillance video was played for the jury, which showed the defendant’s

face. And, the jury asked to replay the surveillance video during

deliberations. See Ibar v. State, 938 So. 2d 451, 463 (Fla. 2006) (finding

the trial court’s admission of identification statements was harmless error

where “there were other witnesses and items of evidence from which the

jury could conclude that [the defendant] was one of the perpetrators of this

triple homicide,” including a videotape surveillance showed to the jury

where the defendant’s face was visible). Any error was therefore harmless.

DiGuilio, 491 So. 2d at 1139.

2. The Manager’s Prior Consistent Statement

Similarly, we found no error in the admission of the manager’s prior

consistent statement. Nevertheless, if any error existed, we find it

harmless.

The record does not reflect the jury relied on the manager’s deposition

statement describing the defendant’s facial tattoos. At trial, the manager

testified the defendant had tattoos. He also explained he told law

enforcement at the crime scene the defendant had tattoos, although it was

not reflected in the police reports. He identified the defendant in a

photographic lineup. And, the defendant’s prints were found on the cooler

in the precise location where the surveillance video showed that he opened

the cooler door.

Admission of the prior consistent statement was harmless. Id.

3. Childhood Friend’s Identification

Although the State concedes error on this issue and we agree, we find

any error harmless.

The manager recognized the defendant as a regular customer and

identified him both in the police lineup and in court. Another employee

also described the defendant. While the manager did not see the shooting,

he saw the defendant running away in the surveillance video.

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The defendant’s face was visible in the surveillance video, which shows

him going to the cooler and touching it precisely where the latent print

examiner lifted the prints and matched them to the defendant. The

surveillance video was played for the jury. See Ibar, 938 So. 2d at 463.

Although the State relied on the childhood friend’s testimony in closing,

none of the jury questions requested review of her testimony again. The

jury requested to re-watch only the surveillance video. There was no

reasonable possibility that the error affected the verdict. DiGuilio, 491 So.

2d at 1139.

• Other Issues

We find the other issues (the denial of defendant’s request for special

jury instructions on eye witness identification and expert witness

testimony, the admission of the victim’s friend’s statement to law

enforcement, and the expert’s testimony concerning the number of times

he has been qualified as an expert) without merit and not warranting

further discussion.

Affirmed.