Constant v. State – 3rd DCA Remands Single-Witness Case Back for Trial

Fort Lauderdale criminal defense lawyers have long known that eyewitness identifications in criminal cases are fraught with all kinds of potential problems. Setting aside those who have motivation to lie, memory errors are a major issue when someone’s reputation and future is at stake.
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Extensive research by legal and psychology scholars has made it clear that memory is fallible, subject to suggestion, bias and other outside factors.

So when a criminal case is based in large part on the foundation of eyewitness testimony, defense lawyers have an obligation to carefully question these accounts. In the recent case of Constant v. Florida, Florida’s Third District Court of Appeal reversed a robbery conviction and remanded a case for a new trial, following evidence that there were prosecutorial errors in the single-eyewitness case.

According to court records, a robbery occurred in April 2008 at a retail sporting goods store. There was only one witness to this crime, a store manager who briefly caught a glimpse of the assailant when he took off the rag that covered his face. The armed suspect demanded the register contents and safe, as well as two pair of size-12 shoes.

Video surveillance at the store captured a few partial images of the suspect’s body, but there were no images of his face caught on film. Additionally, the suspect had left no trace of fingerprint evidence.

An investigator would 11 days later meet with the store manager and show her an array of six photographs. One of those was a picture of the defendant. The store manager pointed to the defendant and named him the robber.

During the voir dire (jury selection) portion of trial, the prosecutor asked jurors if they would be willing to convict based on the testimony of just one witness. Defense objected, prompting the prosecutor to reply – incorrectly – that there would be more than one witness able to identify the defendant.

At trial, the store manager told the jury she was “100 percent sure” the defendant was the man who had robbed the store that day. The store manager then answered in the affirmative when asked whether she could identify a person by his shoe size, and proceeded to testify the defendant appeared to wear a size nine or ten. However, following some additional leading questions by the prosecutor, she indicated the defendant likely wore an eleven or twelve.

Later, in closing arguments, the prosecutor stated to the jury they had “promised” to convict the defendant based on the testimony of a single witness, so long as they found that witness to be credible.

The defendant was convicted.

Upon appeal, the appellate court indicated that the error during voir dire and the shoe size comments in and of themselves wouldn’t necessarily be persuasive enough to warrant a new trial. However, those elements taken together with the statements made during closing arguments were troubling. In combination with a lack of physical evidence, the prosecutor’s improper comments were possibly harmful, and therefore, a new trial was necessary.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:
Constant v. Florida, June 4, 2014, Florida’s Third District Court of Appeal
More Blog Entries:
Florida Supreme Court Clarifies Theft Charges, April 29, 2014, Fort Lauderdale Criminal Defense Lawyer Blog