Opposition Brief — Simmons v. Florida (No. 06-812)

No. 06-812

IN THE SUPREME COURT OF THE UNITED STATES

ERIC SIMMONS,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION ©

BILL McCOLLUM

ATTORNEY GENERAL

STEPHEN D. AKE

COUNSEL OF RECORD

Assistant Attorney General

Florida Bar Number 0014087

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

(813) 287-7910

COUNSEL FOR RESPONDENT

es en

CAPITAL CASE

QUESTIONS PRESENTED

REASON I

RESPONDENT SUBMITS THAT THIS COURT LACKS

JURISDICTION TO CONSIDER THE DECISION ISSUED BY

THE FLORIDA SUPREME COURT IN SIMMONS V. STATE,

934 SO. 2Dd 1100 (FLA. 2006).

REASON II

THE FLORIDA SUPREME COURT’S DECISION FINDING

THAT PETITIONER VOLUNTARILY GAVE A STATEMENT

TO LAW ENFORCEMENT OFFICERS DOES NOT

CONFLICT WITH ANY DECISION FROM THIS COURT.

REASON III

PETITIONER’S REQUEST FOR THIS COURT TOISSUE AN

ADVISORY OPINION IS WITHOUT MERIT.

REASON IV

THIS COURT SHOULD DENY CERTIORARI REVIEW TO

CONSIDER PETITIONER’S CLAIM REGARDING THE

FLORIDA SUPREME COURT’S REVIEW OF THE

SUFFICIENCY OF THE EVIDENCE.

REASON V

THE FLORIDA SUPREME COURT PROPERLY

CONSIDERED THIS COURT’S DECISION IN NEIL V.

BIGGERS, 409 U.S. 188 (1972), WHEN ANALYZING

PETITIONER’S CLAIM CONCERNING THE

EYEWITNESSES’ IDENTIFICATION OF THE VICTIM AND

OF PETITIONER’S AUTOMOBILE.

REASONS VI AND VII

THIS COURT SHOULD REJECT PETITIONER’S

SUGGESTION TO ADOPT A BRIGHT LINE RULE ON THE

ADMISSIBILITY OF EXPERT WITNESS’ TESTIMONY

CONCERNING THE RELIABILITY OF EYEWITNESS

IDENTIFICATION. |

REASON VIII

THE FLORIDA SUPREME COURT PROPERLY APPLIED

THIS COURT’S APPLICABLE LAW WHEN UPHOLDING

THE TRIAL COURT’S DENIAL OF PETITIONER’S MOTION

TO SUPPRESS EVIDENCE SEIZED FROM HIS VEHICLE.

REASON IX

PETITIONER HAS NOT PRESENTED A FEDERAL

CONSTITUTIONAL QUESTION FOR THIS COURT’S

REVIEW BASED ON HIS CLAIM THAT THE STATE

COURT LACKED VENUE.

REASON X

THIS COURT SHOULD DENY CERTIORARI REVIEW TO

CONSIDER PETITIONER’S ARGUMENT REGARDING HIS

ALLEGED WRONGFUL CONVICTION.

ll

TABLE OF CONTENTS

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TABLE OF CONTENTS ....: PEE CEN S Pere rer. ee ill

SE NE ARIE 0 0 bccn ened eeewsses tees vi

EE 6b ch oho does ees oa eRe E Oe OER l

JURISDICTION OF THE SUPREME COURT .......... ]

CONSTITUTIONAL AND STATUTORY PROVISIONS . 2

STATEMENT OF THE CASE AND FACTS............ 2

REASONS FOR DENYING THE WRIT .............. 12

EE oa oct a abe i ekw ees seein asus es 12

RESPONDENT SUBMITS THAT THIS

COURT LACKS JURISDICTION TO

CONSIDER THE DECISION ISSUED BY THE

FLORIDA SUPREME COURT IN SIMMONS

Vi. STATE, 934 SO. 2D 1100 (FLA. 2006).

7, 8S RRSP near giartieey pert BE ROD er unine: 5S terete oe 13

THE FLORIDA SUPREME COURT’S

DECISION FINDING THAT PETITIONER

VOLUNTARILY GAVE A STATEMENT TO

LAW ENFORCEMENT OFFICERS DOES NOT

CONFLICT WITH ANY DECISION FROM

THIS COURT.

il

REASON III

REASON IV

REASON V

PETITIONER’S REQUEST FOR THIS COURT

TO ISSUE AN ADVISORY OPINION IS

WITHOUT MERIT.

THIS COURT SHOULD DENY CERTIORARI

REVIEW TO CONSIDER PETITIONER’S ©

CLAIM REGARDING THE FLORIDA

SUPREME COURT’S REVIEW OF THE

SUFFICIENCY OF THE EVIDENCE.

THE FLORIDA SUPREME COURT

PROPERLY CONSIDERED THIS COURT’S

DECISION IN NEIL V. BIGGERS, 409 U.S. 188

(1972), WHEN ANALYZING PETITIONER’S

CLAIM CONCERNING THE

EYEWITNESSES’ IDENTIFICATION OF THE

VICTIM AND OF PETITIONER’S

AUTOMOBILE.

Tt WEI VEN 6c bie ik acedenpekceescewes

THIS COURT SHOULD REJECT

PETITIONER’S SUGGESTION TO ADOPT A

BRIGHT LINE RULE ON THE

ADMISSIBILITY OF EXPERT WITNESS’

TESTIMONY CONCERNING THE

RELIABILITY OF EYEWITNESS

IDENTIFICATION.

iV

a 2 2 2 oe oe oe oe ee ee ee ee ee a ee ee ee a ee oe oe ek

$@ eserves ee@e14 Oeoegpe@eneecaene 6 ¢ & G0 6 6 €

e 2 2 2 2 #0 ' 8-8: 6 42 6 2 eet Ce Se Oo Oe 6 eB SS tO?

, ae

TT PHP 60 i 64 4 Oss a eed aaa ere ears 25

THE FLORIDA SUPREME COURF

PROPERLY APPLIED THIS COURT’S

APPLICABLE LAW WHEN UPHOLDING

THE TRIAL COURT’S DENIAL OF

PETITIONER’S MOTION TO SUPPRESS

EVIDENCE SEIZED FROM HIS VEHICLE.

ESE Sf CCAR GEN RONG CRETE ONE ETD OHEO SES 26

PETITIONER HAS NOT PRESENTED A

FEDERAL CONSTITUTIONAL QUESTION

FOR THIS COURT’S REVIEW BASED ON

HIS CLAIM THAT THE STATE COURT

LACKED VENUE.

IE UR ep G 6 ke aes Kae dah e esac kay takes 27

THIS COURT SHOULD DENY CERTIORARI

REVIEW TO CONSIDER PETITIONER’S

ARGUMENT REGARDING HIS ALLEGED

WRONGFUL CONVICTION.

AE 6s vaseline ce ey css oe ANCE ER OE WES OND 28

TABLE OF AUTHORITIES

Cases:

Ashcraft v. Tennessee,

Fee Uh PPD oo 0 doe Oe eke hbk es a aaa wanes 18,19

Bradley v. State,

787 So. 2d Pa re Es 6k be Kaeo eV eck Rees eames 22

Carroll v. United States,

aT A CA oF a Na lev kee ed 25

Chambers v. Maroney, me

FO UD. MEF on vcs vcnns oes ak sik ee iaretee i ae ais 25

Chambers v. Mississippi,

a Pe Ea So ek ee eae 24

Franks v. Delaware,

ae Ry A CR io kes baw ose u eet Ven eweneses 25

Hayes v. Florida,

Fee ee OE es weds Fee he wees eens weas 15,17

In re Winship,

Se Sa ETE Fk ko Shwe eta e caeen ORES we eee ye

Jackson v. Virginia,

Oe Sa Ot CE cs oi ed oe a ee eee 22

Jefferson v. City of Tarrant,

Fee Oe as TE oa Ses Sik ko ae Ree eS 12

Johnson v. State,

Soe ee CP a nn 85S is eo oe ee es I es 24

Vi

Kaupp v. Texas,

Tee Ge GED oo ds Ga ee ee ee 15-17

Layne & Bowler Cor ~. Western Well Works, Inc.,

Ot Bs See Lee. ve ewawek sedan eee 21

Neil v. Biggers,

te SB RAPT vc bc ed Cie s Geaeek kee aeda eee 23

Rice v. Sioux City Mem’] Park Cemetery Inc.,

ee as Pe bo 0k 05 a 21

—Rock v. Arkansas,

ED Gia OPN EED b's 0305 6 Ceres eee 24

Rockford Life Ins. Co. v. Illinois Dep’t of Revenue,

Se Wis Oe COE 0d + ok oe ba are eee 14

Simmons v. State,

934 So. 2d 1100 (Fla. 2006)....... 16, 17, 20-22, 24, 26, 27

United States v. Johnston,

Fae Ace Ao v8n 69 00 ieee eee eo 2,23

United States v. Mendenhall,

SA6 US. FOO CT on 64 0a oe 9K ob ee 16

Florida Rules:

Fis. R. Hee. Pe: 5 Ss i a ee eee 13

Other Authonties:

A, 3.3 16: Fee CO os ss eee eee 26

Vil

US.S.C. Rule tO .......: Nia 6 a wah as-9 H¥ 0 09 14,18

eines babe e ed yececereeseves 20

Unites States Constitution:

EE LS Ee 12, 13

- Vill

No. 06-812

IN THE SUPREME COURT OF THE UNITED STATES

ERIC SIMMONS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF FLORIDA

OPINION BELOW

The Florida Supreme Court’s opinion in the instant case

is reported as Simmons v. State, 934 So. 2d 1100 (Fla. 2006),

and a copy of the opinion is contained in the appendix to this

response (App. A).

JURISDICTION OF THE SUPREME COURT

Respondent submits that this Court lacks jurisdiction to

review the instant case because the decision is not a “final

judgment” by the highest court of a State. See 28 U.S.C. §

1257(a) (establishing that certiorari review is available only with

respect to “[f]inal judgments or decrees rendered by the highest

court of a State in which a decision could be had”); see also

Jefferson v. City of Tarrant, 522 U.S. 75 (1997). As will be

discussed in greater detail in the Questions Presented section,

infra, Respondent submits that the Florida Supreme Court’s -

decision is not final because the court has yet to rule on

Petitioner’s Motion for Clarification and Request for Written

1

Opinion or issue its mandate.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Respondent accepts the Petitioner’s statement of the

constitutional and statutory provisions involved.

STATEMENT OF THE CASE AND FACTS

Petitioner’s statement is argumentative, conclusory, and

factually inaccurate. Respondent submits that the factual

recitation contained in the Florida Supreme Court’s opinion

provides an accurate portrayal of the facts as adduced at

Petitioner’s trial:

The charges against appellant, Eric

Simmons, resulted from the kidnapping, sexual

battery, and stabbing and beating of Deborah

Tressler, who was found dead in a wooded area

in Sorrento, Florida. Simmons was tried and

found guilty of kidnapping, sexual battery using

force likely to cause serious injury, and first-

degree murder. The jury unanimously

recommended death as the penalty for the

murder. The trial court sentenced Simmons to

death on the charge of first-degree murder and

life in prison for each of the kidnapping and

sexual battery charges respectively.

Prosecution Evidence

The evidence presented at trial indicated

that on December 3, 2001, at approximately

11:30a.m., John Conley, a Lake County Sheriff's

Office (LCSO) deputy, discovered the body of

Tressler in a Jarge wooded area commonly used

for illegal dumping. The body was located some

270 feet from the main road. Cmme scene

)

~~

technician Theodore Cushing took pictures of the

body, performed a sketch of the area, and found

five tire tracks near the body. The crime scene

technicians took plaster cast impressions of the

three tracks with the most detail for comparison

purposes. Mr. Cushing noticed that the tire

tracks indicated that a car made a three-point turn

close to the body. All-terrain vehicle tracks were

present closer to the body, but they appeared

older and deteriorated.

The medical examiner, Dr: Sam Gulino,

observed the victim and the surroundings at the

scene on December 3, 2001, with the victim lying

- on her left side with her right arm over her face.

Dr. Gulino estimated the time of death was

twenty-four to forty-eight hours before the body

was discovered.

Dr. Gulino performed an autopsy, which

revealed numerous injuries. Tressler suffered

some ten lacerations on her head, as well as

numerous other lacerations and scrapes on her

scalp and face. There was a very large fracture

on the right side of her head, and her skull was

broken into multiple small pieces that fell apart

when the scalp was opened. Dr. Gulino opined

that this injury and the injuries to her brain

resulted in shock and ultimately Tressler’s death.

There was another fracture that extended along

the base of the skull, resulting from a high-energy

impact; bleeding around the brain; and bruises in

the brain tissue where the fractured pieces of

skull had cut the brain. There were numerous

stab wounds on the neck, a long cut across the

front and right portions of the neck, and other

bruises and cuts. There was little bleeding from

these injuries, indicating that the victim was

3

already dead or in shock at the time of the

injuries. The victim also suffered a stab wound

in the nght lower part of her abdomen that

extended into her abdominal cavity and probably

occurred after she received the head injury.

There were also injuries to her anus with bruising

on the right buttock extending into the anus, and

the wall of the rectum was lacerated. These

injuries were inflicted before death. Dr. Gulino

opined that these injuries would be painful and

not the result of consensual anal intercourse. The

victim suffered numerous defensive wounds on

her forearms and hands. There was also a t-

shaped laceration on the scalp and an injury at the

base of her right index finger that was patterned,

as if a specific type of object, like threads on a

pipe, had caused it. Dr. Gulino opined that the

attack did not occur at the exact spot where

Tressler was found because of the lack of blood

and disruption to the area, but stated that the

position of Tressler’s body was consistent with

an attack occurring in that area.

On December 4, 2001, Robert Bedgood,

acrime scene technician, collected evidence from

Tressler’s body during the autopsy. Dr. Jerry

Hogsette testified that, based on the temperature

in the area of Tressler’s body and _ the

development of the insect larvae taken from

Tressler’s body, Tressler had been killed between

midnight on December 1, 2001, and early Sunday

morning, December 2, 2001.

After identifying the body as Tressler’s,

crime scene technicians went to the trailer where

Tressler lived and the laundromat where she

worked to conduct Lumino! testing. They found

Tressler’s purse at the laundromat and located a

4

birthday list containing the names of Simmons’

relatives. There was no evidence of violence in

either place.

Andrew Montz testified that late on the

night of December 1, 2001, he was at the Circle

K convenience store at the intersection of State

Road 44 and County Road 437 in Lake County.

Mr. Montz saw a white four-door car heading

northbound on 437, stopping at the traffic light

very slowly, when a woman opeed the passenger

door and screamed, “Somebody help me.

Somebody please help me.” The driver pulled

the woman back into the car and ran the red light

quickly. Mr. Montz stated that the woman was

wearing a white T-shirt or pajama-type top. He

was not able to see the driver and described the

car as a Chevy Corsica/Ford Taurus-type car with

a dent on the passenger side, black and silver trim

on the door panel, and a flag hanging from the

window. After viewing a videotape of a white

1991 Ford Taurus owned by Simmons a year

later, Mr. Montz identified it as being the car he

saw on December 1. Mr. Montz initially told

lead Detective Stewart Perdue that the car had

spoked rims, but after viewing spoked rims at an

auto parts store, he concluded that the mms on the

car he saw were not spoked.

Sherri Renfro testified that she was at the

same Circle K as Montz between 11:30 and

11:40 p.m. with her sister-in-law’s boyfriend,

Shane Lolito. She also saw a white car slowly

approach the red light, the passenger door open,

and a woman yell for help while looking directly

at Ms. Renfro. Ms. Renfro yelled at the driver to

stop, but he did not, and Ms. Rentro got into her

van and chased after the car. She traveled in

excess of the speed limit, but was unable to get

close to the car and eventuallytest track of it.

Ms. Renfro thought that the car was a Chevy

Corsica, but admmittedthat she “[did not] really

know [her] cars too well.” She recalled that the

car had a patriotic bumper sticker in the rear

window and a flag hanging from the back

passenger window. She testified that there was a

large spotlight on the side of the Circle K

building that illuminated the surrounding area

wel]. Ms. Renfro subsequently identified

Simmons’ white Ford Taurus as the car she saw

at the intersection, and she recognized the

interior, the bumper sticker, and the flag on the

car. Ms. Renfro identified Tressler as the woman

in the car when shown a photograph of her.

Jose Rodriguez testified that he knew

Tressler from the laundromat, he often saw

Simmons and Tressler together drinking, and he

was familiar with Simmons’ car. Mr. Rodriguez

saw Simmons with Tressler at the laundromat on

the night of December 1, 2001. When he arrived

at the laundromat, he knocked on the glass

window to get Simmons’ attention and asked him

to come outside. While Simmons was exiting,

Mr. Rodriguez got Tressler’s attention and asked

if she was okay; she replied that she was. Mr.

Rodriguez spoke with Simmons for a few

minutes and then talked to his own girlfnend on

the pay phone outside. When he finished,

Simmons and Tressler were still inside the closed

laundromat.

Mr. Rodriguez was arrested the next day

on unrelated charges, and on December 5, 2001,

police officers showed Mr. Rodmnguez a

photopack with about thirty-five pictures in it,

6

but he was unable to identify any as Tressler’s

boyfriend. However, Mr. Rodriguez picked the

picture that looked most like Simmons and he

drew additional characteristics similarto those of

Simmons. On December 7, Mr. Rodriguez

positively identified a photograph of Simmons as

Tressler’s boyfnend.

Detective Perdue testified that he and

other police officers went to Simmons’ parents’

home after confirming that Simmons owned a

white 1991 Ford Taurus. Detective Perdue and

Detective Kenneth Adams approached Simmons

and asked him to walk to a group of trees so they

could talk. There were some fifteen other police

officers at the scene as well as a helicopter flying

overhead. Simmons acknowledged that he knew

Tressler was dead, and the detectives asked if

Simmons would come to the sheriff's office to

talk. Simmons consented, and the detectives

transported him to the sheriffs office in the back

of a police cruiser. The detectives handcuffed

Simmons for their protection pursuant to their

standard practice, and Simmons did not object.

Detectives Perdue and Adams removed the

handcuffs upon arrival at the office, and

interviewed Simmons in a room equipped with

audio and video capabilities, although the

videotape was allowed to run out after two hours.

Simmons waived his Miranda rights and

stated that he was friends with Tressler and had

tried to help her improve her living conditions.

Simmons explained to Detective Perdue that on

December 1, 2001, he and Tressler had been

watching the Florida-Tennessee football game at

his apartment in Mount Dora. The reception was

bad, so Tressler asked him to take her to the

laundromat or her trailer so she could watch the

game. He took her to the Jaundromat and then

drove home because Tressler and he were

supposed to go to work together early the next

morning for his father’s landscaping business.

He stated that he had engaged in sexual

intercourse with Tressler on one occasion

approximately two weeks before the interview,

even though Simmons’ semen was found in

Tressler’s vaginal washings during her autopsy.

During a break in the interview, the detectives

learned that blood had been found in Simmons’

car. After the detectives informed Simmons of

this, he stated, “Well, } guess if you found blood

in my car, I must have did it.”

Terrell Kingery, a crime lab analyst with

the Florida Department of Law Enforcement

(FDLE), examined the plaster tire casts from the

scene of the crime and compared them to the tires

on Simmons’ car. The rear tires, which were

different brands, were consistent with the three

plaster casts. The dimension and general

condition of the rear tires were consistent with

two of the three casts.

Crime scene technician Ronald Shirley

testified that when he performed a presumptive

test for blood on a stain on the passenger door of

Simmons’ car, he obtained a positive result.

Luminol testing was positive for blood on the

area around the passenger seat cushion, the carpet

below the passenger seat in the front and back,

and especially the area of the passenger seat

where one sits. Mr. Shirley noted that there were

containers of partially consumed cleaning

materials in the car. Technicians also cut the

fabric off the seat cover and noted a large stain on

_

the cushion itself.

Bnan Sloan, a forensic DNA analyst,

performed a mitochondnal DNA (mtDNA)

sequence on the cushion stain and testified that,

in his professional opinion, the stain on the

cushion was blood. He testified that mtDNA is

inherited maternally, and the mitochondrial

genome is 16,500 pairs long. Most of these pairs

are very similar between individuals, but

- approximately 610 bases are highly variable

between individuals, and these variable bases can

be used to differentiate between people. mtDNA

testing differs from the Short Tandem Repeat

(STR) technique for DNA profiling because the

STR technique is specific to the DNA in the

nucleus, or chromosomal DNA. Mr. Sloan

testified that mtDNA is the better technique to

use on degraded samples because the plasmid

circular DNA in mitochondria have thousands of

copies in a single cell.

Mr. Sloan compared the mtDNA

extracted from the seat cushion to that of Lee

Daubanschmide, Tressler’s mother; determined

that each had an anomaly in the same place; and

concluded that the two DNA sequences were

consistent. After noting the consistency, Mr.

Sloan entered the sequence into the FBI database

of 4,839 contributors to check for matches, and

concluded that the sequence had never been seen

in that group. Mr. Sloan also stated that mtDNA

is present in several types of human biological

fluid or material, such as bones, hair, saliva,

semen, diarrhea, sweat, and menstruation. He

noted that he did not run statistical calculations to

determine the ninety-five percent confidence

interval as had Dr. Rick Staub, the director of the

——

lab. Dr. Staub had obtained an upper confidence

limit of one in 1600 individuals, but was unable

to testify at trial.

Shawn Johnson, a crime _ laboratory

analyst with the FDLE, testified that he

performed a presumptive chemical test on the

cushion stain, which was positive for blood. He

then took three different cuttings from three

different areas, combined them into one sample,

but did not get any DNA results. Mr. Johnson

testified that the lack of DNA results indicated

that there was degradation of the DNA. Mr.

Johnson swabbed the front passenger door jamb

of Simmons’ car and obtained a DNA profile that

matched Tressler’s. Mr. Johnson also matched

Tressler’s DNA to other stains on the car trim.

Defense Evidence

The defense called a number of witnesses

during its case. Stuart James, a defense witness

who is an expert in blood stain pattern analysis,

examined blood spatter in photographs-of the

doorjamb of Simmons’ car and concluded that it

was a limited amount of staining but that it was

consistent with the size range found in beatings,

stabbings, and sometimes gunshots.

Dr. Neal Haskell, a forensic entomologist,

testified that he could not determine the time of

Tressler’s death from the insect specimens

collected by the LCSO. He also could not

determine whether Dr. Hogsette’s opinion

regarding the time of death was correct, but he

opined that some of Dr. Hogsette’s conclusions.

were faulty and that Dr. Hogsette was not

qualified as a forensic entomologist.

Dr. Terry Melton, an expert in mtDNA

analysis, testified that the State’s lab results

10

regarding the match with the mtDNA were

correct, but its statistical analysis that the mtDNA

sequence had never been seen in the FBI database

was incorrect. Dr. Melton stated that the State’s

lab did a search of the DNA bases only on a

portion of the DNA they obtained. In Dr.

Melton’s lab, they compare all 783 of the DNA

bases to the known DNA bases. When Dr.

Melton ran the data in the database according to

her lab’s methods, she found a common type

sequence in 105 of the 4839 people in the

database.

Dr. Wilber Frank, a veterinarian and local

resident, testified that he encountered a white

four-door car driving very slowly at the

intersection of State Road 44 and Seminole

Springs Road at about 11 a.m. on December 2,

2001, near the area where the victim’s body was

found. The driver appeared to be an older white

male.

At the conclusion of the trial’s guilt

phase, the jury found Simmons guilty of

kidnapping, sexual battery using force likely to

cause serious injury, and murder in the first

degree, all as charged in the indictment.

Simmons _ v. State, 934 So. 2d 1100, 1105-09 (Fla. 2006)

(footnotes omitted). Based on this evidence, the jury convicted

Petitioner of kidnapping, sexual battery, and first-degree murder.

The jury unanimously recommended the death penalty and the

trial court sentenced Petitioner to death for the murder of

Deborah Tressler.

On May 11, 2006, the Florida Supreme Court affirmed

Petitioner’s convictions and sentence. Petitioner filed a Motion

for Rehearing, which the Flonda Supreme Court denied. On July

19, 2006, Petitioner filed a Motion for Clarification and Request

11

for Written Opinion. _On August 11, 2006, Petitioner filed a

Motion to Stay Issuance of Mandate. As of the date of this

filing, the Florida Supreme Court has not ruled on the Motion for

Clarification and Request for Wntten Opinion and has yet to

issue its Mandate. :

REASONS FOR DENYING THE WRIT

REASON I.

RESPONDENT SUBMITS THAT THIS

COURT LACKS JURISDICTION TO

CONSIDER THE DECISION ISSUED BY

THE FLORIDA SUPREME COURT IN

SIMMONS V. STATE, 934 SO. 2D 1100

(FLA. 2006).

The jurisdiction of this Court to review state court

decisions is governed by 28 U.S.C. § 1257(a). This section

provides, in pertinent part, that “[f]inal judgments or decrees

rendered by the highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court by wnt of

certiorari. .. ” 28 U.S.C. § 1257(a). This Court stated in

Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997):

To be reviewable by this Court, a state-court

judgment must be final “in two senses: it must be

subject to no further review or correction in any

other state tribunal; it must also be final as an

effective determination of the litigation and not

of merely interlocutory or intermediate steps

therein. It must be the final word of a final

court.”” Market Street R. Co. v. Railroad Comm'n

of Cal., 324 U.S. 548, 551, 89 L. Ed. 1171, 65 S.

Ct. 770 (1945). As we have recognized, the

finality rule “is not one of those technicalities to

12

be easily scorned. It is an important factor in the

smooth working of our federal system.” Radio

Station WOW, Inc. v. Johnson, 326 U.S. 120,

124, 89 L. Ed. 2092, 65 S. Ct. 1475 (1945).

In the instant case, the state court judgment is still subject

to further review by the Florida Supreme Court given the

motions that are still pending in the state court. Typically, the

Florida Supreme Court issues its mandate 15 days after the

denial of a motion for rehearing. See Fla. R. App. P. 9.340(a).

However, if a timely motion for rehearing or clarification is filed,

the time for issuance of the mandate shall be extended until 15

days after rendition of the order denying the motion, or, if

granted, until 15 days after the cause has been fully determined.

Fla. R. App. P. 9.340(b). Here, Petitioner filed a Motion for

Clarification prior to the issuance of a mandate. This motion, as

well as Petitioner’s subsequent Motion to Stay Issuance of

Mandate, are still pending in the Florida Supreme Court.

Because the state court may subject this case to further review,

Respondent submits that the decision is not final for the purposes

of establishing jurisdiction with this Court pursuant to 28 U.S.C.

§ 1257(a). Accordingly, this Court should deny the instant

petition.

REASON I

THE FLORIDA SUPREME COURT’S

DECISION FINDING THAT PETITIONER

VOLUNTARILY GAVE ASTATEMENT TO

LAW ENFORCEMENT OFFICERS DOES

NOT CONFLICT WITH ANY DECISION

FROM THIS COURT.

Petitioner urges this Honorable Court to exercise its

certiorari jurisdiction to consider the Florida Supreme Court’s

decision affirming the demal of his motion to suppress.

13

Petitioner asserts that the Florida Supreme Court misapplied

applicable law in holding that Petitioner was not under arrest

when he voluntarily decided to accompany law enforcement

officers to the police station. As will be seen, Petitioner has

failed to demonstrate any compelling reasons for this Court to

exercise its discretionary certiorari jurisdiction.

Rule 10 of this Court’s rules provides the relevant

considerations in determining the propriety of certiorari review:

Review on a writ of certiorari is not a matter of right,

but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling reasons.

The following, although neither controlling nor fully

measuring the Court’s discretion, indicate the character

of the reasons the Court considers:

(b) a state court of last resort has decided an

important federal question in a way that conflicts with

the decision of another state court of last resort or of a

United States court of appeals;

(c) a state court or a United States court of appeals

has decided an important question of federal law that

has not been, but should be, settled by this Court, or has

decided an important federal question in a way that

conflicts with relevant decisions of this Court.

This case involves neither conflict nor unsettled federal

law. Although the failure to meet any of these considerations is

not controlling, this Court has noted that cases which have not

divided the federal or state courts or presented important,

unsettled questions of federal law do not usually merit certioran

review. Rockford Life Ins. Co. v. Illinois Department of

Revenue, 482 U.S. 182, 184 n.3 (1987).

Petitioner asserts that his statements and confession to

law enforcement officers were admitted in violation of his Fourth

Amendment nghts because he was illegally seized without

14 ‘

probable cause. Petitioner asserts that the Florida Supreme Court

incorrectly distinguished the instant case from Hayes v. Florida,

470 U.S. 811 (1985), and further claims that his case is factually

analogous to Kaupp v. Texas, 538 U.S. 626 (2003). Contrary to

Petitioner’s assertions, the Florida Supreme Court properly

distinguished the instant case from Hayes and found that

Petitioner voluntarily accompanied law enforcement officers to

the police station to give a statement.

Petitioner argued to the Florida Supreme Court that his

case was similar to Hayes. In Hayes, this Court held that law

enforcement violated the defendant’s Fourth Amendment nights

when they, without probable cause or a warrant, involuntarily

removed the defendant from his home and transported him to the

station where he was briefly detained for the purposes of

obtaining fingerprints. This Court found that such involuntary

transport to a police station for questioning is “sufficiently like

arrest to invoke the traditional rule that arrests may

_constitutionally be made only on probable cause.” Hayes, 470

U.S. at 816. As the Florida Supreme Court properly noted when

distinguishing Hayes, the unrebutted testimony at the motion to

suppress hearing clearly established that Petitioner voluntarily

consented to being transported to the police station and further

voluntarily gave a statement to detectives.

Petitioner argues that given the totality of the

circumstances surrounding his encounter, he merely submitted to

the claim of legal authority. In Kaupp, this Court noted that a

“seizure of the person within the meaning of the Fourth and

Fourteenth Amendments occurs when, taking into account all of

the circumstances surrounding the encounter, the police conduct

would have communicated to a reasonable person that he was not

at liberty to ignore the police presence and go about his

business.” Kaupp, 538 U.S. at 629. In Kaupp, this Court found

that the adolescent defendant did not have any options but to

submit to the authonty of the officers when at least three officers

woke him up in his bedroom at three in the morning with a

flashlight and stated that “we need to go and talk.” The officers

15

removed the defendant in handcuffs, without shoes, dressed only

in his underwear in January, and drove him to the scene of the

crime and then to the sheriff's office for questioning. Id. at 628,

631.

Unlike the situation in Kaupp, Petitioner was approached

by two unarmed, plainclothed detectives on his family’s

property. Although Petitioner references the lead detective’s

testimony that a “thundering herd” of officers arrived at the large

rural property, including a helicopter overhead, the testimony

from the motion to suppress hearing established that these ten to

fifteen officers remained outside the property and only two

detectives approached Petitioner as he emerged from the woods

on his all-terrain vehicle. As the Flonda Supreme Court properly

found, “the record shows that most of these officers were not

directly involved in any confrontation with Simmons or the

conversation between Simmons, Detective Adams, and Detective

Purdue.” Simmons v. State, 934 So. 2d 1100, 1114 (Fla. 2006).

As Justice Stewart noted in his opinion in United States

v. Mendenhal!, 446 U.S. 544, 554 (1980), there are several

“Te]xamples of circumstances that might indicate a seizure, even

where the person did not attempt to leave,” including “the

threatening presence of several officers, the display of a weapon

by an officer, some physical touching of the person of the citizen,

or the use of language or tone of voice indicating that compliance

with the officer’s request might be compelled.” In the instant

case, although there were a large number of officers at

Petitioner’s parents’ property, only two unarmed, plainclothes

detectives were closely involved with Petitioner and the

circumstances clearly establish that he was free to refuse_to

accompany them to the station. As the state trial court noted

when denying Petitioner’s motion to suppress, the detectives did

not use threatening or commanding language and the other

officers were not encircling Appeliant or drawing their guns or

behaving in any intimidating manner. See Appendix B at B10.

Although Petitioner was briefly handcuffed while being

transported to the police station for questioning, the officers

16

informed him that it was solely for officers’ safety, and removed

the handcuffs once they arrived at the police station. Prior to

conducting the interview, Petitioner signed a Miranda waiver

form. During the interview, the detectives allowed Petitioner

breaks to use the restroom and to eat dinner. Detectives

informed Petitioner that they would provide him with a nde

home and reassured him that he was not under arrest at that time.

Given these circumstances, the state courts properly found that

Petitioner’s statements were voluntarily given. ~

Additionally, unlike the situation in Hayes and Kaupp,

the law enforcement officers in the instant case had probable

cause to detain Petitioner. Pet:tioner misrepresents the facts by

stating that the lead detective testified that the officers lacked

probable cause for an arrest.' Petition for Writ of Certiorari at 6.

Rather, as the state trial court noted, the lead detective testified

‘that had he had the opportunity to compare notes with other

officers at the time of the encounter, they could have probably

established probable cause for an arrest. See Appendix B at B14;

Simmons, 934 So. 2d at 1114 (“At the time of the interview,

detectives had statements from Simmons’ friends and

acquaintances that indicated that he was Tressler’s boyfriend and

that he was the last person seen with Tressler while she was

alive. They also had a statement from Mr. Rodriguez that he saw

Simmons with Tressler between 10:30 p.m. and 10:45 p.m. on

December 1, 2001. Moreover, Simmons’ car matched the

description of the car that two witnesses saw at about midnight

on December 1, from which a woman matching the description

of Tressler was attempting to flee. Detectives also had

statements from witnesses that Simmons may have beaten

Tressler earlier in the week, and they knew that he had

‘ Petitioner further incorrectly states that it “appears” that the Florida Supreme Court

found that Petitioner was in custody because the court considered the alternate

argument that law enforcement officers had probable cause. As the clear language in

the Florida Supreme Court’s opinion establishes, the court found that Petitioner was

not in custody, but voluntarily accompanied officers to the police station. Sce

Simmons, 934 So. 2d 1113-15.

17

previously been arrested for abusing a prior spouse or

girlfnend.”). Because the Florida Supreme Court’s decision

affirming the lower court’s denial of Petitioner’s motion to

suppress does not conflict with any decision from this Court, as

alleged by Petitioner, this Court should deny his petition for writ

of certioran.

REASON Iil

PETITIONER’S REQUEST FOR THIS

COURT TO ISSUE AN ADVISORY

OPINION IS WITHOUT MERIT.

Petitioner asserts that this Court should grant review in

this case in order to set standards “for the proper use of

confessions to provide lower courts with guidance and to ensure

equal protection under the law.” Specifically, Petitioner argues

that his confession was erroneously admitted because it was not

recorded in any fashion? and was simply a sarcastic statement

that did not amount to an acknowledgment of guilt.

Petitioner has failed to satisfy any of the criteria set forth

by this Court in Rule 10 for the granting of certiorari review

- based on this argument. Petitioner cites this Court’s decision in

Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944), for the

proposition thatthe “Constitution of the United States stands as

a bar against the conviction of any individual in an American

court by means of a coerced confession.” Petitioner does not

address how the instant case conflicts with Ashcraft, but rather,

Petitioner vaguely asserts that the state court erred in utilizing his

confession because it was not corroborated. Obviously, the facts

of the instant case are clearly distinguishable from the

interrogation involved in Ashcraft that resulted in his coerced

* Law enforcement officers were videotaping Petitioner's statement, but the officers

were unaware that the 2-hour long tape had run out pnor to Petitioner's statement that

“if they found blood in the car, he must have done it.”

18

confession.”

Petitioner’s main complaint is that his confession should

not have been considered because he was being sarcastic to the

officers and his confession was not recorded. Of course,

Petitioner never testified at either the motion to suppress hearing

or at trial, that he was being sarcastic and Petitioner never denied

making the statement. Although law enforcement were tape-

recording Petitioner’s statement, the conclusion ofhis statement,

including this confession, was inadvertently not recorded

because the tape had run out. The issue of whether Petitioner’s

statement that “if you found blood, I must have done it,” was

simply a sarcastic comment in response to the detective’s

revelation that blood had just been discovered in his automobile,

or was in fact an acknowledgment of guilt, was an issue that was

properly submitted to the trier of fact. This Court has never

required that a defendant’s statements be recorded in order for

the statement to be admissible at trial. As such, Petitioner’s

argument is without merit.

REASON IV

THIS COURT SHOULD DENY

CERTIORARI REVIEW TO CONSIDER

PETITIONER’S CLAIM REGARDING THE

FLORIDA SUPREME COURT’S REVIEW

OF THE SUFFICIENCY OF THE

EVIDENCE.

Petitioner asserts that the Florida Supreme Court’s review

* Ashcraft was interrogated by investigators under bright light, without sleep or rest,

for over thirty-six hours. Ashcraft, 322 U.S. at 150-51. Here, Petitioner voluntarily

gave a statement to law enforcement officers after waiving his Miranda rights, and

confessed when confronted with the fact that blood was found in his vehicle. Whether

Petitioner's statement that “if you found blood, | must have done it,” was simply a

sarcastic comment, as argued by Petitioner, or an acknowledgment of guilt, as argued

by the prosecution, was an issue that was properly submitted to the trier of fact.

19

of the sufficiency of the evidence was unconstitutional because

the court failed to utilize a special standard of review for

circumstantial evidence cases. Counsel for Petitioner, Simmons’

trial attorney below, simply takes issue with facts as presented by

the State and the Florida Supreme Court’s subsequent review of

this evidence.

This Court’s Rule 15.2 admonishes counsel that they

have an obligation to this Court to point out in the brief in

opposition "any perceived misstatement of fact or law in the

petition that bears on what issues properly would be before the

Court if certiorari were granted." Here, Petitioner makes

numerous misstatements of facts when arguing that the evidence

was insufficient to support his convictions. Petitioner argues that

the “facts” relied on by the Florida Supreme Court were not

supported by the record. Contrary to Petitioner’s assertions, the

facts as established by the prosecution were exactly as the

Florida Supreme Court set forth in their lengthy recitation of the

facts. See Simmons, 934 So. 2d at 1105-09. Furthermore, as the

Florida Supreme Court properly noted, Petitioner’s case was not

entirely circumstantial.

In arguing that the Florida Supreme Court should have

utilized a special standard of review in his case because it was

based entirely on circumstantial evidence,* Petitioner seeks a

fact-based review of the sufficiency of the evidence which is

* In reviewing Petitioner’s sufficiency of the evidence claim on direct appeal, the

Florida Supreme Court stated:

In this case, there was physical evidence and

eyewitness testimony, as well as Simmons’ statements, linking

Simmons to Tressler at the time of the murder. We agree with the

State that the jury, as the trier of fact, was entitled to draw an ">

inference that Simmons was acknowledging guilt from his

statement that he “must have did it.” Therefore, this case is not

entirely circumstantial. See Pagan v. State, 830 So. 2d 792, 803

(Fla. 2002) (stating that when the evidence in a case is “both

direct and circumstantial, it 1s unnecessary to apply the special

standard of review applicable to circumstantial evidence cases’”’).

Simmons. 934 So. 2d at 1111 (emphasis added).

20

inappropriate for certiorari review. See United States v.

Johnston, 268 U.S. 220, 227 (1925) ("We do not grant certiorari

to review evidence and discuss specific facts."). This Court is

“consistent in not granting certiorari except in cases involving

principles, the settlement of which is of importance to the public

as distinguished from that of the parties.” Rice v. Sioux City

Mem’] Park Cemetery Inc., 349 U.S. 70, 79 (1955) (quoting

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S.

387, 393 (1923)).

Even if this Court were to review the facts underlying

Simmons’ case, a brief review of the evidence establishes that

this claim is without merit. The evidence contradicted

Appellant’s story that he had dropped the victim off at her place

of employment, a laundromat, early on Saturday evening.

Rather, witnesses observed Appellant and the victim together at

the laundromat late on Saturday evening near midnight, and

shortly thereafter, observed the victim screaming for help and

attempting to jump out of Appellant’s moving vehicle only a few

miles away. After the victim was found dead in a wooded field,

jaw enforcement officers located tire impressions near the body

that were consistent with the two rear tires from Appellant’s

_vehicle. Furthermore, blood consistent with the victim’s was

found in a very large stain underneath the upholstery on the

passenger seat cushion of Appellant’s car and her blood spatter

was found on the passenger door jamb and trim. Finally, when

confronted by detectives with the fact that blood had been found

in his car, Appellant stated that “he must have done it.” As

noted by the Florida Supreme Court, this direct and

circumstantial evidence “establish[ed] beyond a reasonable

doubt” that Simmons was the perpetrator of these crimes.

Simmons v. State, 934 So. 2d 1100 (Fla. 2006).

Clearly, the Flonda Supreme Court’s review of the

* The State had to utilize mitochondrial DNA testing on this blood stain because it was

degraded. Law enforcement technicians discovered partially consumed cleaning

supplies in the vehicle when it was seized approximately a week after the murder.

21

—

evidence did not run afoul of the Constitution. This Court has

held that “the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime which he is charged.” In re

Winship, 397 U.S. 358, 364 (1970); see also Jackson v. Virginia,

443 U.S. 307, 319 (1979) (stating that the reviewing court must

view “the evidence in the light most favorable to the

prosecution” and the trier of fact, not the appellate court, holds

the responsibility to fairly “resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from the

basic facts to ultimate facts” ). The Flonda Supreme Court

followed this requirement in the instant case. See Simmons, 934

So. 2d at 1111 (‘In determining the sufficiency of the evidence,

the question is whether, after viewing the evidence in the light

most favorable to the State, a rational trier of fact could have

found the existence of the elements of the crime beyond a

reasonable doubt.’’), quoting Bradley v. State, 787 So. 2d 732,

738 (Fla. 2001). Although Petitioner contends that the evidence

is insufficient to support his convictions, the jury, the state trial

judge, and the Florida Supreme Court all found that the evidence

established, beyond a reasonable doubt, that Petitioner was guilty

of first degree murder, kidnaping and sexual battery.

REASON V

THE FLORIDA SUPREME COURT

PROPERLY CONSIDERED THIS COURT’S

DECISION IN NEIL V. BIGGERS, 409 U.S.

188 (1972), WHEN ANALYZING

PETITIONER’S CLAIM CONCERNING

THE EYEWITNESSES’ IDENTIFICATION

OF THE VICTIM AND OF PETITIONER’S

AUTOMOBILE.

Petitioner asserts that certioran review should be granted

because the out-of-court identifications of Petitioner’s vehicle

and of the victim were improperly admitted in violation of his

due process rights under the Fourteenth Amendment. Petitioner

agrees that the state trial court and the Florida Supreme Court

properly utilized the standard set forth by this Court in Neil v.

Biggers, 409 U.S. 188 (1972), when addressing his motion to

suppress and/or preclude in-court identification, but Petitioner

argues that the Florida Supreme Court erred in finding that the

totality of the circumstances did not give nse to a substantial

likelihood of irreparable misidentification.

Clearly, the instant issue does not warrant certiorari

review. Petitioner concedes that the proper rule of law was

applied,°® but seeks a fact-based review of the state court’s

findings. As previously noted, infra at 20-21, fact-based review

is inappropriate for certiorari review. See United States v.

Johnston, 268 U.S. 220, 227 (1925) ("We do not grant certiorari

to review evidence and discuss specific facts."). Because the

instant case does not conflict with any decision from this Court

or involve any unsettled question of federal law, certiorari review

should be denied. ‘

REASONS VI AND VII

THIS COURT SHOULD REJECT

PETITIONER’S SUGGESTION TO ADOPT

A BRIGHT LINE RULE ON THE

ADMISSIBILITY OF EXPERT WITNESS’

TESTIMONY CONCERNING THE

RELIABILITY OF EYEWITNESS

IDENTIFICATION.

Petitioner urges this Court to adopt a per se rule regarding

the admissibility of defense expert witness testimony on the issue

of eyewitness identification. Petitioner further contends that the

* Respondent would note that this Court has not extended the Neil factors to the

identification of physical evidence or victims, as has been done by the State court.

23

Florida Supreme Court erred in affirming the trial judge’s

discretionary decision to preclude expert testimony on this

subject. Respondent submits that the admissibility of expert

witness testimony on this issue 1s subject to the discretion of the

trial judge, and the Florida Supreme Court properly concluded

that the trial court acted within its discretion in excluding the

expert witness’ testimony in the instant case.

This Court should deny certiorari review of the instant

claims because Petitioner did not present the instant issues as

constitutional questions to the state courts. Even had Petitioner

presented the issue as such, it lacks merit. This Court has

previously held that “when a state rule of evidence conflicts with

the right to present witnesses, the rule may ‘not be applied

mechanistically to defeat the ends of justice,’ but must meet the

fundamental standards of due process.” Rock v. Arkansas, 483

U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S.

284, 302 (1973)). Of course, this Court noted that the nght to

present relevant testimony is not without limitation and may, in

appropriate cases, bow to accommodate other legitimate interests

in the criminal trial process. Rock, 483 U.S. at 55-56.

In the instant case, the Florida Supreme Court affirmed

the lower court’s evidentiary ruling because the trial judge had

wide discretion concerning the admissibility of evidence under

Florida’s rules of evidence. Florida courts have stated that

“Te}xpert testimony should be excluded when the facts testified

to are of such a nature as not to require any special knowledge or

experience in order for the jury to form its conclusion. We hold

that a jury is fully capable of assessing a witness’ ability to

perceive and remember, given the assistance of cross-

examination and cautionary instructions, without the aid of

expert testimony.” Simmons, 934 So. 2d at 1116-17 (quoting

Johnson v. State, 438 So. 2d 774 (Fla. 1983)). Because the state

law’s discretionary decision does not violate any of Petitioner’s

constitutional rights, this Court should deny certiorari review.

REASON VIII

THE FLORIDA SUPREME COURT

PROPERLY APPLIED THIS COURT’S

APPLICABLE LAW WHEN UPHOLDING

THE TRIAL COURT’S DENIAL OF

PETITIONER’S MOTION TO SUPPRESS

EVIDENCE SEIZED FROM HIS VEHICLE.

Petitioner reasserts the argument he made to the state

courts that, due to factual inaccuracies in the affidavit that

supported the magistrate’s decision to grant a search warrant, the

trial court erred in denying his motion to suppress. The state trial

court and the Florida Supreme Court both rejected Petitioner’s

argument that there were intentional or recklessly false

statements in the search warrant, and Petitioner’s continued

insistence to this Court that there were such inaccuracies is

misleading.’ Because Petitioner's argument is factually

inaccurate, and because the state courts relied on an alternative

basis to deny the motion,® this Court should deny certiorari

review.

The Florida Supreme Court recognized this Court’s

holding in Franks -v. Delaware, 438 U.S. 154 (1978), that

’ Because the Florida Supreme Court meticulously went through each of Petitioner’s

allegations in its decision, Respondent will not detail cach of these alleged

inaccuracies. See Simmons, 934 So. 2d at 1115-17. In short, contrary to Petitioner’s

assertions. the facts from the suppression hearing established that: (1) the affrant,

Detective Brewer, did not falsify his qualifications; (2) Ms. Renfro’s identification of

the victim was not misstated; and (3) the detective’s observation of biood tn the

Petitioner's car was not refuted.

* As both the trial court and the Florida Supreme Court properly found, law

enforcement officers could have searched the vehicle without a search warrant

pursuant to the Carroll doctrine because they had probable cause. Simmons, 934 So.

2d at 1116; see also Carroll v. United States, 267 U.S. 132 (1925) (stating that

automobiles may be searched without a warrant where a law enforcement officer has

probable cause for believing that the vehicle is carrying contraband), Chambers v.

Maroney, 399 U.S. 42 (1970) (finding Carroll doctrine applicable even after law

enforcement towed the car to the police station)

25

“deliberate falsity or reckless disregard for the truth-in an

affidavit that gives rise to a search warrant can, in some

instances, lead to suppression of evidence obtained under that

warrant.” Simmons, 934 So. 2d at 1115. False statements will

only invalidate a search warrant if, after excising the erroneous

information, the remaining true statements are insufficient to

establish probable cause. Id. In the instant case, the trial court

and the Florida Supreme Court properly applied the applicable

law, but rejected Petitioner’s assertion that there were false

statements which needed to be excised from the affidavit. As

such, the instant case does not present an issue that justifies the

exercise of this Court’s certiorari review.

REASON IX

PETITIONER HAS NOT PRESENTED A

FEDERAL CONSTITUTIONAL QUESTION

FOR THIS COURT’S REVIEW BASED ON

HIS CLAIM THAT THE STATE Arne

LACKED VENUE.

Petitioner’s argument concerning the state courts’

determination that the Lake County, Florida circuit court had

original jurisdiction and venue over the criminal charges pending

against Petitioner does not present a federal constitutional

question. The state courts followed applicable state

constitutional Jaw in determining that venue was proper in the

circuit court. Simmons, 934 So. 2d at 1112; see also Art. I, § 16,

Fla. Const. (“In all criminal prosecutions the accused shall, . .

have a speedy and public trial by impartial jury in the county

where the cnme was committed. If the county is not known, the

indictment or information may charge venue in two or more

counties conjunctively and proof that the cnme was committed

in that area shall be sufficient; but before pleading the accused

may elect in which of those counties the tral will take place.

Venue for prosecution of cnmes committed beyond the

26

boundaries of the state shall be fixed by law.”). The issue of

venue is a state law question that does not implicate any of

Petitioner’s federal constitutional nghts.

REASON X

THIS COURT SHOULD DENY

CERTIORARI REVIEW TO CONSIDER

PETITIONER’S ARGUMENT REGARDING

HIS ALLEGED WRONGFUL

CONVICTION.

In his last issue, Petitioner argues that he is an innocent

man who was wrongfully convicted and his trial made “a

mockery of the judicial process.” Petition for Writ of Certiorari

at 26. Petitioner does not present any new legal arguments in

support of this Court granting certiorari, but merely presents

counsel’s erroneous and biased view of the evidence. As noted

throughout this brief in opposition, Petitioner’s counsel]

continues to misrepresent the facts as presented at the trial, and

also omits discussing the facts which inculpate her client. As the

Florida Supreme Court noted when extensively discussing the

facts of this case, “there is sufficient evidence to find Simmons

guilty of kidnapping, sexual battery, and first-degree murder.”

Simmons v. State, 934 So. 2d 1100, 1112 (Fla. 2006). Because

Petitioner is unable to demonstrate any compelling reasons for

this Court to grant certiorari review, Respondent requests that

this Honorable Court deny Petitioner’s petition for wnt of

certiorari.

CONCLUSION

Based on the foregoing arguments and authorities,

~ Respondent respectfully requests that this Honorable Court deny

Petitioner’s request for certiorari review.

Respectfully submitted,

BILL McCOLLUM

ATTORNEY GENERAL

STEPHEN D. AKE

Assistant Attorney General

Florida Bar Number 0014087

Office of the Attorney General

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

(813) 287-7910

COUNSEL FOR RESPONDENT

No. 06-812

IN THE SUPREME COURT OF THE UNITED STATES

ERIC SIMMONS,

Petitioner,

V.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF FLORIDA

x INDEX TO APPENDIX

Appendix A Simmons v. State, 934 So. 2d 1100 (Fla. 2006)

Appendix B- Order Denying Motion to Suppress Defendant’s

Statements, Simmons v. State, Lower Court Case

#01-CF-2577

ERIC SIMMONS, Appellant, vs.

STATE OF FLORIDA, Appellee.

No. SC04-19

SUPREME COURT OF

FLORIDA

934 So. 2d 1100; 2006 Fla.

LEXIS 813; 31 Fla. L. Weekly S

285

May 11, 2006, Decided

SUBSEQUENT HISTORY: [**1] Released for Publication

July 11, 2006. Rehearing denied by Simmons v. State, 2006 Fla.

LEXIS 1548 (Fla., July 11, 2006)

PRIOR HISTORY: An Appeal from the Circuit Court in and

for Lake County, T. Michael Johnson, Judge - CaseNo. 01-CF-

2577-01.

DISPOSITION: Affirmed.

COUNSEL: Janice C. Orr, Eustis, Florida, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida,

Stephen D. Ake and Scott A. Browne, Assistant Attorney

Generals, Tampa, Florida, for Appellee.

JUDGES: PARIENTE, C.J.,and WELLS, ANSTEAD, LEWIS,

CANTERO, and BELL, JJ., concur. PARIENTE, C.J., specially

concurs with an opinion, in which ANSTEAD and CANTERO,

JJ., concur. WELLS, J., concurs with an opinion. BFLL, #,

specially concurs with an opinion. QUINCE, J., concurs in result

only.

Al of A45

OPINION: (*1104] PER CURIAM.

We have on appeal a judgment of conviction of kidnapping,

sexual battery using force likely to cause serious injury, and first-

degree murder of Deborah Tressler, and a sentence of death for

the murder conviction. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const. For the reasons stated herein, we affirm the

convictions and sentence.

[*1105] FACTS AND PROCEDURAL HISTORY

The charges against appellant, Eric Simmons, resulted from

the kidnapping, sexual battery, and stabbing [**2} and beating

of Deborah Tressler, who was found dead in a wooded area in

Sorrento, Florida. Simmons was tried and found guilty of

kidnapping, sexual battery using force likely to cause serious

injury, and first-degree murder. The jury unanimously

recommended death as the penalty for the murder. The trial court

sentenced Simmons to death on the charge of first-degree murder

and life in prison for each of the kidnapping and sexual battery

charges respectively. nl

nl The sentence for sexual battery was to run

consecutive to the sentence for kidnapping, and the

sentence for kignapping was to run consecutive to the

sentence of death for first-degree murder.

Prosecution Evidence

The evidence presented at trial indicated that on December

3, 2001, at approximately 11:30 a.m., John Conley, a Lake

County Sheriff's Office (LCSO) deputy, discovered the body of

Tressler in a large wooded area commonly used for illegal

dumping. The body was located some 270 feet from the main

road. Crime scene technician Theodore Cushing took |**3]

pictures of the body, performed a sketch of the area, and found

five tire tracks near the body. The crime scene technicians took

plaster cast impressions of the three tracks with the most detail

A2 of A45

for comparison purposes. Mr. Cushing noticed that the tire tracks

indicated that a car made a three-point turn close to the body.

All-terrain vehicle tracks were present closer to the body, but

they appeared older and deteriorated.

The medical examiner, Dr. Sam Gulino, observed the victim

and the surroundings at the scene on December 3, 2001, with the

victim lying on her left side with her right arm over her face. Dr.

Gulino estimated the time of death was twenty-four to forty-eight

hours before the body was discovered. ©

Dr. Gulino performed an autopsy, which revealed numerous

injuries. Tressler suffered some ten lacerations on her head, as

well as numerous other lacerations and scrapes on her scalp and

face. n2 There was a very large fracture on the right side of her

head, and her skull was broken into multiple small pieces that

fell apart when the scalp was opened. Dr. Gulino opined that this

injury and the injuries to her brain resulted in shock and

ultimately Tressler's death. There was [**4] another fracture that

extended along the base of the skull, resulting from a high-

energy impact; bleeding around the brain; and bruises in the

brain tissue where the fractured pieces of skull had cut the brain.

There were numerous stab wounds on the neck, a long cut across

the front and night portions of the neck, and other bruises and

cuts. There was little bleeding from these injuries, indicating that

the victim was already dead or in shock at the time of the

injuries. The victim also suffered a stab wound in the nght lower

part of her abdomen that extended into her abdominal cavity and

probably occurred after she received the head injury. There were

also injuries to her anus with bruising on the nght buttock

extending into the anus, and the wall of the rectum was lacerated.

These injuries were inflicted before death. Dr. Gulino opined that

these injuries would be painful and not the result of consensual

anal intercourse. The victim suffered numerous defensive

wounds on her forearms and hands. There was also a t-shaped

laceration on the scalp and an injury at the base of her nght index

finger that was patterned, [*1106] as ifa specific type of object,

A3 of A45

like threads on a pipe, had caused [**5] it. Dr. Gulino opined

that the attack did not occur-at-the-exact spot where Tressler was

found because of the lack of blood and disruption to the area, but

stated that the position of Tressler's body was consistent with an

attack occurring in that area.

n2 Lacerations occur due to an impact with a blunt

force, as opposed to a cut from a sharp object, such as a

knife.

On December 4, 2001, Robert Bedgood, a crime scene

technician, collected evidence from Tressler’s body during the

autopsy. n3 Dr. Jerry Hogsette testified that, based on the

temperature in the area of Tressler's body and the development

of the insect larvae taken from Tressler's body, Tressler had been

killed between midnight on December 1, 2001, and early Sunday

morning, December 2, 2001. n4

n3 This evidence included a vial of Tressler's blood,

hairs from her hand, her clothing, insect larvae, and a

sexual assault kit.

n4 Dr. Hogsette explained that there are three larval -

instar stages, and the larvae taken from Tressler's body

were in the first and second instar stage.

[**6]

After identifying the body as Tressler's, crime scene

technicians went to the trailer where Tressler lived and the

Jaundromat where she worked to conduct Luminol testing. They

found Tressler's purse at the laundromat and located a birthday

list containing the names of Simmons' relatives. There was no

evidence of violence in either place.

A4 of A45

Andrew Moniz testified that late on the night of December 1,

2001, he was at the Circle K convenience store at the intersection

of State Road 44 and County Road 437 in Lake County. Mr.

Montz saw a white four-door car heading northbound on 437,

stopping at the traffic light very slowly, when a woman opened

the passenger door and screamed, "Somebody help me.

Somebody please help me." The driver pulled the woman back

into the car and ran the red light quickly. Mr. Montz stated that

the woman was wearing a white T-shirt or pajama-type top. He

was not able to see the driver and described the car as a Chevy

Corsica/Ford Taurus-type car with a dent on the passenger side,

black and silver trim on the door panel, and a flag hanging from

the window. After viewing a videotape of a white 199] Ford

Taurus owned by Simmons a year later, Mr. Montz identified it

[**7] as being the car he saw on December 1. Mr. Montz

initially told lead Detective Stewart Perdue that the car had

spoked rims, but after viewing spoked rims at an auto parts store,

he concluded that the rims on the car he saw were not spoked.

Sherri Renfro testified that she was at the same Circle K as

Montz between 11:30 and 11:40 p.m. with her sister-in-law's

boyfriend, Shane Lolito. She also saw a white car slowly

approach the red light, the passenger door open, and a woman

yell for help while looking directly at Ms. Renfro. Ms. Renfro

yelled at the driver to stop, but he did not, and Ms. Renfro got

into her van and chased after the car. She traveled tn excess of

the speed limit, but was unable to get close to the car and

eventually lost track of it. Ms. Renfro thought that the car was a

Chevy Corsica, but admitted that she "[did not] really know [her]

cars too well." She recalled that the car had a patriotic bumper

sticker in the rear window and a flag hanging from the back

passenger window. She testified that there was a large spotlight

on the side of the Circle K building that illuminated the

surrounding area well. Ms. Renfro subsequently identified

Simmons’ white Ford Taurus [**8] as the car she saw at the

intersection, [*1107] and she recognized the interior, the

AS of A45

bumper sticker, and the flag on the car. Ms. Renfro identified

Tressler as the woman in the car when shown a photograph of

her.

Jose Rodriguez testified that he knew Tressler from the

laundromat, he often saw Simmons and Tressler together

drinking, and he was familiar with Simmons' car. Mr. Rodriguez

saw Simmons with Tressler at the laundromat on the night of

December 1, 2001. When he arrived at the laundromat, he

knocked on the glass window to get Simmons' attention and

asked him to come outside. While Simmons was exiting, Mr.

Rodriguez got Tressler’s attention and asked if she was okay; she

replied that she was. Mr. Rodriguez spoke with Simmons for a

few minutes and then talked to his own girlfriend on the pay

phone outside. When he finished, Simmons and Tressler were

still inside the closed laundromat.

Mr. Rodriguez was arrested the next day on unrelated

charges, and on December 5, 2001, police officers showed Mr.

Rodriguez a photopack with about thirty-five pictures in it, but

he was unable to identify any as Tressler's boyfriend. However,

Mr. Rodriguez picked the picture that looked most like Simmons

[**9] and he drew additional charactenstics similar to those of

Simmons. On December 7, Mr. Rodriguez positively identified

a photograph of Simmons as Tressler's boyfriend.

Detective Perdue testified that he and other police officers

went to Simmons' parents’ home after confirming that Simmons

owned a white 1991 Ford Taurus. Detective Perdue and

Detective Kenneth Adams approached Simmons and asked him

to walk to a group of trees so they could talk. There were some

fifteen other police officers at the scene as well as a helicopter

flying overhead. Simmons acknowledged that he knew Tressler

was dead, and the detectives asked if Simmons would come to

the sheriff's office to talk. Simmons consented, and the detectives

transported him to the sheriff's office in the back of a police

cruiser. The detectives handcuffed Simmons for their protection

pursuant to their standard practice, and Simmons did not object.

Ao of A45

Detectives Perdue and Adams removed the handcuffs upon

arrival at the office, and interviewed Simmons in a room

equipped with audio and video capabilities, although the

videotape was allowed to run out after two hours.

Simmons waived his Miranda nS rights and stated that he

was friends [**10] with Tressler and had tried to help her

improve her living conditions. n6 Simmons explained to

Detective Perdue that on December 1, 2001, he and Tressler had

been watching the Florida-Tennessee football game at his

apartment in Mount Dora. The reception was bad, so Tressler

asked him to take her to the laundromat or her trailer so she

could watch the game. He took her to the laundromat and then

drove home because Tressler and he were supposed to go to

work together early the next morning for his father's landscaping

business. He stated that he had engaged in sexual intercourse

with Tressler on one occasion approximately two weeks before

the interview, even though Simmons’ semen was found in

Tressler's vaginal washings during her autopsy. During a break

in the interview, the detectives learned that [*1108] blood had

been found in Simmons’ car. n7 After the detectives informed

Simmons of this, he stated, "Well, I guess if you found blood in

my car, I must have did it.”

n5 Miranda v. Anzona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966).

n6 Tressler lived in a trailer without plumbing behind

the Oasis bar; she had to wash herself with a garden hose

outside.

[**11]

n7 The detectives took turns leaving the room dunng

the interview to check on the status of Simmons’ car,

which had been towed to the LCSO while detectives were

interviewing Simmons. After the police obtained a search

A7 of A45

warrant, Detective Perdue watched the technicians

perform a presumptive test on a suspected blood stain in

the car, which indicated that it was blood.

Terrell Kingery, a crime lab analyst with the Florida

Department of Law Enforcement (FDLE), examined the plaster

tire casts from the scene of the crime and compared them to the

tires on Simmons' car. The rear tires, which were different

brands, were consistent with the three plaster casts. The

dimension and general condition of the rear tires were consistent

with two of the three casts.

Crime scene technician Ronald Shirley testified that when he

performed a presumptive test for blood on a stain on the

passenger door of Simmons' car, he obtained a positive result.

Lumino] testing was positive for blood on the area around the

passenger seat cushion, the carpet below the passenger seat in the

front and back, and especially the area [**12] of the passenger

seat where one sits. Mr. Shirley noted that there were containers

of partially consumed cleaning materials in the car. Technicians

also cut the fabric off the seat cover and noted a large stain on

the cushion itself.

Brian Sloan, a forensic DNA analyst, performed a

mitochondrial DNA (mtDNA) sequence on the cushion stain and

testified that, in his professional opinion, the stain on the cushion

was blood. He testified that mtDNA is inherited maternally, and

the mitochondria] genome is 16,500 pairs long. Most of these

pairs are very similar between individuals, but approximately

610 bases are highly variable between individuals, and these

variable bases can be used to differentiate between people.

mtDNA testing differs from the Short Tandem Repeat (STR)

technique for DNA profiling because the STR technique is

specific to the DNA in-the nucleus, or chromosomal DNA. Mr.

Sloan testified that mtDNA is the better technique to use on

degraded samples because the plasmid circular DNA in

mitochondna have thousands of copies in a single cell.

A8 of A45

Mr. Sloan compared the mtDNA extracted from the seat

cushion to that of Lee Daubanschmide, Tressler’s mother;

determined that each had [**13] an anomaly in the same place;

and concluded that the two DNA sequences were consistent.

After noting the consistency, Mr. Sloan entered the sequence into

the FB! database of 4,839 contributors to check for matches, and

concluded that the sequence had never been seen in that group.

Mr. Sloan also stated that mtDNA is present in several types of

human biological fluid or material, such as bones, hair, saliva,

semen, diarrhea, sweat, and menstruation. He noted that he did

not run statistical calculations to determine the ninety-five

percent confidence interval as had Dr. Rick Staub, the director of

the lab. Dr. Staub had obtained an upper confidence limit of one

in 1600 individuals, but was unable to testify at trial.

Shawn Johnson, a crime laboratory analyst with the FDLE,

testified that he performed a presumptive chemical test on the

cushion stain, which was positive for blood. He then took three

different cuttings from three different areas, combined them into

{*1109] one sample, but did not get any DNA results. Mr.

Johnson testified that the lack of DNA results indicated that there

was degradation of the DNA. Mr. Johnson swabbed the front

passenger door jamb of Simmons’ car and obtained [**14] a

DNA profile that matched Tressler's. Mr. Johnson also matched

Tressler's DNA to other stains on the car trim.

Defense Evidence

The defense called a number of witnesses during its case.

Stuart James, a defense witness who is an expert in blood stain

pattern analysis, examined blood spatter in photographs of the

doorjamb of Simmons’ car and concluded that it was a limited

amount of staining but that it was consistent with the size range

found in beatings, stabbings, and sometimes gunshots.

Dr. Neal Haskell, a forensic entomologist, testified that he

could not determine the time of Tressler's death from the insect

specimens collected by the LCSO. He also could not determine

AQ of A45

whether Dr. Hogsette's opinion regarding the time of death was

correct, but he opined that some of Dr. Hogsette's conclusions

were faulty and that Dr. Hogsette was not qualified as a forensic

entomologist.

Dr. Terry Melton, an expert in mtDNA analysis, testified that

the State's lab results regarding the match with the mtDNA were

correct, but its statistical analysis that the mtDNA sequence had

never been seen in the FBI database was incorrect. Dr. Melton

stated that the State's lab did a search of the DNA bases [**15]

only on a portion of the DNA they obtained. In Dr. Melton's lab,

they compare all 783 of the DNA bases to the known DNA

bases. When Dr. Melton ran the data in the database according

to her lab's methods, she found a common type sequence in 105

of the 4839 people in the database.

Dr. Wilber Frank, a veterinarian and local resident, testified

that he encountered a white four-door car driving very slowly at

the intersection of State Road 44 and Seminole Springs Road at

about 11 a.m. on December 2, 2001, near the area where the

victim's body was found. The driver appeared to be an older

white male.

At the conclusion of the trial's guilt phase, the jury found

Simmons guilty of kidnapping, sexual battery using force likely

to cause serious injury, and murder in the first degree, all as

charged in the indictment. n&

n8 The grand jury indictment charged Simmons with

murder in the first-degree due to the murder being from a

premeditated design or while engaged in the felony of

sexual battery. The jury simply found Simmons guilty of

first-degree murder without differentiating between the

two.

[**16]

Penalty Phase

AlO of A45

During the penalty phase, the State presented victim impact

evidence from a customer of the laundromat where Tressler

worked and Tressler's father. The defense produced the probable

cause affidavit involving Simmons' prior conviction in 1996 for

aggravated assault with a deadly weapon against a law

enforcement officer. Defense counsel also called a corrections

officer to testify regarding Simmons’ behavior while he was

incarcerated during the trial, and Simmons' sister to provide

character evidence for Simmons. n9

n9 These witnesses were Sergeant Craig Leslie and

Ashley Simmons. Sergeant Leslie testified that Simmons

had one incident of disciplinary confinement because he

engaged in a fight with another inmate, which was not

surprising to Sergeant Leslie considering Simmons ' stay in

jail of a year and nine months at that time. Ashley

Simmons testified that Simmons came from a loving,

close-knit family, and he was always helping other people,

which "got him in the position he's in today."

[*1110] The jury [**17] unanimously returned an advisory

verdict recommending a death sentence for the murder. The

special interrogatory verdict form specifically indicated that the

jury found unanimously that the State had proven three

aggravating factors beyond a reasonable doubt: (1) Simmons was

previously convicted of a felony involving the threat of violence

to a person; (2) the crime for which Simmons was to be

sentenced was committed during the commission of or attempt

to commit sexual battery, kidnapping, or both; and (3) the crime

for which Simmons was to be sentenced was heinous, atrocious,

or cruel (HAC).

The trial. court held a Spencer n10 hearing and heard

testimony from Dr. Elizabeth McMahon, the defense's mental

health expert. She testified that Simmons had a moderate-to-

severe learning disability but no significant history of violence.

All of A45S

Because the jury was not privy to these opinions, the trial court

considered the jury's recommended sentence, but also

independently weighed the evidence of aggravating and

mitigating circumstances in determining Simmons' sentence. The

trial court agreed with the jury's findings of the three aggravators,

giving moderate weight to the prior felony conviction [**18]

aggravator and great weight to the other two. The court rejected

the defense's proposed statutory mitigating circumstance of

Simmons' age of twenty-seven because there was no evidence

that he functioned at a level below his age in anything but

reading. The court also rejected all other statutory mitigating

factors, but found a number of nonstatutory mitigating factors:

(1) Simmons manifested appropriate courtroom behavior (some

weight); (2) Simmons was kind to the victim (some weight); (3)

Simmons loves and cares for animals (minimal weight); (4)

Simmons was active in his church and a mentor to boys who

belonged to the church's Royal Rangers (some weight); (5)

Simmons had a good family background and came from a closely

knit, caring family (some weight); (6) Simmons was employed

(some weight); (7) Simmons has a learning disability (some

weight); and (8) Simmons is immature (some weight). The tral

court rejected three other proposed mitigating circumstances as

either not proven or not mitigating in nature, and imposed the

death penalty for the murder. n11

nl0 Spencer v. State, 615 So. 2d 688 (Fla. 1993).

([**19]

nll The mitigating circumstances rejected by the tnal

court were: (1) Simmons' manifestation of appropriate

behavior while at the jail (not proven); (2) residual or

lingering doubt that Simmons is guilty and that Simmons'

behavior is inconsistent with the psychological profile of

a murderer (not proven and not admissible to prove

innocence because it is inadmissible to prove guilt); and

(3) the prosecution of Simmons was partially predicated

Al2 of A45

upon circumstantial evidence (not mitigating).

ISSUES ON APPEAL

On appeal, Simmons raises eleven issues: (1) the guilty

verdicts on the charges of kidnapping, sexual battery, and murder

are not supported by the evidence; (2) the trial court did not have

jurisdiction and venue was not proper in Lake County; (3) the

trial court erred in denying Simmons’ motion to suppress his

statement to law enforcement officers and evidence obtained

from the search of his vehicle; (4) [*1111] the trial court erred

in allowing the State's expert on mtDNA to testify before the

jury; (5) the prosecuting attorney made improper remarks

regarding the mtDNA evidence; (6) the tria] court [**20] erred

in excluding the testimony of a defense expert in eyewitness

identification; (7) the trial court erred in allowing the State's

entomology expert to testify as an expert in the life cycle of flies;

(8) the trial court erred in denying Simmons' motron to exclude

an in-court identification of Simmons' vehicle; (9) the prosecutor

engaged in misconduct that rose to the level of preventing a fair

trial; (10) Florida's death penalty statute is unconstitutional; and

(11) the trial court erred in imposing aggravators to arrive at the

death sentence. We address each of these issues. n12 In addition,

although not raised by Simmons, we have reviewed the record

and conclude that, in light of the totality of the circumstances,

Simmons' death sentence is proportionate when compared to the

facts of other death penalty cases.

nl2 We find that Simmons’ claim that the State's

witness on mtDNA testing was not qualified to testify is

waived because defense counsel failed to object to his

qualifications at trial. See Bertolotti v. Dugger, 514 So. 2d

1095, 1096 (Fla. 1987)("In order to preserve an issue for

appellate review, the specific legal argument or ground

upon which it 1s based must be presented to the trial

court."). We also find that Simmons’ claim that the

Al3 of A45

prosecutor made improper remarks concerning the

mtDNA evidence on Simmons ' car seat is waived because

Simmons' counsel] did not properly brief this issue for

appeal. See Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla.

1997) (stating that a failure to fully brief and argue points

on appeal "constitutes a waiver of these claims"); see also

Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) ("The

purpose of an appellate bref is to present arguments in

support of the points on appeal. Merely making reference

to arguments below without further elucidation does not

suffice to preserve issues, and these claims are deemed to

have been waived."). Likewise, we conclude that

Simmons’ argument that the prosecutor engaged in

misconduct that rose to the level of preventing a fair trial

is waived because of its vagueness.

et: 1]

I. Sufficiency of the Evidence

In Simmons' first issue on appeal, he contends that the

evidence against him is not sufficient to support the trial court's

guilty verdicts on the charges of kidnapping, sexual battery, and

first-degree murder. "In determining the sufficiency of the

evidence, the question is whether, after viewing the evidence in

the light most favorable to the State, a rational trier of fact could

have found the existence of the elements of the crime beyond a

reasonable doubt." Bradley v. State, 787 So. 2d 732, 738 (Fla.

2001) (citing Banks v. State, 732 So. 2d 1065, 1067 n.5 (Fla.

1999)).

In this case, there was physical evidence and eyewitness

testimony, as well as Simmons’ statements, linking Simmons to

Tressler at the time of the murder. We agree with the State that

the jury, as the trier of fact, was entitled to draw an inference that

Simmons was acknowledging guilt from his statement that he

"must have did it." Therefore, this case is not entirely

circumstantial. See Pagan v. State, 830 So. 2d 792, 803 (Fla.

Aldaf AAS

2002) (stating that when the evidence in a case is "both direct

and circumstantial, it is unnecessary [**22] to apply the special

standard of review applicable to circumstantial evidence cases").

A confession constitutes direct evidence of guilt. Floyd v. State,

850 So. 2d 383, 406 (Fla. 2002) (citing Walis v. State, 641 So.

2d 381, 390 (Fla. 1994)).

Further, Mr. Rodriguez testified that Simmons was the last

person seen with Tressler in the laundromat on the evening

_{*1112] of December 1, 2001. Eyewitnesses then saw Tressler

trying to escape Simmons’ car and screaming for help at the

intersection of State Road 44 and County Road 437. Three

eyewitnesses identified the car they saw on the night of

December 1, 2001, as resembling a Chevrolet Corsica or Ford

Taurus and possessing characteristics matching Simmons' car.

There was blood spatter in Simmons' car and a large, degraded

blood stain on the passenger seat. Tire track impressions taken

from the area near where Tressler's body was discovered

matched the two rear tires of Simmons’ car, which were two

different tire models. Simmons’ semen was found in Tressler's

vaginal washings. Dr. Gulino testified that Tressler's autopsy

revealed extensive injuries to her anus not consistent with

consensual anal sex. In light [**23] of these facts and

circumstances, we conclude that there is sufficient evidence to

find Simmons guilty of kidnapping, sexual battery, and first-

degree murder. See Thomas v. State, 894 So. 2d 126, 131-32,

134-35 (Fla. 2004) (holding that a combination of direct

eyewitness testimony, the defendant's confession, and

circumstantial evidence that defendant continued to confine

victim while intending tc inflict harm because she was eventually

sexually assaulted and murdered supported a conviction of

kidnapping and first-degree murder), cert. denied, 544 U.S. 1003,

125 S. Ct. 1939, 161 L. Ed. 2d 779 (2005).

Il. Jurisdiction and Venue

In his next issue on appeal, Simmons argues that the tral

court erred in determining that it had jurisdiction to try Simmons

Al1S of A45

because the State admitted it had no knowledge of exactly where

the crimes occurred. In contrast, the State points out that

jurisdiction is distinct from venue, and a circuit court has

jurisdiction to adjudicate a first-degree murder case. Further, the

State notes that venue is sufficiently proven if the jury can

reasonably infer from the evidence that the crime occurred in the |

county where the trial occurs. n13

nl3 The State correctly points out in its brief that

Simmons’ counsel adopts arguments made in the court

below in her initial brief to this Court. This practice does ©

not preserve an issue for review by an appellate court. See

Duest, 555 So. 2d at 852 (stating that claims are deemed

waived if a party merely makes reference to arguments

made in a lower court).

[**24]

The circuit courts have exclusive original jurisdiction over all

felonies. Art. V, § 5(b), Fla. Const.; § 26.012(2)(d), Fla. Stat.

(2003). A person can be prosecuted in this state for a crime if the

offense is committed either wholly or partly within this state. §

910.005(1)(a), Fla. Stat. (2003). Because a circuit court has

original jurisdiction over felonies, including murder, we find that

the trial court properly denied Simmons’ motion to dismiss for

lack of jurisdiction.

As to venue:

Venue need not be established beyond a

reasonable doubt. If the evidence raises a violent

presumption that the offense was committed within

the county, or if the evidence refers to localities and

landmarks at or near the scene of the alleged

offense, known or probably familiar to the jury,

from which they may reasonably infer that the

offense was committed in the county, it will be

suff ~ient.

Al6 of A45

Lowman v. State, 80 Fla. 18, 85 So. 166, 167 (Fla. 1920). In this

case, it could reasonably be inferred that the felonies were

[*1113] committed in Lake County. The evidence in the tnal

court tended to show that eyewitnesses observed [**25] Tressler

in Simmons’ car screaming for help in Lake County on the night

of December 1, 2001. Tressler's body was discovered in Lake

County on the morning of December 3, 2001. While it is possible

that the murder and sexual battery could have occurred in a

different county, it is reasonable for a jury to infer that the crimes

occurred in Lake County.

Ill. Simmons' Motion to Suppress Statements and Vehicle

Evidence

Simmons argues that the tral court erred in refusing to

suppress the statements he made to police because he did not

voluntarily accompany authorities to the police station. Simmons

also argues that the tnal court improperly denied his motion to

suppress the evidence law enforcement officers obtained from

his vehicle. This Court has stated that "a suppression ruling

comes to the reviewing court clad in a presumption of

correctness as to all fact-based issues." State v. Glatzmayer, 789

So. 2d 297, 301 (Fla. 2001). Given the evidence before the trial

court, we find no error.

A. Simmons’ Statements

The trial judge denied Simmons’ motion to suppress,

determining that Simmons voluntarily submitted to the

interrogation and, in the alternative, that the [**26] detectives

had probable cause to detain Simmons for a custodial

interrogation.

1. Voluntariness of the Interrogation

Simmons contends that, given the number of officers that

surrounded his parents’ Pine Lakes residence on December 7,

2001, a reasonable person in his position would not feel that he

or she could decline the detectives’ invitation to come to the

Al7 of A45

sheriff's office. Further, Simmons contends that the fact that he

[*1114] was handcuffed and transported in the back of a caged,

marked police cruiser belies the contention that he went

voluntarily.

In support of his argument, Simmons cites to Hayes v.

Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985).

In Hayes, police approached a burglary-rape suspect on his front

porch and asked him to come to the police station for

fingerprinting. Id. at 812. An investigator threatened to arrest the

suspect if he did not comply. Id. The United States Supreme

Court determined that Hayes' detention was not consensual, and

it reversed the conviction and remanded the case because the

police did not have probable cause to detain the suspect. Id. at

814, 817-18.

Unlike the defendant in Hayes [**27]} , the uncontroverted

testimony by the officers in this case indicates that Simmons

never expressed any reluctance to accompany the detectives to

the sheriff's office. The officers did not threaten Simmons with

an arrest or try to coerce him in any way. These crucial factual

differences distinguish Hayes from the present case.

Although Simmons contends that a "thundering herd" of

police officers would render any reasonable person unable to

refuse the detectives’ invitation, the record shows that most of

these officers were not directly involved in any confrontation

with Simmons or the conversation between Simmons, Detective

Adams, and Detective Purdue. These two detectives were not in

uniform and were not armed when they conducted the initial

interview at Simmons' parents’ home. Moreover, although

Simmons was handcuffed and transported in the back of a caged

police cruiser, the State presented evidence that these measures

were taken for the safety of the police officers involved and that

police removed the handcuffs as soon as Simmons reached the

sheriff's office. Nothing in the record indicates that Simmons

objected to being handcuffed or at any time expressed a desire to

terminate [**28] the encounter. Our recognition of the propriety

Al8 of A45

of using handcuffs in noncustodial encounters with police is in

line with this Court's prior case law. See, e.g.. Taylor v. State,

855 So. 2d 1, 18 (Fla. 2003) (ho. ding that the use of handcuffs

during a trip from a police cruiser to an interrogation room did

not render a detention custodial when the suspect was told that

he was not under arrest). Under the totality of the circumstances,

we find no error in the trial court's determination that a

reasonable person in Simmons' position would have felt free to

terminate the encounter with police.

Simmons does not deny that he signed a Miranda waiver

before the detectives began to interview him at the sheriff's

office, and he never asked to terminate the interview. The two

detectives allowed Simmons to use the bathroom when he

needed to, and the three even ate dinner together. Moreover, the

detectives told Simmons that they would provide a nde home if

his family could not come to get him, and they reassured

Simmons that he was not under arrest.

Given the significant deference that we give to tnal courts'

fact-finding on motions to suppress, we conclude that the trial

[**29] court did not abuse its discretion when it accepted the

evidence presented by the State and determined that Simmons'

December 7 interview with detectives was voluntary under the

totality of the circumstances.

2. Probable Cause

Even if Simmons was able to successfully argue that his

detention was custodial and not voluntary, he would still have to

show that the police detained him without probable cause in

order to prevail. See Blanco v. State, 452 So. 2d 520, 523 (Fla.

1984) (holding that the trial court properly denied defendant's

motion to suppress evidence when there was probable cause to

support his de facto arrest). In addition to finding that Simmons'

encounter with detectives was voluntary, the trial court

determined that the police had probable cause to detain

Simmons.

Al9 of A45

We have stated that "[p]robable cause for arrest exists where

an officer 'has reasonable grounds to believe that the suspect has

committed a felony. The standard of conclusiveness and

probability is less than that required to support a conviction.' "

Chavez v. State, 832 So. 2d 730, 747 (Fla. 2002) (quoting

Walker v. State, 707 So. 2d 300, 312 (Fla. 1997)). [**30] At the

time of the interview, detectives had statements from Simmons’

friends and acquaintances that indicated that he was Tressler's

boyfnend and that he was the last person seen with Tressler

while she was alive. They also had a statement from Mr.

Rodriguez that he saw Simmons with Tressler between 10:30

p.m. and 10:45 p.m. on December 1, 2001. Moreover, Simmons’

car matched the description of the car that two witnesses saw at

about midnight on December 1, from which a woman matching

the description of Tressler was attempting to flee. Detectives also

had statements from witnesses that Simmons may have beaten

Tressler earlier in the week, and they knew that he had

previously been arrested for abusing a prior spouse or girlfriend.

This Court has stated that "[t]he existence of probable cause

is not susceptible [*1115] to formulaic determination. Rather,

it is the ‘probability, and not a prima facie showing, of criminal

activity [that] is the standard of probable cause.’ " Doorbal v.

State, 837 So. 2d 940, 952-53 (Fla. 2003) (citations omitted)

(quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317, 76

L. Ed. 2d 527 (1983)). Considering the totality of the

circumstances [**31] and the evidence presented in this case,

we cannot say that the trial court abused its discretion when it

found that any custodial detention of Simmons was supported by

probable cause.

B. Evidence from Simmons’ Vehicle

Simmons also challenges the trial court's denial of his motion

to suppress evidence seized from his vehicle on December 7,

2001, under a search warrant. Simmons alleges that factual

inaccuracies plague the affidavit that supported the magistrate's

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decision to grant the search warrant. Simmons alleges that, after

excising those portions of the affidavit that are inaccurate, the

State is left with nothing upon which the magistrate could have

found probable cause to authorize a search.

Deliberate falsity or reckless disregard for the truth in an

affidavit that gives rise to a search warrant can, in some

instances, lead to suppression of evidence obtained under that

warrant. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct.

2674, 57 L. Ed. 2d 667 (1978). However, we have held that an

erroneous statement will only invalidate a search warrant if, after

excising the erroneous statement, the remaining true statements

are insufficient to establish probable cause. [**32] See Terry v.

State, 668 So. 2d 954, 958 (Fla. 1996). In the instant case, the

trial court ruled that there were, in fact, no intentionally or

recklessly false statements.

First, Simmons alleges that the affidavit provides an

inaccurate description of Detective Brewer's qualifications by

stating that Detective Brewer had been a law enforcement officer

since 1979 because Detective Brewer's certification lapsed for

twenty years while he pursued a career as an attorney. The

record, however, indicates that Detective Brewer was a swom

officer at the time that he signed the affidavit and that his

experience as an officer dated back to 1979. Further, although

Detective Brewer's Florida certification did lapse during the

1980s, his certification as a military police officer continued

during this period and never lapsed. Given this evidence, we

conclude the trial court did not err in concluding that the portion

of the affidavit regarding Detective Brewer's qualifications was

not false.

Next, Simmons alleges that the affidavit misstates the

information that detectives obtained from Ms. Renfro. Detective

Brewer's affidavit indicates that a witness observed a woman

who matched [**33] the description of the victim and was

screaming and attempting to flee a white Chevrolet Corsica-type

car. Simmons cites to Ms. Renfro's statement to the police, which

A2] of A45

indicated that the woman that Ms. Renfro saw was in her mid-

fifties, had short brown hair, and was wearing a white T-shirt.

Because Tressler was actually forty-eight, had long black hair,

and was wearing a grey shirt, Simmons argues that Ms. Renfro's

description did not match the description of Tressler and that the

affidavit is materially false.

However, as the trial court properly noted, Detective Purdue

testified that Ms. Renfro positively identified Tressler's picture

as the same woman she saw in the car. Therefore, despite the

slight variations Simmons notes between Ms. Renfro's [*1116]

description and Tressler's actual appearance, the trial court

properly concluded that the portion of the affidavit regarding Ms.

Renfro's description of Tressler was not misstated.

Next, Simmons alleges an inaccuracy in the portion of the

affidavit that indicates that Detective Brewer personally observed

several visible stains consistent with dried blood in the back of

Simmons' vehicle. This is because the trial judge personally

examined [**34] the sheet and found no blood. While there does

appear to be an inconsistency between Detective Brewer's and

the trial judge's observations of the sheet, the record does not

refute Detective Brewer's testimony that he personally observed

blood stains prior to preparing the warrant. The trial court found

that the officer's observations and conclusions were not

unreasonable considering the circumstances of the observations.

The trial court also noted that "(t]he observation of the blood-

stained sheet may be superfluous under Chambers v. Maroney,

399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419" (1970), because

"the initial Fourth Amendment intrusion was the seizure of the

vehicle, and a proper analysis would be to review of [sic] the

facts as they existed at that time.” In Chambers, the United States

Supreme Court stated:

For constitutional purposes, we see no difference

between on the one hand seizing and holding a car

before presenting the probable cause issue to a

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magistrate and on the other hand carrying out an

immediate search without a warrant. Given probable

cause to search, either course is reasonable under

the Fourth Amendment.

399 U.S. at 52. [**35] We find no error in the rulings of the trial

court.

Simmons further alleges that the testimony as to when

Detective Brewer signed the affidavit and when the magistrate

issued the search warrant indicates that Detective Brewer never

saw the vehicle before signing the affidavit. The trial court

acknowledged that although there was "some question as to

when the affidavit and warrant were presented to the magistrate,"

the trial court did "not find the discrepancy in time [to be] any

indication of untoward action on behalf of the Lake County| |

Sheriffs Department." Considering the totality of the

circumstances and the deference we give to the trial court

regarding factual determinations, we find no error. Based on the

analysis concerning Simmons’ statements and the search of his

vehicle, we also find no merit to Simmons' contention that the

arrest of Simmons was the result of police misconduct.

IV. Testimony of Defense Expert in Eyewitness

Identification

In his next issue on appeal, Simmons argues that the trial

court erred in refusing to admit Dr. John Brigham's expert

testimony concerning the psychological factors that contribute to

erroneous witness identifications when law [**36] enforcement

officers use suggestive techniques. 7

In Johnson v. State, 438 So. 2d 774 (Fla. 1983), this Court

found no error in a trial court's refusal to allow such expert

testimony:

A trial court has wide discretion concerning the

admissibility of evidence and the range of subjects

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about which an expert can testify. Jent v. State, 408

So. 2d 1024 (Fla. 1981), cert. denied, 457 U.S.

1111, 102 S. Ct. 2916, 73 L. Ed. 2d 1322 (1982);

Johnson v. State, 393 So. 2d 1069 (Fla. 1980), cert.

denied, 454 U.S. 882, [*1117] 102 S. Ct. 364, 70

L. Ed. 2d 191 (1981). Expert testimony should be

excluded when the facts testified to are of such

nature as not to require any special knowledge or

experience in order for the jury to form its

conclusions. We hold that a jury is fully capable of

assessing a witness’ ability to perceive and

remember, given the assistance of cross-

examination and cautionary instructions, without

the aid of expert testimony.

Id.at 777 (citation omitted). Subsequently, in McMullen v. State,

714 So. 2d 368 (Fla. 1998), this Court considered whether the

same expert witness, [**37] Dr. Brigham, was improperly

excluded as a witness when offering similar testimony. This

Court concluded "that the admission of such testimony is within

the discretion of the trial judge and that . . . the trial judge did not

abuse that discretionary authority by refusing to allow the

introduction of the expert testimony." Id. at 369. This Court

stated in McMullen that Florida follows the "discretionary" view

articulated in Johnson regarding the admissibility of expert

witness testimony concerning the reliability of eyewitness

testimony. Id. at 370-71. Dr. Bingham stated in his proffered

testimony in the present case that he would testify at trial to

issues similar to those in McMullen. Under our case law we

conclude the trial judge did not abuse his discretion in

disallowing Dr. Brigham's testimony.

V. State's Entomology Expert

Simmons next argues that because Dr. Hogsette, the State's

expert in the life cycle of flies, was not qualified as a forensic

entomologist, the trial court erred in allowing him to testify

A24 of A45

regarding the approximate time of Lressier's deatn.

A trial judge has the discretion to determine if a witness's

qualifications {[**38] render him or her an expert, and this

determination will not be overtumed absent clear error. Johnson,

438 So. 2d at 777 (noting a trial court's wide discretion regarding

evidence admissibility and expert testimony). We conclude that

the trial court did not commit error in allowing Dr. Hogsette to

utilize his knowledge of the life cycle of flies and relate this

knowledge to the estimated time of Tressler's death. During trial,

Dr. Hogsette testified concerning his experience in entomology

and his involvement in other murder cases, stating that other

courts had recognized him as an expert in the field of

entomology and the life cycle of flies. He had worked on forensic

cases since the 1970s, utilizing his expert knowledge in

determining the age of corpses, and he explained that the work

he has performed on flies involved the same principles that a

forensic entomologist would use. Of course, there was also other

evidence presented during trial, such as the eyewitness testimony

of the events preceding the murder, that placed Tressler's death

during the time period opined by Dr. Hogsette. We find that the

trial court did not err in allowing Dr. Hegsette to testify.

VI. [**39] Identification of Tressler and Simmons' Vehicle

Next, Simmons claims the trial court erred in denying

Simmons’ motion to exclude or preclude the identification of

Simmons' vehicle. n14 He argues that the procedures [*1118]

used to identify Simmons’ vehicle and Tressler were

unnecessarily suggestive because Ms. Renfro was shown only

one photograph and one vehicle to identify Tressler and

Simmons' vehicle, and Mr. Montz was shown only one vehicle

over a year after he first viewed it to identify Simmons' vehicle.

nl5

nl4 Simmons' bref states that arguments made at the

trial court level regarding Simmons’ motion to suppress

are incorporated by reference into his brief on this appeal.

A25 of A45

"Merely making reference to arguments below without

further elucidation does not suffice to preserve issues, and

these claims are deemed to have been waived." Duest, 555

So. 2d at 852. Therefore, any arguments not expressly

included in Simmons' brief to this Court are not

considered in this appeal.

n15 Initially, we reject Simmons' arguments that Ms.

Renfro's and Mr. Montz's identifications violated

Simmons' Sixth Amendment right to counsel. Under

Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 77 L.

Ed. 158 (1932), defendants have a right to counsel at

critical stages of their cases, including the time between

arraignment and the beginning of trial. As the trial court

noted and the State argues to this Court, the two cases

Simmons cites for his proposition, United States v. Wade,

388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967),

and Gilbert v. California, 388 U.S. 263, 87S. Ct. 1951, 18

L. Ed. 2d 1178 (1967), both involved defendants

participating in post-indictment lineups. In Simmons ' case,

Simmons did not participate in the identifications of

Tressler or his vehicle. In fact, Ms. Renfro's identification

of Tressler's photograph occurred before Simmons was

arrested.

[**40]

"The primary evil to be avoided in the introduction of an out-

of-cowrt identification is a very substantial likelihood of

misidentification.” Grant v. State, 390 So. 2d 341, 343 (Fla.

1980) (citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.

Ed. 2d 401 (1972)). In Grant, this Court held that "a suggestive

confrontation procedure, by itself, is not enough to require

~ exclusion of the out-of-court identification; the confrontation

evidence will be admissible if, despite its suggestive aspects, the

out-of-court identification possesses certain features of

reliability.” 390 So. 2d at 343 (citing Manson v. Brathwaite, 432

U.S. 98, 110, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)).

Therefore, the test for whether a suggestive identification

procedure should be excluded has two prongs: "(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.” Id.

In Neil, the United States Supreme Court held that the factors

a court should consider to [**41] determine the likelihood of

misidentification include

the opportunity of the witness to view {the person or

object] at the time of the crime, the witness’ degree

of attention, the accuracy of the witness’ prior

description of the [person or object], the level of

certainty demonstrated by the witness at the

confrontation, and the length of time between the

crime and the confrontation.

Neil, 409 U.S. at 199-200. These factors have often been applied

to cases involving the identification of defendants, see, e.g.,

Fitzpatrick v. State, 900 So. 2d 495, 518 (Fla. 2005), and this

Court has held that these factors also apply to the identification

of physical evidence. Dennis v. State, 817 So. 2d 741, 760 (Fla.

2002) ("The factors to be considered in the determination of

whether the identification of the vehicle was reliable are all

comparable to factors considered in a witness's identification of

a suspect."); Pittman v. State, 646 So. 2d 167, 171 (Fla. 1994)

(holding that the Neil factors applied to identification of the

defendant's wrecker).

We agree with Simmons that the methods employed by

[**42] law enforcement in this case were highly suggestive

because only [*1119] one photograph and one vehicle were

shown to witnesses, resulting in an affirmative answer to the first

A27 of A45

prong of the out-of-court identification analysis. See Washington

v. State, 653 So. 2d 362, 365 (Fla. 1994) (holding that "the

showing of a single photo [is] unduly suggestive"); Way v. State,

502 So. 2d 1321, 1323 (Fla. 1st DCA 1987) (stating that the "use

of a single photograph is one of the most suggestive methods of

identification possible and is impermissibly suggestive under

most circumstances"). However, we find no error in the rulings

of the tnal court that, considering the totality of the

circumstances, the procedures did not "give rise to a substantial

likelihood of irreparable misidentification," and we answer the

second prong of the out-of-court identification analysis in the

negative concerning both Ms. Renfro's and Mr. Montz's

identifications.

A. Ms. Renfro's Identifications of Tressler and Simmons'

Vehicle

Ms. Renfro testified at trial that she saw a white car slow

down at a red light when a woman tried to climb out, screaming,

"Help me, help me, please." She stated [**43] that the woman

looked directly at her with fear in her eyes. As Ms. Renfro

approached the car, yelling at the driver to stop, the car sped off,

and she got in her van and chased after the car until she lost the

car. Ms. Renfro testified that she thought the car was a Chevrolet

Corsica, but she didn't "really know [her] cars too well, just the

body style reminded [her] of a Corsica.” On December 4, 2001,

three days later, Ms. Renfro wrote a statement describing the

events and people she had witnessed, stating that the woman she

saw was an older woman with "shorter, pinned up" brown hair

and a white T-shirt. That same day, Detective Perdue showed her

one picture of Tressler, which she was able to identify nght

away. Six days later, on December 10, Ms. Renfro met Detective

Perdue at the sheriff's office to view a car parked in the sallie

port, which she identified as the car she had seen on the night of

December 1. She testified at the hearing that she was sure it was

the same car because of the flag on the side window, a patriotic

sticker in the rear window, and the car's blue interior.

A28 of A45

Based on these facts, we agree that showing Ms. Renfro one

picture of Tressler and one vehicle [**44] was "unduly

suggestive." See Washington, 653 So. 2d at 365.

However, . . . a pretrial identification obtained from

suggestive procedures is not per se inadmissible, but

may be introduced into evidence if "found to be

reliable and based solely upon the witness’

independent recollection . . . at the time of the

crime, uninfluenced by the intervening illegal

confrontation."

Id.(quoting Edwards v. State, 538 So. 2d 440, 442 (Fla. 1989)).

Ms. Renfro had an abundance of time and good lighting

conditions to view the victim and the car. She also gave written

descriptions of Tressler and the vehicle she saw the night of

December 1 before viewing the single photograph of Tressler or

Simmons' vehicle in the sallie port. Because of the timing of the

descriptions, we find no error in the trial court's conclusion that

they were the result of Ms. Renfro's independent recollection,

"uninfluenced by the intervening illegal confrontation." Id. We

further conclude, using the Neil factors, that Ms. Renfro had

adequate opportunity to view the woman and car she saw on the

night of December 1; her descriptions were sufficiently accurate;

she was [**45] certain of what she saw on the night of

December 1; and [*1120] the length of time between the crime

and her identifications was only a matter of days. Therefore, any

discrepancies between Ms. Renfro'’s descriptions and what

Tressler and Simmons’ car actually looked like, such as

Simmons’ claim that Ms. Renfro's description of Tressler's hair

was inaccurate, "were the proper subject of cross-examination,

but not sufficient to amount to a bar to admissibility." Dennis,

817 So. 2d at 761.

B. Mr. Montz's Identification of Simmons’ Vehicle

Mr. Montz's identification of Simmons' vehicle did not occur

A29 of A45

until a year after he initially described to Detective Perdue the car

he witnessed, when Detective Perdue showed him a videotape of

Simmons’ car. Mr. Montz then identified the car without any

hesitancy or uncertainty, and stated that he was sure it was the

same car because of its color, the number of doors, the spoked

rims, the amount of dirt, and its two dents. He also recalled the

flag hanging from the car's window. n16 The trial court found

that when applying the Neil factors, the lapse in time between

when Mr. Montz initially saw the car and when he was able to

identify it [**46] would "weigh in favor of finding that there

[was] a substantial likelihood of misidentification." However, the

trial court held that after examining the totality of the

circumstances, there existed no substantial likelihood for

misidentification.

nl16 Simmons argues that Mr. Montz stated that the

vehicle he identified was the same vehicle as the one he

witnessed a year earlier, except for the dents, dirt, wheels,

and trim. However, the record states that Mr. Montz was

sure it was the same car because of its color, the number

of doors, the spoked rims, the amount of dirt, and its two

dents.

First, as with Ms. Renfro, we conclude that Detective

Perdue's showing Mr. Montz a videotape of only one vehicle

constituted an unduly suggestive identification procedure under

the first prong of the out-of-court identification analysis. Further,

we agree with the trial court that the length of time that passed

between Mr. Montz's first viewing of the car and his

identification of it a year later could result in a [**47}

substantial likelihood of misidentification.

However, considering the other Neil factors, we conclude

that the trial court did not err in finding that Simmons has not

satisfied the second prong of the test for whether a suggestive

identification should be excluded. First, Mr. Montz had an

¢

A30 of A45

adequate opportunity to view the car the night he witnessed it

because the area was well lighted and there was nothing blocking

his view. Second, Mr. Montz's degree of attention was high,

judging from the accuracy of his description of the car, and his

level of certainty was high as well.

VII. The Constitutionality of Florida's Death Penalty Statute

In his next issue on appeal, Simmons argues that Florida's

death penalty statute, section 921.141, Florida Statutes (2003),

is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.

Ct. 2428, 153 L. Ed. 2d 556 (2002). We have previously

addressed this contention on direct appeal and have concluded

that there is no basis for declaring Florida's statutory scheme

facially unconstitutional. See, e.g., Lawrence v. State, 846 So. 2d

440, 451 (Fla. 2003), cert. denied, 540 U.S. 952, 124 S. Ct. 394,

157 L. Ed. 2d 286 (2003); [**48] Butler v. State, 842 So. 2d

817, 834 (Fla. 2003). Further, in this case, by use of a special

interrogatory verdict, the jury expressly [*1121] and

unanimously found all of the aggravating factors later relied

upon by the trial court to impose a death sentence. See Ring, 536

U.S. at 609 (finding that the Sixth Amendment right to a jury

trial precludes a procedure by which a sentencing judge alone

and without a jury finds aggravating factors sufficient to invoke

the death penalty); see also Everett v. State, 893 So. 2d 1278,

1282 (Fla. 2004) (rejecting the defendant's Ring claim because

the jury unanimously recommended death, and one of the

aggravating factors was that the murder was committed during

the course of a sexual battery or burglary, crimes of which the

jury also found the defendant guilty), cert. denied, 544 U.S. 987,

125 S. Ct. 1865, 161 L. Ed. 2d 747 (2005); Caballero v. State,

851 So. 2d 655, 663-64 (Fla. 2003) (rejecting a Ring claim on

direct appeal where one of the aggravating circumstances the

judge considered was that the defendant committed the murder

during the commission of a burglary [**49] and kidnapping).

VIII. Aggravators

A3l of A45

In his final argument on appeal, Simmons argues that the trial

court erred in finding the evidence sufficient to establish three

aggravators of a prior violent felony, the murder being

committed during the course of kidnapping and sexual battery,

and HAC.

A. Previous Felony Conviction Involving the Use or Threat

of Violence to the Person

Simmons had previously been convicted of aggravated

assault on a law enforcement officer. Further, section

921.141(5)(b), Florida Statutes (2001), states that an assault

involving the threat of violence qualifies as an aggravating factor

for purposes of imposing the death penalty. The probable cause

affidavit from that case was read to the jury during the penalty

phase of this case, and it stated that Simmons' car appeared to

deliberately veer into oncoming traffic, forcing a police officer

to drive completely off the road to avoid a head-on collision.

Simmons argues that because his prior conviction involved a

drunk driving incident in which a police officer only thought that

Simmons was swerving at him, there was no intent involved and,

therefore, this conviction cannot be considered [**50] an

aggravating factor. However, according to the probable cause

affidavit introduced into evidence, Simmons' actions caused the

officer to feel threatened and to take evasive measures to avoid

a head-on collision. Based on this evidence, the penalty phase

jury found that the State proved this aggravating circumstance.

Similarly, we conclude that this previous felony conviction was

found as an appropriate aggravating factor.

B. Murder Was Committed During the Commission of or

Attempted Commission of Kidnapping and Sexual Battery

Simmons next argues that the evidence does not support the

finding that the murder occurred during the commission of

kidnapping and sexual battery. Simmons was found guilty dunng

the guilt phase of kidnapping and sexual battery using force

likely to cause serious injury based on the evidence of sexual

A32 of A45

injury found on the victim's body. These facts, coupled with the

eyewitness testimony placing Tressler in Simmons’ car

screaming for help the night of December 1, 2001, constitute

substantial competent evidence to support the trial court's finding

that Simmons committed the murder while engaged in a

kidnapping [*1122] and sexual battery under section

921.141(5)(d), Florida Statutes [**51] (2001).

C. HAC

The HAC aggravator applies "only in torturous murders--

those that evince extreme and outrageous depravity as

exemplified either by the desire to inflict a high degree of pain or

utter indifference to or enjoyment of the suffering of another."

Rose v. State, 787 So. 2d 786, 801 (Fla. 2001) (quoting Guzman

v. State, 721 So. 2d 1155, 1159 (Fla. 1998)). Further, this Court

has previously "upheld HAC in beating deaths” presenting

similar circumstances to those involved herein. Lawrence v.

State, 698 So. 2d 1219, 1222 (Fla. 1997); see also Dennis, 817

So. 2d at 766 (trial court's finding of HAC was supported by

evidence that the victims suffered skull fractures as the result of

a brutal beating and that the victims were conscious for at least

part of the attack); Bogle v. State, 655 So. 2d 1103, 1109 (Fla.

1995) (trial court's finding of HAC was supported by evidence

that the victim was struck seven times in the head and the

medical examiner testified that the victim was alive at the time

of the infliction of most of the wounds); Wilson v. State, 493 So.

2d 1019, 1023 (Fla. 1986) [**52] (trial court's finding of HAC

was supported by evidence that victim was brutally beaten while

attempting to fend off blows to the head before he was fatally

shot).

In this case, Simmons argues that because it is possible that

the first blow to Tressler's head rendered her unconscious, HAC

should not apply. However, Dr. Gulino, the medical examiner,

described numerous wounds that, in his opinion, were inflicted

prior to Tressler's becoming unconscious. Further, Tressler

suffered approximately twenty-five defensive wounds and other

A33 of A45

nonfatal stab wounds and blunt trauma injuries. Additionally, Dr.

Gulino unequivocally stated that the injury to Tressler's anus

occurred prior to her death because of the extensive bruising and

laceration. Also, Ms. Renfro testified that Tressler appeared

terrified when she saw her in Simmons ' car the night she was last

seen. Based upon all of this evidence, we uphold the trial] court's

finding of HAC as an aggravating circumstance.

[X. Proportionality

The Court performs a proportionality review to prevent the

imposition of "unusual" punishments contrary to article I, section

17 of the Florida Constitution. See Tillman v. State, 591 So. 2d

167, 169 (Fla. 1991). [**53] "The death penalty is reserved for

‘the most aggravated and unmitigated of most serious crimes." "

Clark v. State, 609 So. 2d 513, 516 (Fla. 1992) (quoting State v.

Dixon, 283 So. 2d 1, 7 (Fla. 1973)). In deciding whether death is

a proportionate penalty, we consider the totality of the

circumstances of the case and compare the case with other

capital cases. See Urbin v. State, 714 So. 2d 411, 417 (Fila.

1998). However, this proportionality review "is not acomparison

between the number of aggravating and mitigating

circumstances.” Sexton v. State, 775 So. 2d 923, 935 (Fla. 2000)

(quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990))

In this case, the trial court found three aggravating

circumstances: (1) A previous conviction of a felony involving

the use or threat of violence to a person; (2) the murder was

committed in the course of a kidnapping and sexual battery; and

(3) HAC. The court found no statutory mitigators, but did find

several nonstatutory mi tigators that were given either some or

minimal weight. This Curt fsas stated [*1123] that HAC is one

of the most serious ageravators in the statutory [**54]

sentencing scheme. See Morton v. State, 789 So. 2d 324, 331

(Fla. 2001); Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999).

Recently, in Boyd v. State, 910 So. 2d 167 (Fla. 2005), cert.

denied, 126 S. Ct. 1350, 164 L. Ed. 2d 63 (2006), this Court

concluded that the death penalty was proportionate where the

Asad of A45

trial court considered and weighed two aggravating factors (HAC

and that the murder was committed while the defendant was

committing or attempting to commit kidnapping and sexual

battery) against one statutory mitigator (that the defendant had no

significant prior criminal history, which the trial court afforded

medium weight) and five nonstatutory mitigators (including that

the defendant came from a good family and showed remorse for

his actions). See also Dessaure v. State, 891 So. 2d 455, 472-73

(Fla. 2004) (death sentence was proportionate where, although

the rape kit was negative, the defendant inflicted a total of fifty-

three wounds, including multiple lethal scab wounds to the torso

and neck; the trial court found that the aggravators of a previous

conviction of a violent felony, prior felony [**55] conviction,

that the murder was committed during a burglary, and HAC

outweighed the "age" statutory mitigator and the nonstatutory

mitigating factors of caring parents, family background, capacity

to form personal relationships, and behavior in court). In light of

the totality of the circumstances of this case as compared to the

facts of other capital cases, we find the death penalty to be

proportionate.

CONCLUSION

For the reasons expressed above, we affirm Simmons'

convictions and sentences, including the sentence of death.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS,

CANTERO, and BELL, JJ., concur.

PARIENTE, C.J., specially concurs with an opinion, in which

ANSTEAD and CANTERO, JJ., concur.

WELLS, J., concurs with an opinion.

BELL, J., specially concurs with an opinion.

QUINCE, J., concurs in result only.

CONCUR BY: PARIENTE

A35 of A45

CONCUR: PARIENTE, C.J., specially concurring.

I concur in the majority opinion, but write separately on Issue

IV, which concerns the exclusion of expert testimony on

eyewitness identifications. Twenty-three years ago, this Court,

addressing one of six guilt-phase claims in a capital appeal,

issued what has become the seminal [**56] opinion on this issue

in Florida. App!yving an "abuse of discretion" review standard, we

affirmed the exclusion of expert testimony on the reliability of

eyewitness identification. See Johnson v. State, 438 So. 2d 774,

777 (Fla. 1983). We stated:

A trial court has wide discretion concerning the

admissibility of evidence and the range of subjects

about which an expert can testify. Expert testimony

should be excluded when the facts testified to are of

such nature as not to require any special knowledge

or experience in order for the jury to form its

conclusions. We hold that a jury is fully capable of

assessing a witness’ ability to perceive and

remember, given the assistance of cross-

examination and cautionary instructions, without

the aid of expert testimony.

Id. (citations omitted).

In so holding, we signaled to tral judges that expert

testimony in this area is unnecessary [*1124] because the

assessment of eyewitness identification is within the common

experience of jurors. With one exception, in every case since

Johnson in which we have addressed this issue, the trial courts

excluded expert testimony on the factors affecting eyewitness

identification [**57] testimony, and this Court affirmed, relying

on the final sentence from Johnson excerpted above, either alone

or within the longer passage. See McMullen v. State, 714 So. 2d

368, 370 (Fla. 1998); Lewis v. State, 572 So. 2d 908, 911 (Fla.

1990); Hooper v. State, 476 So. 2d 1253, 1257 (Fla. 1985). In

A36 of Ads

addition, this Court relied on the determination in Johnson that

juries do not need "the aid of expert testimony" to assess

eyewitness identification testimony in affirming the refusal of the

trial court to authorize payment of costs for an indigent

defendant to retain an expert. See Espinosa v. State, 589 So. 2d

887, 893 (Fla. 1991), rev'd on other grounds, 505 U.S. 1079, 112

S. Ct. 2926, 120 L. Ed. 2d 854 (1992). In the one case reviewed

by this Court in which expert testimony in this area was

admitted, we summarily upheld the trial court's limitation on its

scope, again relying on Johnson. See Rogers v. State, 511 So. 2d

526, 530 (Fla. 1987).

In the years that have passed since we stated our belief in

1983 that jurors can accurately assess eyewitness identifications

without the aid of expert [**58]} testimony as they do most other

evidence, we have learned that quite the opposite is often true.

For example, common sense would lead us to believe that greater

certainty by an eyewitness in making an_ identification

corresponds to greater accuracy. Yet research shows that a

witness's degree of certainty correlates weakly, at best, with the

accuracy of the identification. See Elizabeth Loftus & James

Doyle, Eyewitness Testimony: Civil and Criminal § 3-12, at 67

(3d ed. 1997) ("The consensus of the literature that deals with

[whether eyewitness confidence is an indication of eyewitness

accuracy] seems to indicate that eyewitness confidence is not a

very good indicator of eyewitness accuracy."). In fact, the

"certainty an eyewitness expresses in his identification can be a

misleading indicator of the identification's accuracy." Gary L.

Wells, Eyewitness Identifications: Scientific Status, in Science

In the Law: Social and Behavioral Science Issues 391, 412

(David L. Faigman et al. eds., 2002). Other features of

eyewitness unreliability, such as difficulty identifying persons of

another race, have also become well established. See Loftus &

Doyle, supra, § 4-9, at [**59] 86; Wells, supra, at 404. A 2002

report by the Illinois Governor's Commission on Capital

Punishment reflects that "(t]he fallibility of eyewitness testimony

A37 of A45

has become increasingly well-documented in both academic

literature and in courts of law." Report of the Governor's

Commission on Capital Punishment 31 (2002), available at

http://state.il.us/defender/report.pdf. Similarly, the North

Carolina Actual Innocence Commission organized by Chief

Justice I. Beverly Lake, Jr., of the North Carolina Supreme Court

"chose eyewitness identification as its first topic of study because

research has identified misidentification as the leading factor in

the wrongful conviction of those exonerated nationally by DNA

evidence." Christine C. Mumma, The North Carolina Actual

Innocence Commission: Uncommon Perspectives Joined by a

Common Cause, 52 Drake L. Rev. 647, 652 (2004).

Section 90.702, Florida Statutes (2005), titled "Testimony by

experts,” provides:

If scientific, technical, or other specialized

knowledge will assist the tner of [*1125] fact in

understanding the evidence or in determining a fact

in issue, a witness qualified as an expert [**60] by

knowledge, skill, experience, training. or education

may testify about it in the form of an opinion;

however, the opinion is admissible only if it can be

applied to evidence at trial.

Focusing on this provision, Justice Anstead wrote separately in

McMullen to urge trial courts to admit expert testimony on

eyewitness identifications when such testimony would be helpful

to the jury:

In this case I would approve of the discretionary

use of expert testimony about psychological factors

that may affect eyewitness identification . . . to give

effect to the intent expressed in section 90.702.

Further, . . . while the question of admissibility of

such expert testimony should be left to the sound

discretion of the tnal judge, 1 would attach the...

caveat that the trial judge must exercise his or her

AIW*Raf AAS

discretion in furtherance of section 90.702's

_ “helpfulness” standard. In considering a proffer of

such evidence the trial court should be aware that it

has the discretion to admit the evidence. It should

be careful in assessing the qualifications of the

expert presented as well as in making an evaluation

of the helpfulness of the proffered testimony

compared to the risk that [**61] it may cause juror

confusion.

714 So. 2d at 380-81 (Anstead, J., concurring in part and

dissenting in part).

Since McMullen, several courts have recognized that the

research results fall outside common assumptions about

eyewitness identification testimony. For example, in United

States v. Mathis, 264 F.3d 321, 340-42 (3rd Cir. 2001), the

United States Court of Appeals for the Third Circuit concluded

that the jury would have been illuminated by proffered expert

testimony concerning the effect of prior viewings of a suspect's

image, the poor correspondence of a witness's confidence to the

reliability of an identification, and the effect of weapon focus.

The Third Circuit concluded that "testimony of this sort, with its

accompanying level of scientific detail, would not simply

duplicate jurors’ intuitions or common sense, and such principles

seem difficult to establish indirectly through cross-examination."”

Id. at 341. For this reason, Mathis held that the trial court abused

its discretion in excluding expert testimony on the "double

identification" effect, as well as on the relationship between

eyewitness confidence and [**62] accuracy and the effect of the

presence of a weapon on accuracy. Id. at 341-42.

Similarly, the United States Court of Appeals for the Sixth

Circuit, applying an abuse of discretion standard, ruled that a

trial court erred in excluding expert testimony on eyewitness

identifications without first determining whether the testimony

would be helpful to the jury. See United States v. Smithers, 212

A39 of A45

F.3d 306, 315 (6th Cir. 2000). The court stated that the trend in

favor of admission of expert testimony is "not surprising in light

of modern scientific studies which show that, while juries rely

heavily on eyewitness testimony, it can be untrustworthy under

certain circumstances." Id. at 311-12. The Sixth Circuit cited a

"plethora" of authorities supporting this view, including one

suggesting that "jurors are unaware of several scientific

principles affecting eyewitness identifications’ . . . [and], because

many of the factors affecting eyewitness impressions are counter-

intuitive, many jurors' assumptions about how memories are

created are actively wrong.” Id. at 312 n.1 (citation omitted)

(quoting Roger V. Handberg, [**63] Expert Testimony on

Eyewitness [*1126] Identification: A New Pair of Glasses for

the Jury, 32 Am. Crim. L. Rev. 1013, 1022 (1995)).

In Smithers, the Sixth Circuit held that expert eyewitness

identification testimony "should be admitted . .. when there is no

other inculpatory evidence presented against the Defendant with

the exception of a small number of eyewitness identifications."

212 F.3d at 317. The Georgia Supreme Court has reached a

similar conclusion:

Where eyewitness identification of the defendant 1s

a key element of the State's case and there is no

substantial corroboration of that identification by

other evidence, trial courts may not exclude expert

testimony without carefully weighing whether the

evidence would assist the jury in assessing the

reliability of eyewitness testimony and whether

expert eyewitness testimony is the only effective

way to reveal any weakness in an eyewitness

identification.

Johnson v. State, 272 Ga. 254, 526 S.E.2d 549, 552-53 (Ga.

2000) (footnote omitted).

Mistaken identity is the chief cause of wrongful convictions.

A40 of A45

See Edward Connors et al., Convicted by Juries, Exonerated by

[**64] Science: Case Studies in the Use Of DNA Evidence to

Establish Innocence After Trial (1996) (finding that twenty-four

out of twenty-eight cases of postconviction exoneration based on

DNA testing were due in great part to mistaken eyewitness

identifications); Connie Mayer, Due Process Challenges To

Eyewitness Identification Based On Pretrial Photographic

Arrays, 13 Pace L. Rev. 815, 819 (1994) ("[S]tudies have shown

that approximately fifty percent of those wrongly convicted were

convicted based on eyewitness identification evidence."). By

bringing to light research findings on factors affecting an

eyewitness identification, expert testimony can assist the trier of

fact, the criterion for admission of expert testimony under section

90.702.

Our decision in Johnson does not bar the introduction of

expert testimony on eyewitness identifications. It is now clear

that such testimony can assist the jury in assessing guilt in certain

cases, especially where, as some courts have recognized, the only

inculpatory evidence is eyewitness testimony. Accordingly, I

encourage trial courts to truly exercise their discretion as to the

admission of this testimony. Trial judges [**65] should

consider, as they do with other expert testimony, whether the

testimony would assist the jury, i.e., whether it would introduce

relevant considerations as to accuracy that could not otherwise

be brought to light via cross-examination, jury instructions, or

the jurors’ common sense. As the research demonstrates and

courts increasingly recognize, expert testimony in this area can

be a powerful tool in helping the criminal justice system achieve

its goal of convicting the guilty while acquitting the innocent.

ANSTEAD and CANTERO, JJ., concur.

WELLS, J., concurring.

I concur in the majority opinion. I write separately to

comment upon Chief Justice Pariente's concurring opinion in

respect to expert opinion on eyewitness identification, with

which I do not agree.

A41 of A45

Rather, I agree with the decision in United States v. Smith,

122 F.3d 1355 (11th Cir. 1997), approving United States v.

Thevis, 665 F.2d 616 (Sth Cir. 1982). In Thevis, the court stated

that "[t]o admit such testimony in effect would permit the

proponent's witness to comment on the [*1127] weight and

credibility of opponents’ witnesses and open the door to a barrage

of marginally [**66] relevant psychological evidence." Id. at

641. I have additional serious concerns about what makes a

person a qualified expert who can present testimony about

whether a particular eyewitness is reliable. Furthermore, it is my

view that expert testimony on the general credibility of

eyewitness testimony only serves to cast general doubt as to

witnesses not relevant to the specific situation of a particulah

trial. Again, as the court said in Thevis, "the problems of

perception and memory can be adequately addressed in cross-

examination and . . . the jury can adequately weigh these

problems through common-sense evaluation.” Id.

Moreover, such testimony in Florida courts would have to be

Frye n17 tested, similar to what we required in Hadden v. State,

690 So. 2d 573 (Fla. 1997). Frye testing raises additional

questions. How is such an expert's opinion peer reviewed? How

does the opinion become generally accepted? What is the

relevant scientific community?

nl7 Frye v. United States, 54 App. D.C. 46, 293 F.

1013 (D.C. Cir. 1923).

[**67]

An excellent summary of the case law on this subject is

gathered in Challenge to Eyewitness Identification Through

Expert Testimony, 35 Am. Jur. Proof of Facts 3d 1 (1996 &

Supp. 2005), by The Honorable D. Duff Mckee.

BELL, J., specially concurring.

| agree with Justice Pariente that there is no per se rule of law

A42 of A45

against the admission of eyewitness expert testimony. I also

agree with her that guidance should be given to trial courts on

how to exercise their discretion in deciding whether to admit

such testimony. In an effort to provide tangible guidance, | offer

four guiding principles and five factors a trial court should

consider when determining whether or not eyewitness expert

testimony should be admitted in any particular cnminal case. n18

n18 I draw these principles and factors from Florida

law as well as from the synthesis of case law from across

this nation by The Honorable D. Duff McKee in his

excellent article, Challenge to Eyewitness Identification

Through Expert Testimony, 35 Am. Jur. Proof of Facts 3d

1] (1996 & Supp. 2005). As does Justice Wells, commend

Judge McKee's work to any judge or trial attorney

confronting this important question.

[**68]

Four Guiding Principles

1. Whether to allow expert testimony on the issue of

eyewitness identification is left to the sound

discretion of the trial judge.

2. As with other witnesses, evaluating the credibility

and reliability of eyewitnesses is generally for the

jury to determine, without the help of eyewitness

experts. Effective cross-examination, presentation

of contradictory evidence, sound argument of

counsel, and jury instructions are all effective,

efficient and generally sufficient means of assisting

the jury in properly fulfilling its critical function as

fact-finder.

3. Expert testimony on eyewitness identification

will be necessary in very limited circumstances.

A43 of A45

4. If eyewitness expert testimony is deemed

necessary, it must be "Frye-tested." n19 The expert's

opinion must rest upon research and principles that

are generally accepted in the relevant scientific

community.

nl9 Frye v. United States, 54 App. D.C. 46, 293 F.

1013 (D.C. Cir. 1923). "Florida courts follow the test set

out in [Frye]}." Castillo v. E.1. Du Pont de Nemours & Co.,

Inc., 854 So. 2d 1264, 1268 (2003)). "This test requires

that the scientific principles undergirding this evidence be

found by the trial court to be generally accepted by the

relevant members of its particular field." Id. (quoting

Hadden v. State, 690 So. 2d 573, 576 (Fla. 1997)). "We

have recently defined ‘general acceptance’ to mean

acceptance by a clear majority of the members of the

relevant scientific community, with consideration by the

trial court of both the quality and quantity of those

opinions." Hadden, 690 So. 2d at 576 n.2 (citing Brim v.

State, 695 So. 2d 268 (Fla. 1996).

[**69]

[*1128] Factors to Consider in a Particular Case

If all of the following factors are present in a particular case

and the expert testimony is deemed admissible under Frye, the

tesumony should be admitted if:

(a) Identification of the defendant is a critical,

disputed issue in the case; and

(b) The state's case essentially rests upon the

credibility of eyewitness testimony; and

(c) There is little or no other evidence to

independently establish that the defendant 1s the

person who committed the cnme; and

A44 of A45

(d) The expert testimony addresses a specific

circumstance of the eyewitness identification and

provides a particujarized explanation which will

assist the jury in sorting out the facts; and

(e) The defendant maintains that he was not present

when the offense was committed and advances an

alibi.

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IN THE CIRCUIT COURT OF THE

FIFTH JUDICIAL CIRCUIT, IN AND

FOR LAKE COUNTY, FLORIDA

STATE OF FLORIDA,

Vv. Case No.: 01-CF-2577

ERIC L. SIMMONS,

Defendant.

ORDER DENYING MOTION TO SUPPRESS

DEFENDANT'S STATEMENTS

This matter came on for evidentiary hearing on the

Defendant’s three motions to suppress on the following four

dates: January 10, 2003; February 5, 2003; February 14, 2003;

and March 12, 2003. The Court has read the motions and

attachments thereto, considered the testimony presented and has

read the complete transcripts from the four days of hearing, heard

the argument of counsel, considered the authority submitted and

cited by counsel, and has been otherwise fully advised in the

premises.

The thrust of the Defendant’s Motion to Suppress

Statements is that the circumstances surrounding the Lake

County Sheriff's Office’s detectives’ request for Mr. Simmons

to accompany them to the Sheriffs Office for a consensual

interview were so intimidating that the interview was not

voluntary on Mr. Simmons part. If the Court were to accept the

Defendant’s position that the interview conducted at the Lake

County Sheriff's Office was a custodial interrogation, the

functional equivalent of an arrest, then the relevant inquiry

would become whether or not law enforcement had probable

Bl of B15

cause to detain the Defendant.' Thus, the Court has reviewed the

testimony presented to determine 1) whether the Defendant was

restrained to point of being effectively under arrest, and, if so; 2)

whether there was probable cause to arrest the Defendant. For

ease of reference, the Court has reviewed the transcribed

testimony and cites to the record as follows: TI references the

hearing transcript of January 10,2003; T2 references the hearing

transcript from February 5,2003; T3 references the hearing

transcript of February 14,2003, and T4 references the hearing

transcript of March 12, 2003.

Detective Purdue of the Lake County Sheriff s Office was

the lead investigator on a case involving the homicide of Debbie

Tressler. He testified to the events leading up to and culminating

in the Defendant’s arrest. The body of Deborah Tressler was

found late on the morning of Monday, December the 3, 2001.

(T1 at page 32.) Monday was more or less spent attempting to

identify the victim and to identify the cause of death. (T1 at page

34.) The victim was identified by her fingerprints on Tuesday

morning. (T1 at page 35.) The investigation began on Tuesday

with officers locating the victim’s address, a trailer in Sorrento,

and her place of employment, a laundromat in Sorrento. (T1 at

page 35.) Through the following days, the officers spoke to

witnesses who knew the victim and the witnesses described the

physical attributes of the victim’s boyfriend. (T1 at page 36.)

They described the boyfriend’s height, weight, color of hair,

color of eyes, and that he drove a white car. (T1 at page 36.) One

' Although it is the position of the Sheriff's detectives and the State that the Defendant

was not under arrest, the detectives had taken an extra precaution of telling the

Defendant of his constitutional right to remain silent and his right to counsel.

Additionally, the Defendant was read and asked to sign a formal written Warver of his

Miranda rights. The document was entered into evidence as State’s Exhibit two to the

hearing conducted January 10, 2003, and Detective Purdue testified to the reading of

the Miranda warning and the signing of the waiver at pages 55-57 of the hearing

transcript. The Defendant has raised no argument as to the validity of the

administration of the Miranda warning, nor has he raised any argument that he

invoked his right to remain silent or be assisted by counsel during the interview prior

to his arrest.

B2 of B15

witness described the car as a white Ford Taurus with a black

stripe or black molding down the side. (T1 at page 36.) The

officers were interested in this boyfriend because one witness,

Susan Vela, and her son Jose Rodriguez, said the victim had

been in an altercation with her boyfriend the Thursday or Friday

before the homicide. (T1 at page 37.)

One witness, a young man who worked at a mower shop,

thought he had met the victim’s boyfriend at a bar. (T1 at 41.)

When speaking of the encounter, the witness said the man he was

talking to asked, “Have you ever been in jail? You look

familiar.” The witness remembered the man’s first name was

Eric. (T1 at 41.)

The police had some information that the boyfriend may

have been in jail. Based upon this information, the police

collected a series of inmate release photographs and showed

them to some of the witnesses, but the witnesses could not

identify the man they knew as Debbie Tressler’s boyfriend. (T1

at 41.) The original batch of photographs was of prison releasees

with blond hair and blue eyes and did not include the Defendant.

(T1 at 42.) Later in the week, when the police had the name

“Eric,” they increased the search of photographs and the second

batch of approximately 60 photographs included the Defendant’s

picture. (T1 at 42.) The second batch of photographs was shown

to Jose Rodriguez. He positively identified the Defendant as the

man he saw with the victim the last time he saw Deborah

Tressler alive, Saturday, December 1, 2001 between 11:30 p.m.

and midnight. (T1 at 38, 46 and 47.) Three witnesses identified

the Defendant from that second batch of photographs.

Once the police had the name Eric Simmons and a

positive identification, they ran a background check and

determined he had been arrested for abusing a former spouse or

girlfriend. (Tl at 48.) They also located rental address for Eric

Simmons, 1306 Stowe Avenue in Movat Dora. (T1 at page 45.)

Neighbors were interviewed and said they had seen the white car,

the victrm and the Defendant at that address on numerous

occasions, including the Saturday night Debbie Tressler was last

B3 of BIS

seen alive. (T1 at page 45.) The police also ran auto track on Eric

Simmons and discovered a Ford Taurus was registered to the

Simmonses. (T4 at page 43.)

Law enforcement also thought another incident that had

been reported in Sorrento might be related to the homicide. On

the Saturday night, December first, near midnight, witnesses

advised that they were at the parking lot of a Circle K

convenience store at the intersection of Route 437 and Route 44.

(T1 at page 38.) This intersection is a little more than three miles

from the laundromat. (T1 at page 44.) These witnesses identified

a white car pulling up to a red light and a woman trying to escape

the car through the front passenger’s door and screaming for

assistance. (T1 at page 38.) One witness tried to help the lady in

the car and identified the lady by physical stature and saw her

face. (T1 at page 39.) This witness, Sherri Renfro, at a later

interview, after the homicide victim had been identified, was

shown a single picture of Debbie Tressler and identified the

woman in the picture as the same woman she had seen trying to

escape from the car on Saturday night. (T1 at page 39.) Detective

Purdue related that, according to the witness, the woman in the

car was screaming, “Please help me,” and as she tried to get out,

the witness said the driver of the vehicle, described as a large

white male, reached over and grabbed the victim by the clothing,

pulled her into the car and accelerated through the traffic light.

(Tl at page 40.) Detective Purdue testified that the witness

described the car as a white vehicle with a black stnpe down the

side, possibly molding, and that it was a four-door Corsica-type

vehicle, but said she was not sure of the make and model. (T1 at

page 40.)

? Much argument has been presented by both the Defendant and the State regarding

the car described by this witness, Shern Renfro. The written statement provided by

Ms. Renfro states: “I Sherri Renfro on 12-2-2001 at around midnite [sic] while

standing at the pay phone at Circle K on the corner of 437 and 44 witnessed a white

4 door car | believe was a Corsica pull up to the lite [sic] at that intersection.” Defense

counsel has taken the position that this statement was an unequivocal identification of

a Corsica. Detective Purduc has testified that the witness was not completely sure of

B4 of B15

The preceding information was known to the officers

before they made contact with the Defendant at his parents’

home in Pine Lakes on Friday, December 7, 2001. Detective

Purdue testified to the nature of the encounter with the Defendant

at his parents’ residence on January 10, 2003. However, a

discrepancy in what Detective Purdue testified to regarding the

Defendant being handcuffed, and information that had previously

been provided in a deposition of one of the other officers,

prompted the Assistant State Attorney to investigate and clanfy

what transpired at the Pine Lakes residence. A subsequent

hearing was held February 5, 2003, (T2), to expound on this

point, and additional testimony was also elicited on February 14,

2003, (T3) regarding the Defendant being handcuffed.

According to Detective Purdue, he and Detective Adams

originally went to the residence in Pine Lakes that had been

identified as Eric Simmons’ parents’ residence on the afternoon

of December 7, 2001. (T1 at page 50.) Mr. Simmons’ car, a

white 1991 four-door Ford Taurus, was present, but Mr.

Simmons was not so the detectives left and were en route to the

Stowe Avenue, Mount Dora address. (T1 at page 50.) While

driving to Mount Dora, the detectives were called via radio and

advised that Eric Simmons had arrived at the residence in Pine

Lakes. (T1 at page 50.) The testimony showed that the detectives

were the last to arrive back at the Pine Lakes residence and that

many other officers, between fifteen and thirty, had already

arrived at the residence when the Defendant arrived. (T1 at page

70; T3 at page 13.) Additionally, a helicopter was flying

overhead for surveillance. (T3 at page 28; TI at page 70.)

Other officers, about ten or fifteen of them including

Captain Gregory and Major Gnann, had gone to the Defendant's

the make and model, but that it was a Corsica-type vehicle. Neither party called Ms

Renfro to the stand to ask her what she meant in her statement. Detective Purdue has

repeatedly tesufied that the Chevy Corsica and Ford Taurus are similar in design. (T4

at pages 30-33.)

BS of B15

~~.

uncle’s home. (T3 at page 5.) The officers were looking for Eric.

His uncle, Larry Dean Simmons, told them Eric worked with his

dad, and then gave them directions to Eric’s father’s property.

(T3 at page 7.) Eric’s father, Terry Simmons is Larry Simmons’

brother. (T3 at page 5.) The officers and Larry Simmons went to

the property in Pine Lakes. Eric Simmons and his father were not

on the property when the officers and Larry Simmons arrived.

(T3 at page 8.) Eric Simmons then arrived at the residence

driving an ATV. (T1 at page 50.) He was accompanied by his

father who was on a tractor. (T1 at page 50.) Detectives Purdue

and Adams had advised the officers present not to arrest Eric

Simmons or do anything to him, just to leave him alone until

they arrived. (T1 at page 51.)

When the detectives returned, the people that were at the

scene were talking to Eric Simmons’ father and Enc was

standing by the four-wheeler. (T1 at page 51.) The other officers

at the scene were not having any contact with the Defendant. (T1

at page 87.) Detective Purdue described the residence as being in

a tural area that backs onto state property, pretty much

“wilderness.” (T1 at page 87.) No one was standing around the

Defendant. (T1 at page 88.) Detectives Purdue and Adams

approached the Defendant. (T1 at page 51.) They were dressed

in shirts and ties and were unarmed. (Tl at page 87.) They

walked with Eric to a pine tree not too far away, sat down under

the tree to talk to him and showed him a picture of Deborah

Tressler. (T1 at page 51.) They asked if he knew her, to which he

replied yes, and they told him she had been murdered. (T1 at

page 51.) Detective Purdue’s uncontradicted testimony was that

he asked Eric to come back to the sheriff's office to talk to the

detectives and Eric said, “Yeah, I will come back and talk with

you.” (T1 at page 51.) Detective Purdue further testified that the

Defendant was not threatened to come to the sheriff's office, nor

was he offered anything. (T 1 at pages 52-53.) The Defendant was

told he was not under arrest. (T1 at page 53.) The Defendant was

to be driven to the sheriff's office in a marked cruiser, and was

told that if he needed a ride home after the interview in Tavares

B6 of B15

a ride would be provided. (T3 at page 105.)

The testimony varies regarding what happened once the

interview under the tree was concluded and the Defendant had

agreed to go to the sheriffs office in Tavares. Originally,

Detective Purdue testified that the Defendant was not

handcuffed. (Tl at page 54.) After the first hearing on the

motions to suppress, the Assistant State Attorney advised

Detective Purdue that there was a deposition indicating that the

Defendant had been handcuffed while being transported. The

prosecution also notified opposing counsel and the Court of the

inconsistency. The Court allowed additional hearing time on the

issue. In the subsequent hearing detective Purdue explained he

never saw Mr. Simmons handcuffed. (T2 at page 34.)

The testimony on the issue of the Defendant being

handcuffed varied from Larry Simmons’ recollection that the

Defendant was handcuffed at the tree by an officer in plain

clothes and then escorted to a marked car seventy-five or eighty

yards away, (T3 at page 9) to Terry Simmons’ recollection that

his son was cuffed at the four-wheeler, not the tree, by an officer

in plain clothes. (T3 at page 16.) Officer Blackman was the

deputy who transported the Defendant to the sheriff's office. (T2

at page 7.) His recollection was that he walked about 100 yards

with the Defendant toward the cruiser. (T2 at page 7.) When they

got to the vehicle the deputy testified he advised the Defendant

that he would be transporting him to the sheriff's office to speak

with detectives, and advised that he needed to place handcuffs on

him for officer safety. (T2 at page 8.) Deputy Blackman testified

that he told the Defendant that he was not under arrest. (T2 at

page 8.) This testimony was partially corroborated by Deputy

Jones who testified Deputy Blackman handcuffed the Defendant

at the marked car and heard Deputy Blackman say, “I need to

handcuff you for officer safety.” (T2 at page 24.)

The Defendant was placed in the back of the cruiser. (T2

at page 8.) The doors in the back do not open from the inside.

(T2 at page 8.) Once at the sheriffs office, Deputy Blackman

testified he immediately let the Defendant out of the car and took

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off the handcuffs. (T2 at page 9.) The deputy escorted the

Defendant upstairs to the interview room. (T2 at page 9.) They

entered the building through the side entrance, an employee

entrance, that the deputy always uses because it is more

convenient. (T2 at page 9.) The entrance is secured by a keypad

lock. (T2 at page 10.) Once at the interview room on the third

floor, the Defendant asked deputy Blackman how he was going

to get home and the deputy told him that the sheriff's office

would provide him with a way home. (T2 at page 11.)

Deputy Purdue described the interview room as being

approximately ten feet by ten feet with room for three people to

sit comfortably. (T1 at page 54.) Detective Adams and Detective

Purdue conducted the interview. The interview was taped. (T1 at

page 55.) The Defendant was read his Miranda warnings, and

also signed a wntten Miranda Waiver. (T1 at page 55.) The

formal interview began at 4:40 p.m. as reflected on the written

waiver. (T1 at page 55.) Detective Purdue indicated that he and

Detective Adams were hungry and sent out for food and told the

Defendant they would order for him as well. (T1 at page 58, 60.)

They ate Big Macs and french fries, and during the several-hours

interview the Defendant was allowed rest room breaks if he

wanted them. (T1 at page 58.)

Detective Adams and Purdue took turns conducting the

interview, and on one of his breaks, Detective Purdue walked

downstairs where fellow officers were executing a search warrant

on the Defendant’s vehicle. (T1 at page 58.) Detective Purdue

was shown blood that had been found in the car. (T1 at page 59.)

He retumed to the interview room and told the Defendant, “Eric,

we just found blood in your car.” (T1 at page 59.) Detective

Purdue testified that he asked the Defendant what he thought

about the find, and the Defendant replied, “Well, if you found

blood in my car, I guess I must have did it.” (T1 at page 59.)

After that, the Defendant was placed under arrest. (T1 at page

59.)

The Defendant contends that the interview was not

consensual, and all the statements should be suppressed. In

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support of this proposition the Defendant has cited Hayes v.

Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985).

In Hayes, the police concluded that the defendant was the

principal suspect in a burglary-rape case and arrived at his home

and spoke to him on the front porch. Id. at 812. When Hayes

expressed reluctance to voluntarily accompany the officers to the

station for fingerprinting, one of the investigators explained they

would arrest him. Id. According to the investigator, Hayes

blurted out that he would rather go with the officers than be

arrested. Id. Hayes was arrested and convicted, and the District

Court of Appeal affirmed the conviction while finding the

consent given by Hayes was questionable at best. Id. at 813. The

court also expressly found that the officers did not have probable

cause to arrest Hayes until after they had his fingerprints. Id. The

Supreme Court overturned Hayes’ conviction citing the holding

in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d

676 (1969): “None of our later cases have undercut the holding

in Davis that transportation to and investigative detention at the

station house without probable cause or judicial authorization

together violate the Fourth Amendment.” Hayes at 814.

A simple factual distinction between Hayes and the

instant case is that, according to the unrebutted’ testimony, the

Defendant never expressed any reservation in accompanying the

detectives to the sheriff's office. Further, the Defendant in this

cause was repeatedly told that he not under arrest. The gravamen

of the Hayes’ holding would still dictate a different result for the

instant case even if the Court were to find the interview was not

consensual in that the officers herein had probable cause to arrest

the Defendant when they approached him at his parents’

residence on December 7, 2001, thus the detention was

constitutional whether it was consensual or not. However, the

Court specifically finds that the interview was voluntary on the

Defendant’s part.

* The Defendant did not testify.

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Although defense counsel has zealou

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