FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D16-3290

_____________________________

WILLIE ALLEN LYNCH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County.

Mark Borello, Judge.

December 27, 2018

PER CURIAM.

A jury convicted Willie Allen Lynch of selling crack, and the 

court sentenced him to eight years in prison. Lynch now appeals,

raising a host of issues. We affirm.

I.

In late 2015, undercover officers bought crack cocaine from 

someone who called himself “Midnight.” The officers later 

identified Lynch as the seller, and the State brought charges. At 

trial, Lynch’s sole defense was misidentification—that he was not 

the man known as Midnight. To prove otherwise, the State 

introduced testimony of the two undercover officers, both of whom 

positively identified Lynch as the man who sold them crack.
2

The officers routinely drove into high-crime areas, posing as 

drug buyers looking for drug sellers. As they drove one night, a 

man abruptly flagged them down, identified himself as Midnight, 

and asked if they “were good.” One undercover officer responded 

that he needed “$50 hard,” meaning $50 worth of crack. After 

Midnight retrieved crack from a nearby building, the officer gave 

Midnight some money, and Midnight gave the officer crack.

Typically, the officers captured transactions like these using 

a special recording system. But because Midnight had approached 

them so suddenly, the officers were unable to activate the system. 

One officer, though, used his cell phone to surreptitiously snap 

photos of Midnight leaning into the car. Then, after completing the 

transaction—and to avoid revealing themselves as undercover 

operatives—the officers left without arresting Midnight. 

Sometime later, the officers sent the cell phone photos, along 

with the name Midnight, to a crime analyst. In response, that 

analyst provided the officers Lynch’s name and photo. The analyst 

told the officers Lynch was a possible match to the man in the cell 

phone photos, and the officers promptly concluded that Lynch and 

Midnight were indeed one and the same. 

At a pre-trial deposition, the crime analyst testified about the 

process that led her to make the match. She said she was emailed 

a photograph (one from the cell phone), the street address where 

the sale occurred, and the name “Midnight.” Turning to lawenforcement databases, she looked up those who had been 

previously arrested at the address. When that yielded nothing, she 

searched for those with a nickname “Midnight.” She found several 

people with that alias, but she found none who looked like the man 

the officers photographed. She then used a facial-recognition 

program that compared the photo officers took against photos in 

law-enforcement databases. She described the facial-recognition

search process this way:

I took the image [of Midnight], uploaded into the 

computer program. There are certain selections. You can 

let it be an open ended search. In this case I know the 

race and I know the gender, this case being a black male, 

and I also wanted to only consider Duval County booking 

photos. . . . 
3

So those selections were chosen in this case with a photo 

and then just hit search and it gives you a photo—

(unintelligible)—almost like a photo line-up.

She went on to say that “the analyst makes a judgment as to 

whether or not this is the individual and sends that information 

back to the detective that requested it.” She also said the software 

would assign a number of stars indicating the likelihood of a 

match, but she did not know how many stars were possible or how 

the program worked. She did remember though that Lynch’s 

photograph had only one star next to it, but it was the highest 

ranked match. After identifying Lynch as a potential match, she 

forwarded his information—along with his entire rap sheet—to the 

officers. The officers then positively identified him as the man they 

knew as Midnight, the man who sold them the crack. 

II.

The case went to trial, and the undercover officers testified,

but the crime analyst did not. Shortly before trial, Lynch (then 

proceeding pro se) moved for a continuance, arguing he was not 

prepared to go to trial because he had only recently been allowed 

to represent himself. The court denied the request. Lynch moved 

to incur costs for a private investigator, which the court granted. 

Lynch also moved to suppress evidence of the officers’ earlier 

identification, as well as to preclude any in-court identification. 

The court agreed to hear that motion during trial and later denied 

it. Following jury selection, part of which featured Lynch in jail 

attire and shackles, the court heard Lynch’s pro se motion seeking 

to compel the State to produce the photographs of the other 

“Midnights” contained in the database, as well as the other 

photographs the facial-recognition program returned. The court 

denied the request, ultimately concluding the photos were not 

relevant. Finally, after jury selection but before the trial began, the 

trial court revoked Lynch’s self-representation, reappointing the 

public defender who conducted the trial. 
4

III.

A.

Lynch’s first argument on appeal is that he should have had 

access to the other photos the facial-recognition system returned 

as possible matches, the ones the analyst deemed nonmatches and 

did not forward to the detectives. Lynch contends that those other 

photos would have cast doubt on the State’s case and that by not 

providing those photos, the State violated Brady v. Maryland, 373 

U.S. 83 (1963). We reject this argument.

To prevail under Brady, Lynch had to show “that there is a 

reasonable probability that the result of the trial would have been 

different if the suppressed documents had been disclosed to the 

defense.” Strickler v. Greene, 527 U.S. 263, 289 (1999) (marks 

omitted). He has not made that showing here. First, because he 

cannot show that the other photos the database returned 

resembled him, he cannot show that they would have supported 

his argument that someone in one of those photos was the culprit. 

Second, his attorney stated on the record that she did not want to 

call the analyst who evaluated the photos because the analyst’s 

testimony that Lynch was the man in the officers’ photos would 

only corroborate the officers’ testimony. And third, the jury 

convicted only after comparing the photo the officers took to Lynch 

himself and to confirmed photos of Lynch. Under these 

circumstances, we cannot conclude that Lynch met his burden to 

demonstrate prejudice under Brady. 

B.

Lynch also argues that the trial court should have suppressed 

the officers’ in-court and out-of-court identifications. We review 

only for an abuse of discretion, Jenkins v. State, 96 So. 3d 1110, 

1112 (Fla. 1st DCA 2012); Thomas v. State, 748 So. 2d 970, 981 

(Fla. 1999), and we reject Lynch’s argument. Use of an 

identification obtained through unnecessarily suggestive 

procedures violates a defendant’s due process rights. Perry v. New 

Hampshire, 565 U.S. 228, 232 (2012). But a suggestive pre-trial 

identification is admissible if “despite its suggestive aspects, the 

out-of-court identification possesses certain features of reliability.” 

Grant v. State, 390 So. 2d 341, 343 (Fla. 1980) (citing Manson v. 
5

Brathwaite, 432 U.S. 98, 110, (1977)). The admissibility of an outof-court identification is controlled by a two-part test that requires 

the court to determine “(1) whether the police used an 

unnecessarily suggestive procedure to obtain the out-of-court 

identification; and (2) if so, considering all the circumstances, 

whether the suggestive procedure gave rise to a substantial 

likelihood of irreparable misidentification.” Id. For in-court 

identifications, the analysis is slightly different, but the focus 

remains on the totality of the circumstances. Edwards v. State, 538 

So. 2d 440, 423 n.6 (Fla. 1989). “An in-court identification may not 

be admitted unless it is found to be reliable and based solely upon 

the witness’ independent recollection of the offender at the time of 

the crime, uninfluenced by any intervening illegal confrontation.” 

Hicks v. State, 189 So. 3d 173, 175 (Fla. 4th DCA 2016) (marks 

omitted) (citing Fitzpatrick v. State, 900 So. 2d 495, 519 (Fla. 

2005)). 

Here, even assuming there was an unnecessarily suggestive 

procedure, we are convinced—considering the totality of the 

circumstances—that there was no substantial likelihood of 

irreparable misidentification. In reaching this conclusion, we have 

considered the five “Biggers factors”:

the opportunity of the witness to view the criminal at the 

time of the crime, the witness’ degree of attention, the 

accuracy of the witness’ prior description of the criminal, 

the level of certainty demonstrated by the witness at the 

confrontation, and the length of time between the crime 

and the confrontation.

Grant, 390 So. 2d at 343 (quoting Neil v. Biggers, 409 U.S. 188, 

199-200 (1972)). Here, detectives viewed the suspect for only a few 

minutes, but they were face-to-face with him for much of that time. 

Cf. Perez v. State, 648 So. 2d 715, 719 (Fla. 1995) (identification 

was reliable where witness saw suspect for one minute from a 

distance of eight to ten feet). And the facts suggest the detectives 

were attentive during their interaction, even snapping photos. One 

of the officers testified that he was certain that Lynch was the 

suspect, and the other testified to having seen Lynch in the area 

before the offense. Only about eight days passed from the drug 

purchase to the time officers identified Lynch as the culprit.
6

We also find this case factually similar to Manson v. 

Brathwaite, 432 U.S. 98 (1977). In that case, an undercover officer 

purchased heroin from someone at a suspected drug house. Id. at 

98-101. The officer viewed the suspect for two or three minutes 

from a couple feet away. Id. After the exchange, the officer drove 

to police headquarters and gave a description of the drug seller. Id. 

Another officer then produced a photo of a person he believed 

matched the description and left it with the first officer to review. 

Id. Two days later, the first officer viewed the photo and positively 

identified the suspect. Id. The Supreme Court determined that the 

procedure was unduly suggestive and proceeded to weigh the five 

Biggers factors. Id. Ultimately, the Court determined the officer’s 

identification was reliable considering the circumstances and 

noted that “[j]uries are not so susceptible that they cannot measure 

intelligently the weight of identification testimony that has some 

questionable feature.” Id. at 117. The same is true here. We find 

no abuse of discretion in the court’s admission of the in-court and 

out-of-court identifications.

C.

Lynch next argues that the trial court was wrong to revoke his 

right to self-representation, an issue we review for an abuse of 

discretion. Kearse v. State, 605 So. 2d 534, 537 (Fla. 1st DCA 1992). 

Criminal defendants have a Sixth Amendment right to selfrepresentation, Indiana v. Edwards, 554 U.S. 164, 170-71 (2008), 

but the right is not absolute and certainly “is not a license to abuse 

the dignity of the court or to frustrate orderly proceedings.” Brown 

v. State, 45 So. 3d 110, 115 (Fla. 1st DCA 2010). In this case, the 

court allowed Lynch to represent himself for a portion of the 

proceedings, but after concluding Lynch could not behave properly, 

the court revoked the self-representation and appointed counsel. 

The court specifically found that Lynch was “unwilling to or 

incapable of abiding by the rules of the court and procedure, and 

therefore has shown [] that he is not competent to represent 

himself.” That conclusion was supported by the record, which 

showed Lynch continually interrupted the judge, made outbursts, 

and even had to be removed from the courtroom for a short time. 

(The court also heard from Lynch’s sister, who told the court that 

she did not think Lynch was capable of representing himself
7

adequately.) Considering all relevant circumstances, we find no 

abuse of discretion. 

D.

Finally, Lynch argues that the cumulative effect of several 

errors deprived him of his right to a fair trial. He cites a reference 

in the State’s opening argument to the officers’ operating in highcrime areas and the officers’ later testimony to the same point. We 

agree with the State that these comments and testimony—

individually or combined with everything else—do not warrant a 

new trial. Similarly, we conclude that the officer’s testimony that 

Lynch’s photo was in a “known database”—alone or combined with 

the other testimony—did not deprive Lynch of a fair trial. 

As part of his cumulative-error argument, Lynch also notes 

that he appeared in jail clothes and shackles during part of jury 

selection. Lynch conducted the jury instruction himself, 

proceeding pro se at the time. To avoid unfair prejudice and to 

protect the presumption of innocence, criminal defendants have a 

general right to appear unshackled and in non-prison clothes 

whenever the jury is present. See Bryant v. State, 785 So. 2d 422, 

428 (Fla. 2001); Heiney v. State, 447 So. 2d 210, 214 (Fla. 1984). 

But a defendant’s appearance in shackles or prison clothes does 

not automatically warrant a new trial. Here, Lynch asked the trial 

court in the middle of jury selection whether the court could 

remove the shackles. The court responded that “the sheriff’s office 

controls the security,” and Lynch made no further inquiry about 

the shackles. As to the clothes, Lynch asked after a lunch break 

whether he could change clothes. The court noted it was the “first 

time [it] heard from [Lynch] that [he] would like to be in some other 

clothes,” and the court allowed Lynch to change. 

We conclude that Lynch’s limited appearance in shackles and 

prison garb at jury selection does not warrant a new trial. Lynch 

did not ask to strike the jury panel that saw him, and he accepted 

the jury as selected. When he raised the shackle issue, he made no 

further inquiry after the court apparently deferred to the sheriff’s 

office. Counsel in this case acquiesced to proceeding without 

further inquiry. See Finney v. State, 660 So. 2d 674, 683 (Fla. 1995) 

(noting that where “[n]o objection was made to the court’s decision 

to defer to the sheriff on the matter,” the issue was not preserved 
8

for appeal); Eberhardt v. State, 550 So. 2d 102, 104 (Fla. 1st DCA 

1989) (“Although we conclude that it was error for the court to 

permit the venire to see [defendant] in the courtroom in prison 

clothes, defense counsel did not properly preserve this objection as 

a basis for reversal.”). 

IV.

We have considered and rejected Lynch’s remaining 

arguments, including his argument that the trial court held an 

insufficient Richardson hearing, his argument that the trial court 

abused its discretion in denying his motion for a continuance, and 

his argument that the trial court should have granted a mistrial. 

We have carefully considered all arguments presented, and we 

conclude that none presents a basis for reversal.

AFFIRMED.

JAY, WINSOR, and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Andy Thomas, Public Defender, and Victor D. Holder, Assistant 

Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate,

Assistant Attorney General, Tallahassee, for Appellee.