P. J., BROWN and COOMER, JJ.
White appeals from his convictions of burglary in the first
degree and possession of tools for the commission of a crime.
He contends that the trial court erred by denying his motion
to suppress based upon an impermissibly suggestive show-up
identification and failing to make a proper inquiry into his
request to represent himself under Faretta v.
California, 422 U.S. 806 (95 S.Ct. 2525, 45 L.Ed.2d 562)
(1975). For the reasons explained below, we affirm.
record shows that an eyewitness to the burglary testified in
a motion to suppress hearing, as well as at trial. In the
motion to suppress hearing, the witness, who had lived in the
same gated condominium community as the burglary victim for
three years, testified that when he heard a car door slam, he
looked outside his upper story window and saw a man getting
out of the driver's side of a bright red Monte Carlo.
This car was "not normally there" and it did not
have a regular license plate. Instead, it had something
"like maybe from a used car dealer . . . it was white,
and it was yellow and there was some writing on it." The
witness found it unusual because it was the middle of the day
when the parking lot was usually empty, and he had never seen
that car before. He saw a person come up the steps to his
building, assumed the person was visiting his neighbor, and
then heard some unusual noises.
ten minutes later, he saw another man get out of the
passenger side of the red Monte Carlo and approach another
door in a different unit. He watched "for a while"
and thought that man is "going to feel really stupid in
a few minutes when he realizes that he's gone to the
wrong door." After walking away from the window to do
something else, the witness heard "more loud
noise," looked out the window again, and saw the
passenger walking back across the street with a flat screen
television. He watched the man place it in the back seat of
the car. He did not immediately call 911 because walking with
a television does not necessarily mean it was being stolen.
witness explained that the Monte Carlo was located
approximately 40 to 50 feet away from him during the
burglary, that it took place around 10:00 to 10:30 in the
morning, that the weather was dry and "sunshiny,"
and that nothing obstructed his view from the window to the
street. He saw the driver coming up the stairs
"very briefly" for about 10-15 seconds. With regard
to the passenger he testified,
I saw him when he got out of his car and went into the unit
downstairs and I saw him leaving with the TV. So I'm
thinking he would have been facing me when he came towards
the building, so that's probably about another maybe 15,
20 seconds probably at the most there, and then I saw him
when he left and which basically I saw the back of him there.
But when he turned to get into the car I was able to see his
face again. . . . Now, I'm a distance away, so I'm
not going to - able to say, well, he has a scar under his
left eye or anything like that, but, you know, I can see the
gentlem[a]n's basic proportions and notice what he had on
and his hair.
He described the passenger carrying the television as having
braids in his hair and being heavier than the smaller, more
slender driver. The driver might have also had braids in
his hair. With regard to the description he provided to the
911 operator, the witness recalled mentioning braids in the
hair, but "didn't give [the operator] everything.
She really didn't ask for everything because there were
talking with a friend who had noticed something strange about
the burglary victim's door that morning, the witness went
downstairs and saw that the victim's door jam was broken
and the "door was a bit ajar." He then called 911
and gave a description of what he had seen to the operator.
He "basically told them . . . that [he] saw . . . a
burglary that had just taken place. [H]e described the car
and [he] gave a little bit of information about the two
individuals and explained that what [he] saw them take was
the TV." As he talked with another neighbor about what
had happened, he received a call back from the police stating
"they believe that they found the car that I
described" and asked if he could "go be a witness
or to identify to see whether or not they're the same
people that I saw." A police officer picked him up and
drove him to a location approximately five minutes away. The
witness testified that when he arrived at the location
I saw the car - obviously I can see that before I could see
the person; that's much larger, which I recognized
immediately after confirming the vehicle plates. And there
were two gentleman in front of it and some other gentlemen
around the back. I know there were two gentlemen in front of
And initially I could recognize from their clothing at that
time that those were the guys that I saw, but I couldn't
really see them. And I explained that to the officer that I
couldn't really see them, so he drove closer so that I
could really get a good look at them.
getting a closer look from about 15-20 feet away, the witness
identified them as "the same two guys that I saw less
than an hour [ago], pretty much before that, coming out of
that unit." The men were "[w]earing the very same
clothes that [h]e just saw them wearing." The witness
explained that because the two men were standing in front of
the car facing him, he did not see any handcuffs and
"had no way of knowing whether they were cuffed or where
their hands were," but he "would assume that they
were handcuffed." At the time of this identification,
the witness "was 100 percent certain" these were
the same men he had just seen. In an audio recording of the
show-up identification, the witness stated, "Yes, that
is them. I specifically remember the guy with the
time of the motion to suppress hearing, the witness expressed
some uncertainty about being able to identify White in court,
explaining that "it's sort of not a fair question. .
. . [I]t's been some time since the incident. And at the
time that I saw him initially, I wasn't thinking that I
would need to remember every nitty gritty detail about
him." The witness also stated that he could not really
answer as to what the two men were wearing because there was
nothing distinctive about it and too much time had passed.
The witness nonetheless testified that "to the best of
[his] remembrance, [he saw] that individual here today."
the trial, the witness testified during direct examination
with regard to the show-up that
[t]hey were the guys I recognized in totality. It wasn't
any one specific thing, really. It's seeing two guys,
same proportions. I had just seen them so at that time I knew
exactly what they were wearing. In other words, if someone
were to ask you all an hour from now what I was wearing, you
probably could give them a pretty good description, but if
they ask you two weeks from now what I was wearing, you
probably wouldn't remember. . . . I didn't pay that
close attention. I wasn't expecting to have to write a
fashion column regarding what they were wearing.
During cross-examination, the witness repeated that there was
"nothing distinctive to remember about what they were
wearing," explaining that they were not wearing jackets
or a suit, and with regard to color, he stated he "would
probably say maybe a very light whitish t-shirt," but
he was not certain. When pressed further about the body type
of both men, the witness stated the passenger was heavier
than the driver and that they both had on "loose fitting
clothing." When questioned about previously stating both
of the men had braids, the witness testified, "I mean,
it was unclear. Now, I know the one that I - the gentleman
over there. I recognize him. The look that he's giving me
right now, the eyes, something about that. ...