Bell v. State, 1 Div. 843

• Decision Date: 12 February 1985
• Docket Number: 1 Div. 843
• Citation: Bell v. State, 466 So.2d 167 (Ala. Crim. App. 1985)
• Parties: Freddie Lee BELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 167

466 So.2d 167

Freddie Lee BELL v.STATE.

1 Div. 843.

Court of Criminal Appeals of Alabama.

Feb. 12, 1985.

John Bertolotti, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

On December 17, 1982, the appellant, Freddie Lee Bell, was indicted by the Grand Jury of Mobile County, Alabama, for robbery in the first degree in violation of § 13A-8-41,Code of Alabama 1975.Appellant was subsequently arraigned on February 11, 1983, at which time he entered a plea of not guilty.His jury trial commenced on March 31, 1983, and on April 1, 1983, the jury found him guilty as charged in the indictment.The trial judge set a sentencing hearing for April 22, 1983, but this hearing was delayed until March 16, 1984, at which time the trial court adjudged the appellant guilty of robbery in the first degree and sentenced him to thirty-five years in the penitentiary.The record shows that at the time of trial the appellant was serving a term in the State penitentiary for another crime, and that prior to the initial sentencing date set by the court, he was given an early release by the prison authorities.He could not be found and brought to court for sentencing until March 16, 1984.This accounts for the delay in sentencing.From the judgment of conviction this appeal followed.

The record discloses that on October 13, 1982, two black males armed with pistols, wearing stocking facemasks and traveling in a stolen automobile, pulled up to three bank tellers and a security guard in a shopping center in Mobile, Alabama.The bank personnel were employees of the Commercial Guaranty Bank of Mobile.The masked bandits robbed them of a bank bag containing bank supplies, having the approximate value of $8.00, and a .38-caliber pistol.The tellers and the guard were unable to identify the robbers.After taking the pistol and the bank bag, the robbers jumped back into their vehicle, sped across the shopping center, and after colliding with a parked vehicle, pulled up to another stolen vehicle, where they changed vehicles, leaving the first vehicle and speeding away in the second.Prior to changing vehicles the robbers had removed their masks, and during the vehicle exchange were observed by three witnesses.The witnesses were Leonard Rigsby, James Ian McIlwain, and James Green.The witnesses observed that the robber who drove the getaway car had a pistol in his hand which he pointed at them.Shortly after the robbery the three witnesses were shown a photographic array or lineup by Detective Wayne Farmer of the Mobile Police Department and each of the witnesses picked the same photograph from the array and identified it as being the photograph of the driver of the getaway car during the robbery.This photograph had been taken by Detective Farmer shortly after the robbery and was a photograph of the appellant, Freddie Lee Bell.At the time the photograph was taken, appellant had long red-tinted hair, a goatee, and a mustache.At the time of trial he had cut his long hair and removed his goatee and mustache, thus altering his appearance to that extent.

Witness Leonard Rigsby testified on direct examination: "Do you see the man that you saw point that gun at you that day anywhere in this courtroom?"His answer was: "No, sir."Mr. Rigsby, further testified on direct examination that shortly after the robbery he was shown the photographic lineup or array by Detective Farmer, and he picked out a photograph and identified it as a photograph of the driver of the getaway car and the person who pointed a gun at him.He was shown the photographic array on the witness stand at trial and promptly picked the photograph which he had previously selected, and again identified it as a photograph of the driver of the getaway car.It was marked with an "X" to identify it and distinguish it from the other photographs.No objection was made by appellant to this testimony.The prosecuting attorney did not question the witness further concerning his inability to make an in-court identification, and the defense counsel did not cross-examine the witness in that regard.

The State called Detective Farmer, who testified that shortly after the robbery he showed Mr. Rigsby a spread of photographs.He identified the photographic spread which he had shown Rigsby.It was the same spread that Rigsby had just identified in his testimony.No objection was made to this testimony by appellant.The prosecuting attorney then asked Detective Farmer if witness Rigsby had picked one of the photographs out of the line-up prior to trial.Appellant objected to this question, and the trial judge sustained the objection.Detective Farmer was asked if the appellant's photograph was in the group or spread, and over the objection of appellant, he answered in the affirmative.He was then asked to identify the appellant's photograph in the spread, and over the objection of appellant, he identified a photograph from the group as being that of the appellant.It was the same photograph which Mr. Rigsby had just identified in his testimony from the witness stand as the photograph of the driver of the getaway car in the robbery, and was the photograph which had been marked with an "X" for identification.Farmer further testified that he was personally acquainted with the appellant and that it was he who took the photograph of the appellant and that he took it three days after the robbery.He testified that appellant's physical appearance had changed between the time the photograph was taken and the date of trial.He stated that since the photograph was taken, appellant had shortened the hair on his head and removed his facial hair.The photograph was admitted into evidence over the objection of appellant.The substance of appellant's objections to the testimony of Detective Farmer and to the admission of the photograph was that it constituted impeachment by the State of its own witness or amounted to rehabilitation of its witness when there had been no attempt by appellant to impeach such witness.

The appellant raises only one issue on appeal, and states this issue in his brief as follows: "[Whether the]trial court erred in allowing the State to use an out-of-court identification as substantive evidence of guilt, when the eye-witness did not identify the defendant at trial."The State presents the issue somewhat differently, and states it as follows: "Whether the trial court properly allowed into evidence the testimony of Detective Sergeant Farmer identifying defendant from a series of photographs?"

Although one may not generally impeach his own witness, where a party is put to a disadvantage by unexpected answers, a party may, for purposes of showing surprise or for refreshing the witness's recollection, ask his witness if he had not made prior statements contrary to his instant testimony.This is permissible, after proper predicate, even though its incidental effect is to impeach the witness's testimony.Miller v. State, 431 So.2d 586(Ala.Crim.App.1983);Isbell v. State, 329 So.2d 133(Ala.Crim.App.), cert. denied, 295 Ala. 407, 329 So.2d 140(1976);Edwards v. State, 51 Ala.App. 433, 286 So.2d 308(Ala.Cr.App.), cert. denied, 291 Ala. 777, 286 So.2d 313(1973), C. Gamble, McElroy's Alabama Evidence§ 165.01(7)(3d ed. 1977).Under the theory of surprise, the prosecution may elicit from a witness testimony that he in fact made prior contradictory statements, and through questioning may further elicit from the witness the contents of prior statements through questioning.However, if the witness denies having made the prior inconsistent statements, the prosecution would not be allowed to bring in other parties to prove the contents of the prior inconsistent statements.Wyllie v. State, 445 So.2d 958(Ala.Crim.App.1983), cert. denied, 445 So.2d 958(Ala.1984);Isbell v. State, supra;C. Gamble, McElroy's Alabama Evidence§ 165.01(7)(8)(3d ed. 1977).While one's own witness may be impeached by the use of prior contradictory statements, such statements should not be treated as original evidence of the facts of the case, nor be received for any other purpose than that of contradicting or impeaching the witness.Isbell v. State, supra;Cloud v. Moon, 290 Ala. 33, 273 So.2d 196(1973).Lewis v. State, 44 Ala.App. 319, 208 So.2d 228(1968);Skinner v. State, 36 Ala.App. 434, 60 So.2d 363, cert. denied, 258 Ala. 713, 60 So.2d 367(1952).

In the instant case, it is reasonable to assume that the prosecution was surprised by witness Rigsby's testimony that he could not make an in-court identification of the appellant.He had picked out the appellant in a photographic line-up prior to trial.The prosecution certainly was put to a disadvantage to the same extent by the unexpected testimony of the witness.Under these circumstancesthe prosecution would have been entitled to ask the witness about his prior identification of the appellant upon laying the proper predicate.However, the prosecution did not follow this course.When Rigsby was unable to make an in-court identification of appellant, the prosecuting attorney, without attempting to lay a predicate for the purpose of showing a prior inconsistent statement, continued questioning Rigsby and elicited from him, without objection of appellant, the details concerning his extrajudicial identification of the robber which he had made at the photographic line-up.Rigsby identified the photographs which he had been shown in the pre-trial photographic spread and identified the photograph of the person he saw fleeing the scene of the robbery, which he marked with an "X" for identification.This testimony does not constitute impeachment of witness Rigsby, as claimed by appellant.The appellant did not cross-examine Rigsby in reference to his testimony concerning the photographic line-up.The appellant made no objection to the admission of witness Rigsby's...