Cole v. State, 1 Div. 451

• Decision Date: 23 April 1974
• Docket Number: 1 Div. 451
• Parties: Larry Darnell COLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 871

293 So.2d 871

52 Ala.App. 447

Larry Darnell COLE v. STATE.

1 Div. 451.

Court of Criminal Appeals of Alabama.

April 23, 1974.

Donald E. Brutkiewicz, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of robbery and his punishment fixed at imprisonment in the penitentiary for twenty (20) years. Appellant appeared at arraignment with retained counsel and pleaded not guilty. After conviction he was determined to be indigent, and he was furnished a free transcript. His trial counsel requested the court to appoint him to represent him on appeal and this was done.

The facts in this case are not in dispute, Around midnight on January 29, 1973, the Midget Drive-In located in Mobile, Alabama, was robbed by a lone gunman. At the time of the robbery, Charity Bell Lewis, the manager, was present along with Ruby Jane Rembert, daughter of the owner of the drive-in, and a customer by the name of Willie Wright, Jr. Appellant walked around in the place for a few minutes during which time the manager kept asking him if there was something he wanted. Appellant then pulled a pistol and told the manager this was a robbery and he wanted the money. She told him she did not have any money; whereupon, he went to the cash register and raised the bottom drawer. Under this drawer was some currency consisting of five-dollar bills and one-dollar bills. Some of the one-dollar bills were Torn. Appellant took all the currency and all the change, viz., quarters, dimes, nickels and pennies. He put the change in a sack and the currency in his pocket. He pointed the pistol directly at the manager and ordered her to go to the back. She raised her hands and walked to the back of the place. He told all three witnesses to lie on the floor and that if anyone came to the place to tell them they were closed for the night. They sae him walk out the front door and observed him get in a small red car occupied by three men. Appellant drove away.

The robbery was immediately reported to the Mobile Police Department with a description of the robber and information that he was driving a small red automobile. He was described as wearing blue jeans, a light brown-looking shirt and a long black coat and also as having on a black cap with a ball or bob on top. A police radio dispatch was made and seven to ten minutes later, an officer on patrol stopped a red Camaro automobile being driven by a man dressed precisely as described in the robbery report given by the victim. The driver got out of the car. The sequence of events leading up to the arrest was testified to by the officer as follows 'Q. I will ask you this, if you had occasion on that night to see the Defendant, Larry Cole?

'A. Yes; I did.

'Q. All right; now where was he when you saw him?

'A. He was driving the vehicle that I had stopped.

'Q. What kind of automobile was that?

'A. It was a red Camero. I don't recall the year.

'Q. All right, sir; and how many--was he by himself or was anyone with him or what?

'A. There were three other people with him.

'Q. All right; now I'll ask, if you will, to tell this Jury just what, if anything, occurred when you stopped the Camero.

'A. As I stopped the Camero, they pulled over to the side. The driver got out of the car . . .

'Q. Is the driver the Defendant?

'A. Right.

'Q. All right; go ahead.

'A. He was dressed in jeans, had a three-quarter length black coat on, had that black cap there on.

'Q. When you refer to the black cap there, are you referring to State's Exhibit 2 for identification?

'A. Yes; I am.

'Q. Go ahead.

'A. I called radio and advised I had stopped a car fitting the description with the description of the subjects in the car. The Defendant approached the car. I asked him to stop between his car and mine. I was standing at the edge of the scout car, and the other defendants--the other people got out of the car and started to walk off from the car. I advised them to stop. They stopped. I asked them to walk back toward me. They did so, got between my car and their car and they stopped. The Defendant turned and walked back to the Camero, stooped over, put his hand in his pocket--coat pocket. I advised him to straighten up and turn around and face me. As he straightened up, I heard what appeared to be a shot and saw the Defendant fall to the ground, wounded.

'Q. Now did you fire this shot?

'A. No, sir.

'Q. Do you know where the shot came from?

'A. I did ascertain it; yes, sir.

'Q. Where was that?

'A. He had fired the shot. The gun was hung in the coat lining of his pocket. It fired as he was bringing it out.

'Q. All right, sir; and what, if anything, happened then?

'A. I made all the men lie on the ground, went around them, gave the Defendant a fast frisk, found the revolver in the coat lining of his pocket.

'Q. All right; now I want to show you what has been marked as State's Exhibit 3 for identification, and I will ask if you can identify this gun?

'(Whereupon, witness examined State's Exhibit 3 for identification.)

'A. Yes; I can.

'Q. What is that gun, please, sir?

'A. It's a .22 H&R revolver.

'THE COURT: Hold it just a minute. Officer, check it again to make sure it is not loaded.

'(Whereupon, the officer complied.)

'Q. You found that gun; it had been fired?

'A. Yes, sir.

'Q. All right; were there any other live rounds in the gun?

'A. Yes; it was.

'Q. All right; what, if anything, else did you find when you frisked the Defendant?

'A. I found some one-dollar bills on him in his coat pocket. Some of them was torn.

'Q. All right, sir; I am going to show you what has been marked as State's Exhibit 1 for identification. I will ask if you can identify those bills?

'(Whereupon, witness examined State's Exhibit 1 for identification.)

'A. Yes, sir.

'Q. What are those bills?

'A. That's the torn bills that I got out of his pocket that was in his pocket.

'MR. HOLLOWAY: Your Honor, at this time, I would offer State's Exhibit 1 for identification into evidence.

'MR. BRUTKIEWICZ: I've seen them already, Your Honor.

'THE COURT: Is there objection?

'MR. BRUTKIEWICZ: No, sir.

'THE COURT: Allow them in evidence and have them marked as State's Exhibit 1.'

In searching the automobile the officer found a brown paper bag containing quarters, dimes, nickels and pennies in the front part of the Camaro and paper bills were found on the back and front floorboards. The victim identified the torn one-dollar bills as those taken during the robbery and also identified the cap as the one worn by the robber. These exhibits were admitted in evidence without objections. Also, the pistol taken out of appellant's coat pocket after he shot himself was admitted in evidence without objection.

After appellant's arrest, he was carried to a local hospital for examination and treatment. Following this, he was placed in jail with the other three arrestees and charged with robbery.

The state pitched the prosecution on the in-court positive identification of appellant as the robber by the three eye witnesses to the crime. According to their testimony the Midget Drive-In was a well-lighted place and they observed the robber face-to-face from three to five minutes and from a distance of two to seven feet. All of them withstood a vigorous and thorough cross-examination on the identity issue.

It was developed during cross-examination that some two hours after the four men were arrested the police conducted a line-up. Each of the three witnesses viewed the line-up separately. In each line-up the men were required to shift or change positions before another viewer was permitted to take a look. All three state witnesses picked out appellant as the lone gunman who robbed the Midge Drive-In.

When appellant was advised that he was going to be placed in a line-up, he was told that he was entitled to have his attorney present and that if he did not have an attorney and wanted one, the court would appoint a lawyer for him. Appellant told the officers that he did not want an attorney appointed by the court but wanted an attorney of his own choosing. He wanted Mr. Donald E. Brutkiewicz. He was permitted to use the telephone to call his attorney but was not able to make contact with him. Appellant was then allowed to call his mother to solicit her help in contacting the attorney of his choice and she told him she did not think she could contact a lawyer at that early morning hour. The mother finally reached Mr. Brutkiewicz at ten o'clock in the morning. The line-up took place around three o'clock a.m. on the same date.

The officers prepared and presented to appellant a waiver of rights to an attorney being present at the line-up. This was presented to him at 2:05 A.M. and he refused to sign the form. The officers waited until 3:15 A.M. before the first line-up was conducted. They delayed the first line-up an hour and ten minutes waiting on appellant to contact his attorney. When it became obvious that he was not going to be able to contact his attorney, the line-ups began.

Often times in their zeal to ferret out crime and bring an accused to the bar of justice, some officers become over-zealous and too hasty. Under the facts in this case, there was absolutely no necessity for a line-up that entails due process problems and constitutional questions. The eye witnesses had given the officers a vivid description of the manner in which appellant was dressed and the type and color of the car he was driving. He was stopped in less than ten minutes after the crime was reported. If the officers felt that a further identification was necessary, they should have carried appellant by the Midget Drive-In and presented him to the victim and the two other witnesses. This procedure would have squared with due process of law.

It is now settled law that prompt on-the-scene confrontation is 'consistent with good police work', and does not offend the principles established in United States v. Wade, 388 U.S....