Cole v. State, F-85-606

• Decision Date: 08 December 1988
• Docket Number: No. F-85-606,F-85-606
• Citation: 766 P.2d 358
• Parties: Jeffery Dean COLE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 358

766 P.2d 358

Jeffery Dean COLE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-85-606.

Court of Criminal Appeals of Oklahoma.

Dec. 8, 1988.

An appeal from the District Court of Oklahoma County; William S. Myers, Jr., District Judge.

Appellant, JEFFERY DEAN COLE, was tried by jury and convicted of Robbery with Firearms, After Former Conviction of Two or More Felonies, in Case No. CRF-85-66, in the District Court of Oklahoma County, Oklahoma. He was found guilty and sentenced to twenty (20) years of imprisonment. From this judgment and sentence, he appeals.

AFFIRMED.

E. Alvin Schay, Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

The appellant, Jeffery Dean Cole, was charged by information with the crime of Robbery with Firearms, in violation of 21 O.S.Supp.1982, § 801. He was tried by jury in the District Court of Oklahoma County in Case No. CRF-85-66. The jury found the appellant guilty of Robbery with Firearms After Former Conviction of Two Felonies and assessed punishment at twenty years' imprisonment in the State Penitentiary. The trial court entered its judgment and sentence in accordance with the jury's verdict. From this judgment and sentence, appellant appeals.

At approximately 10:00 p.m. on November 11, 1984, appellant entered a Wynn's IGA grocery store in Oklahoma City. He approached the manager's office and asked if he could cash a check. The assistant manager of the store informed him that he could not cash the check unless he had a check cashing card. Appellant then threw a paper sack to the manager, pointed a gun at both employees in the office, and demanded all the money. The employees complied. After ordering them to lay on the floor, the appellant exited the store. At trial, both employees in the manager's office positively identified the appellant.

At approximately 9:53 p.m. that same evening, Carol Bailey was in the parking lot of the Wynn's IGA when appellant asked her for the time. She responded, informing the appellant that it was 9:53, and they both entered the store. The appellant denied his presence at and the robbery of the store, stating that he was at work until 11:00 p.m. that evening.

As his first assignment of error, appellant argues that the in-court identification by Ms. Bailey should have been suppressed because the identification was irreparably tainted by a hallway showup during a recess at trial. He also argues that a cautionary instruction on eyewitness identification should have been given.

During a recess at trial and before Ms. Bailey testified, the district attorney told Ms. Bailey in the hall that the appellant was in the restroom, and asked her to see if she could recognize him when he exited. Another black man came out of the restroom first, and then the appellant followed, escorted by a uniformed man. At that time, Ms. Bailey identified the appellant as the man that walked into the IGA with her on the night of the robbery.

Initially, we note that the appellant failed to object to Ms. Bailey's in-court identification at trial. As such, this assignment of error has not been properly preserved for our review. Chatman v. State, 716 P.2d 258, 259 (Okl.Cr.1986); Johnson v. State, 554 P.2d 51 (Okl.Cr.1976). Thus our review is limited to a review for fundamental error only.

Unnecessarily suggestive pretrial identification procedures may deny a defendant due process. Green v. State, 594 P.2d 767 (Okl.Cr.1979). The two-man showup held in the hallway of the courthouse was, in our opinion, unnecessarily suggestive. Even so, this does not result in the automatic exclusion of the in-court identification by Ms. Bailey. Leigh v. State, 587 P.2d 1379, 1384 (Okl.Cr.1978). The courtroom identification will not be invalidated if it can be established that it was independently reliable under the totality of the circumstances. Weatherly v State, 733 P.2d 1331, 1338 (Okl.Cr.1987); Chatman, supra.

There are several factors to consider in determining whether the courtroom identification was tainted by a pre-trial confrontation. Among these are: (1) the prior opportunity of the witness to observe the defendant during the alleged criminal act; (2) the degree of attention of the witness; (3) the accuracy of the witness's prior identification; (4) the witness's level of certainty; and (5) the time between the crime and the confrontation. Porter v. State, 674 P.2d 558, 559 (Okl.Cr.1984).

Applying these factors, we find the following: (1) Ms. Bailey had an opportunity to view appellant's face both in the light of the parking lot and inside the grocery store; (2) Ms. Bailey described with particularity the style of appellant's hair, the cloth and color of his jacket and other clothing, and the stubble of a newly grown beard; (3) her pre-showup description was consistent with the description of the other eyewitnesses; (4) Ms. Bailey positively identified appellant in the hallway and never waivered in her certainty; and (5) Ms. Bailey identified the appellant in the hallway within approximately three months of the crime. Because the totality of the circumstances test has been met, and the identification of appellant was based upon three witnesses' substantially consistent observations, we find that the identification was proper. Rowe v. State, 738 P.2d 166 (Okl.Cr.1987); Teague v. State, 674 P.2d 560 (Okl.Cr.1984).

Concerning appellant's suggestion that the court should have given a cautionary instruction sua sponte with regard to all three witnesses' identifications, we hold that appellant's failure to request such an instruction operates as a waiver unless he can demonstrate a substantial violation of his rights. Hair v. State, 597 P.2d 347 (Okl.Cr.1979). Finding no violation of appellant's rights, his first assignment of error is denied.

Appellant contends in his second assignment of error that the trial court erred by delivering confusing and contradictory instructions to the jury. Specifically, he argues that instructions 4, 5, and 9 were improper because each contained a separate, distinct list...