Cooper v. State, O-78-380
| Decision Date | 30 August 1979 |
| Docket Number | No. O-78-380,O-78-380 |
| Citation | 599 P.2d 419 |
| Parties | James Maurice COOPER, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, James Maurice Cooper, hereinafter referred to as defendant, was convicted in the District Court, Tulsa County, Case No. CRF-77-1185, of Burglary in the Second Degree. Upon a plea of guilty entered on June 7, 1977, he was sentenced to three (3) years' imprisonment, such judgment and sentence having been suspended upon defendant's good behavior. However, on October 24, 1977, the District Attorney filed an application to revoke the suspended sentence, and a preliminary hearing was held on November 9, 1977. At the January 12, 1978, detention hearing, the court ordered defendant's suspended sentence revoked. Defendant now appeals that order.
The State offered the testimony of three eyewitnesses and the arresting officer at the revocation hearing. Defendant was identified as the individual standing near the complaining witness' car on the morning of October 19, 1977, when the three eyewitnesses returned to the parking garage of 243 Center Plaza in Tulsa. Defendant then furtively moved to another car, got in and was driven away by his companion. The complaining witness testified that two of his hubcaps had been stolen, and the other two witnesses testified that they had called in a description of the car and license tag number to the police, whereupon defendant was arrested.
Defendant alleges, in his first assignment of error, that it was error for the court to overrule his motion in limine to prevent the in court identification by eyewitnesses Roy David and Jack Newkirk. Fundamental to his theory is a rule of law requiring a pretrial lineup as a precursor to an in court identification. If no such rule exists, then his argument is without validity.
Before attending to this, we must consider several factual questions raised by defendant. First, he alleges that there is no question that the witnesses had an extremely limited opportunity to observe the criminal act and its alleged perpetrator, thus, in his opinion, requiring a lineup. However, the witnesses whose in court identifications were permitted had observed the defendant for a period of several seconds to a few minutes during the daytime in a parking garage from a distance of 10 to 25 feet. We find no reason to disturb on appeal the decision of the fact finder that this provided an adequate opportunity for these witnesses to make a credible identification.
This leads us to reject, also, defendant's contention that fundamental fairness required a pretrial lineup to insure that the identity of the defendant was based on the witnesses' recollection from the time of the incident in the garage and not on any alleged "showups" at the subsequent hearings.
Finally, defendant draws the court's attention to the fact that Mr. Newkirk indicated the witnesses had compared notes, arguing that this suggests they may have improperly influenced one another in determining defendant's identity. He ignores, however, Newkirk's specific indication of the subject of their comparison, not the defendant at all but the license number and the color of the car.
To bolster his argument in favor of a pretrial lineup, defendant relies on the language of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), wherein the Court cited examples of factors which might be considered in determining the constitutionality of a lineup. Even though no lineup had been conducted, defendant attempts to apply the lineup language to the pretrial identification of him by the two witnesses. These factors, 1 even if applied, do not support defendant's position for the following reasons: There was a prior opportunity to observe the criminal act; there was no significant discrepancy between the identification of defendant at any time before or after the in court hearings; no one other than the defendant had been identified as the perpetrator; a valid photographic identification had been completed; no significant time had lapsed between the act and the in court identification.
This Court held in the case of Grigsby v. State, Okl.Cr., 496 P.2d 1188 (1972), that a formal lineup is not a prerequisite to an in court identification of a defendant. In that case, a dynamite salesman made an in court identification of the defendant, having seen her only once previously, at the time of the sale. The protections against an unfair lineup afforded by Wade were held not applicable since there had been no lineup. In the case at bar, the defendant was afforded even greater protection than Grigsby because he was identified additionally from a selection of eight to ten photographs. Our defendant stresses the fact that these witnesses saw the accused at pretrial hearings, but, as we stated in Grigsby, "merely seeing the accused in the courtroom when the witness arrived for the preliminary hearing does not constitute a prejudicial or unduly suggestive pretrial confrontation." See also Fortune v. State, Okl.Cr., 549 P.2d 380 (1976).
The same issue was addressed by the Supreme Court of Delaware wherein an appellant argued that a confrontation between a witness and a defendant at the preliminary hearing and the trial amounted to a tainted "show-up" because "implicit in the court room situations . . . was the message that the police suspected and now accuse these particular men of the crime involved." In finding the argument to be without merit, that Court said:
"Generally speaking, a court room confrontation, in the presence of court and counsel and with the right of cross examination preserved, provides adequate protection to the rights of an accused of the type sought to be covered by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); . . ." (Citations omitted) Laury v. State, Del.Supr., 260 A.2d 907, 909 (1969).
Laury v. State, supra, is cited with approval in Roberson v. State, Okl.Cr., 483 P.2d 353 (1971).
Two additional points are worthy of our...
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