Dawson v. State

• Decision Date: 14 April 1995
• Docket Number: CR-93-1619
• Citation: 675 So.2d 897
• Parties: Nathaniel LeRoy DAWSON and Mark Keith Glaster v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 897

675 So.2d 897

Nathaniel LeRoy DAWSON and Mark Keith Glaster v. STATE.

CR-93-1619.

Court of Criminal Appeals of Alabama.

April 14, 1995.

On Application for Rehearing

June 16, 1995.

Certiorari Denied (Glaster) Aug. 18, 1995.

Alabama Supreme Court 1941536.

David H. Dowdy, Tuscaloosa, for Glaster.

Shirley T. Chapin, Tuscaloosa, for Dawson.

Jeff Sessions, Atty. Gen., and James Prude, Asst. Atty. Gen., for Appellee.

PATTERSON, Judge.

Nathaniel LeRoy Dawson and Mark Keith Glaster appeal their convictions and sentences resulting from a consolidated trial. Dawson and Glaster were each convicted of first degree burglary, first degree rape, first degree sodomy, and first degree robbery, and they were each subsequently sentenced to four consecutive terms of life imprisonment. ¹

I.

Both appellants argue that the victim's pretrial identifications of them were impermissibly suggestive. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The victim was shown two photograph lineups. Each lineup contained a photograph of one of the appellants and photographs of five other men with features similar to the appellant. In the photographs of the appellants, they were wearing orange jumpsuits, which all prisoners are required to wear. The photographs depict only the appellant's faces, but the collars of the jumpsuits are visible in the photographs. Glaster was the only person wearing an orange jumpsuit in his lineup. Dawson was one of two men wearing orange jumpsuits in his lineup. Furthermore, before the lineups, the victim was informed that the appellants had been arrested and were in jail. Although we agree that these lineups were suggestive, in view of the totality of the circumstances, we do not believe that they were so suggestive as to lead to a substantial likelihood of misidentification.

In arriving at this conclusion, we consider the five factors outlined in Neil v. Biggers. First, the victim had ample opportunity to observe Dawson and Glaster during the commission of the crimes. The crimes took place in the victim's apartment during the day. The entire incident lasted approximately 40 minutes. Neither appellant wore a mask or any other form of disguise, and the victim had sufficient opportunity to observe their faces at close range for extended periods of time. Second, the witness was paying attention during the crimes. Like the victim in Neil v. Biggers, "[s]he was no casual observer, but rather the victim of one of the most personally humiliating of all crimes." 409 U.S. at 200, 93 S.Ct. at 382-83, 34 L.Ed.2d at 412. Third, the victim gave sufficient descriptions of Dawson and Glaster in her statement to the police. Although she was unable to give detailed portraits while giving her statement, she asserted that she could recognize her attackers, and she pointed to her head saying, "They're here. I'd know them if I saw them in a second. I'd know them." Fourth, at the lineups, which was videotaped and which is in the appellate record, the victim demonstrated intense certainty that her identifications were correct. Finally, the lineup was conducted the same day the crimes were committed. Therefore, although the lineup was suggestive, the particular facts of this case render a false identification highly unlikely.

II.

Both appellants contend that the trial court erred in granting the state's motion to consolidate their trials. See Curry v. State, 601 So.2d 157 (Ala.Cr.App.1992). Dawson and Glaster both argue that they were prejudiced by "spillover" evidence--evidence which, although admissible against one codefendant, was allegedly inadmissible against the other codefendant.

Glaster claims that he was prejudiced by the following evidence, which he contends would not have been admissible in a trial in which he was the only defendant: Dawson's wallet, which was found in an apartment rented by an acquaintance of Dawson; a photograph of the victim's sister-in-law, found in Dawson's wallet; and Dawson's extrajudicial statements that he and Glaster had robbed someone and that the photograph depicted the victim.

Dawson claims that he was prejudiced by the admission into evidence of the victim's watch, which Glaster was wearing when he was arrested. Dawson contends this watch would not have been admissible in a trial in which he was the only defendant.

Neither Dawson nor Glaster have met their burden in their advancing this argument. See Holsemback v. State, 443 So.2d 1371, 1377 (Ala.Cr.App.1983) (quoting United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.1982): "In reviewing improper denial of severance claims, courts of appeals require that the defendant demonstrate that the trial court abused its discretion by showing that the failure to sever resulted in compelling prejudice.... The defendant fails to meet this burden if he merely asserts that acquittal is more likely if he is tried in a separate action or that much of the prosecution's evidence relates only to one of the codefendants.").

In their briefs to this court, they complain about the alleged prejudicial impact of certain items of evidence, and argue that this evidence would have been inadmissible against them if the trial had not been consolidated. However, they fail to address the specific question of how this evidence prejudiced them. Furthermore, the evidence does not appear on its face to compel prejudice in the minds of the jurors. Therefore, the trial court was within its discretion in granting the state's motion to consolidate.

III.

Both appellants argue that the trial court erred in admitting into evidence the videotape of the victim's statement to the police, and the audiotape of her 911 telephone call to the emergency operator, reporting the crime. See Donahoo v. State, 505 So.2d 1067 (Ala.Cr.App.1986) (videotape), and Bridges v. State, 516 So.2d 895 (Ala.Cr.App.1987) (audiotape).

A.

The appellants each challenge the admission into evidence of the victim's videotaped statement, arguing that it is inadmissible hearsay and that it contains double hearsay. The victim testified at trial, before the videotape was offered into evidence. Her testimony included all of the alleged hearsay contained on the videotape, and she was cross-examined by the defense. The appellants did not object to the victim's testimony regarding the matters they allege are hearsay in the victim's videotaped statement. The erroneous admission of evidence that is merely cumulative is harmless error. Reese v. City of Dothan, 642 So.2d 511 (Ala.Cr.App.1993).

The appellants also contend that the videotape was more prejudicial than probative, merely cumulative, and offered to bolster the testimony of the state's witness. We agree that the videotape was cumulative; however, we do not conclude that it was so prejudicial as to merit reversal.

B.

The appellants each contend that the trial court erred in admitting the audiotape of the victim's 911 telephone call into evidence. The appellants argue that the tape was cumulative, prejudicial, and hearsay. The court admitted the tape over these objections, holding that the tape was part of the res gestae.

"Generally, a person's statement concerning a startling occurrence made while he is perceiving the occurrence, or soon after his perception thereof, and while he is under the stress of a nervous excitement created by such perception, is admissible as tending to prove the truth of the matter asserted."

C. Gamble, McElroy's Alabama Evidence, § 265.01 (4th ed. 1991).

In this case, the appellants left the victim tied up in her apartment. She freed herself soon after the appellants fled at approximately 6:40 a.m. She immediately ran downstairs to a neighbor's apartment and dialed "911" to report the crime. The 911 call was logged in at 7:06 a.m. At the time of the call, the victim was still acting under "nervous excitement" and clearly did not have time to reflect on the events before making the call. Therefore, the court did not abuse its discretion in holding that the tape was admissible as part of the res gestae.

IV.

Glaster raises two issues in which Dawson does not join. Glaster contends that the prosecutor commented on his failure to testify on his own behalf and that he received ineffective assistance of trial counsel.

A.

During trial, arresting officers testified that when they arrested Glaster, they informed him that he was under arrest and that he had the right to remain silent. Glaster argues that this testimony amounts to an improper prosecutorial comment on his decision to assert his Fifth Amendment rights. We disagree. The record is devoid of any reference to the fact that Glaster elected to remain silent after his arrest. Glaster only complains of testimony that the police read Glaster his Miranda rights. The prosecutor did not ask the witnesses any questions involving the interrogation, and the witnesses did not volunteer such information. Therefore, this argument is entirely without merit.

B.

Glaster contends that he received ineffective assistance of trial counsel. See Ex parte Jackson, 598 So.2d 895 (Ala.1992). Glaster did not raise this issue before the trial court. Therefore, this issue was not preserved for appellate review.

V.

Dawson makes two arguments in which Glaster does not join. He argues that the proof was at variance with the indictment charging first degree burglary and that the court improperly sentenced him to consecutive sentences for his four convictions.

A.

Dawson's indictment for first degree burglary alleged that he was armed with a "deadly weapon, to-wit, a knife." He argues that the proof at trial indicated that the knife was actually a deadly instrument, as opposed to a deadly weapon. See Johnson v. State, 406 So.2d 451 (Ala.Cr.App.1981) (holding that whether a knife qualifies...