Deloach v. State

• Decision Date: 20 December 1977
• Docket Number: 6 Div. 216
• Citation: 356 So.2d 222
• Parties: Donald C. DELOACH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 222

356 So.2d 222

Donald C. DELOACH v. STATE.

6 Div. 216.

Court of Criminal Appeals of Alabama.

Dec. 20, 1977.

As Corrected On Denial of Rehearing Jan. 24, 1978.

J. Earl Langner, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Barry Hutner, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Robbery; sentence: fifteen years imprisonment.

Around 9:20 P.M. on April 25, 1975, the Majik Market convenience store in the East Lake section of Birmingham was robbed. Deborah Lynn Hutchins, the cashier, was held at gunpoint and a total of $170 was taken from the cash register. The robber fled the scene, and police were unable to find him in the vicinity that night. The appellant was arrested on May 3, 1975, on a charge of possessing a sawed-off shotgun and was charged later that day with the robbery in question.

I

Appellant contends that his arrest, the search, and the seizure of the sawed-off shotgun were not supported by probable cause and therefore were unconstitutional.

On May 3, 1975, Birmingham Police Sergeant John R. Davis received a police radio dispatch to investigate a disturbance at a residence in the East Lake section. He arrived and interviewed Vanessa Ikner, the appellant's girl friend, who had telephoned the complaint to police headquarters. Davis testified to essentially the same facts on voir dire examination outside the presence of the jury and on three separate occasions in the presence of the jury during trial. He stated: "She told me that her boy friend had been down there waving a gun in her face and threatening her with it, and that he had walked off up the street." He said that Ikner told him the appellant had a sawed-off shotgun and gave him a description of the appellant and the direction in which he was headed when he left.

Officer Peggy Dawn Lyle had arrived in another patrol car, and the two officers left in separate cars in the direction that appellant had taken. Within less than a minute, they observed the appellant walking down the street. Sergeant Davis stated that he got out of his car, approached the appellant with his revolver in hand, made a pat-down search, and found a sawed-off .410 gauge shotgun under the appellant's coat. He placed the appellant in Officer Lyle's car, and the two officers took him to the East Lake precinct where he was booked for possession of a sawed-off shotgun. In route, the appellant was read the Miranda warning.

After the appellant's description was compared with that given of the robbery suspect, he was also charged with robbery and transferred to the city jail.

In order to disprove the existence of probable cause, the appellant called Vanessa Ikner to testify outside the presence of the jury. She stated that she had telephoned the police and asked that they send someone out because she and her boy friend had had a fight. She said that she could see the print of his gun under his long coat. She stated that she knew he had a gun although she did not see it at that time. She testified that the appellant had threatened her, but he had not waved the gun or pointed it at her. Ikner stated that she told Sergeant Davis that the defendant had a gun under the back part of his coat and that she described what he was wearing and the direction in which he went. She said that she told Sergeant Davis that the appellant had "jumped on her" and had been hitting her. She had a scar on her neck and her hand was swollen at the time she was interviewed by Sergeant Davis.

The appellant testified, outside the presence of the jury, and stated that he did go by Ikner's house on May 3 and that he did have a sawed-off shotgun under his coat. He explained that he was moving from one residence to another and had placed the gun under his coat because it had been raining. He admitted that the gun was loaded and that he had three shells in his pocket, but he stated that he did not show the gun to Vanessa Ikner or "flash it."

The issue appears to be whether the officer had probable cause to stop and frisk a suspect after having been dispatched to the scene of a reported disturbance and also based upon the verbal complaint of an apparently battered woman who stated that the suspect had assaulted her and had a sawed-off shotgun in his possession. (a federal felony, 18 U.S.C.A., § 921, et seq.).

Title 15, § 154, Code of Alabama 1940, provides that an officer may make an arrest without a warrant, " . . . when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony." Reasonable cause has been defined by the appellate courts of Alabama, " . . . as a state of facts in the mind of the officer making the arrest which would lead a man of ordinary prudence to believe that a felony has been committed and that the person to be arrested is guilty of committing it. . . . " Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972).

In Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740, we held that an officer had reasonable cause to believe that the suspect had committed a felony and therefore could make a valid arrest and search incident thereto, where the officer observed the suspect within a few minutes of the robbery, within a half block of the scene of the crime, and where the appellant fit the general physical description and his clothing fit the description of that worn by the robber.

We find that it would be exceptionally poor police work, and in fact a violation of the policeman's duty, if he ignored the complaint of the victim that she had been physically assaulted by the appellant who was carrying a sawed-off shotgun at the time. Also Davis testified that Ikner told him the appellant was waving the gun in her face. To have taken down a full description of the appellant under those circumstances and to have come upon a person meeting that description within a minute and a block and a half of the scene of the reported assault, without stopping the suspect for further investigation, would have amounted to a violation of the officer's public trust, in our opinion. Any reasonable and prudent person placed in the identical circumstances as Sergeant Davis would have had reasonable cause to believe that the suspect had committed a felony.

Counsel contends that since appellant was merely walking down the street at the time he was stopped, absent any suspicious circumstances, that the stop and frisk rule does not apply, as set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We do not read Terry v. Ohio to mean that the stop and frisk rule is limited to only circumstances where an officer observes some suspicious conduct on the part of the suspect as the officer approaches. The United States Supreme Court has held that the officer may have other information with enough indicia of reliability to justify a forcible stop of a suspect and the protective seizure of a weapon. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In that case the Court stated:

" . . . The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . .

" . . . (W)e reject respondent's argument that reasonable cause for a stop and frisk can only be based upon the officer's personal observation, rather than on information supplied by another person. . . . "

The forceful stop of the appellant and the pat-down search therefore would be legal under the theory of a search incident to a lawful arrest pursuant to Title 15, § 154, supra, or pursuant to the stop and frisk rule set out in Adams, supra.

II

Appellant contends that his constitutional rights were violated in that he was not represented by counsel at the time he was placed in a lineup.

The lineup complained of was conducted the day after the appellant's arrest and prior to his indictment. Appellant has no constitutional right to counsel at a preindictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

Deborah Lynn Hutchins testified outside the presence of the jury concerning her identification of the appellant. On May 4, 1977, she attended a lineup, consisting of six black males, being conducted under the direction of Police Sergeant Edward Cousins. She said all the men appearing in the lineup were around six feet in height, except one was slightly taller and slim. She estimated that the appellant was the heaviest, and weighed about 170 lbs. After viewing each man, she stated to Officer Cousins that she thought the appellant was the robber, and Cousins told her she had to be certain.

Hutchins said she recognized the appellant immediately when she walked into the lineup room, but she was "afraid to say" until she was positive. She asked Cousins to have each man put on a hat and glasses. She then asked to have the defendant say the words the robber had used when he committed the crime. Immediately after the appellant did so, she positively identified him as the robber. She said no one made a suggestion as to which man in the lineup was suspected by the police, and the identification was left entirely up to her.

Sergeant Cousins testified, outside the presence of the jury, concerning the lineup. He said the appellant was placed in the lineup with five other men from the jail who were of appellant's general height, weight and age. Cousins said that when Deborah Hutchins first viewed the lineup, she said that she was not certain which was the...