Donilson v. State
| Decision Date | 04 October 1977 |
| Docket Number | 6 Div. 576 |
| Citation | 350 So.2d 738 |
| Parties | Charles Curtis DONILSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
B. Don Hale, of Hale & Williams, Cullman, for appellant.
William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
The indictment charged the appellant with the robbery of George W. Threadgill by taking a large quantity of prescriptive drugs of the value of $240.00 and $198.00 in currency from his person and by putting him in fear, etc. The jury found the appellant guilty as charged and fixed punishment at twenty years imprisonment. The trial court sentenced the appellant accordingly.
George William Threadgill testified that he was employed as a pharmacist in charge of the Blue and Gray Drugstore in Hanceville, Alabama, on June 28, 1976. Threadgill indicated that he was on duty in the prescription department about 4:00 o'clock in the afternoon when two men entered the store. He testified that one of them, whom he positively identified in court as the appellant, approached him and handed him a cloth bag, then said, "Give me your narcotics." He testified that one of the saleswomen, a Mrs. Cargo, was dialing the telephone, and she was told to hang up the telephone and to lie on the floor. Threadgill stated he gave the key to the narcotics drawer to the appellant, and he unlocked this and took a large number of vials and capsules containing various tablets. The appellant also unlocked the drawer containing liquid narcotics, then placed them in another bag. The appellant then asked him where the amphetamines were, and he told him that all the drugs were in those two drawers. Threadgill was then made to lie down on the floor. From there he observed the appellant opening the cash register and taking the cash at pistol point. Threadgill stated that he lay on the floor for a few minutes until he was sure the appellant was gone, then got up and telephoned the police.
Threadgill made a positive in-court identification of the appellant, indicating that he had a good look at him for several minutes as he unlocked the narcotic drawers and also when he opened the cash register, taking the proceeds therefrom. He stated that he was approximately two feet away from him at this time. Threadgill stated that he made up a list of the drugs taken from the inventory at the store. From the record (R. pp. 21-22):
On cross-examination Threadgill was asked about some photographs which were brought to him over a period of several weeks by the Sheriff's deputies. He testified that Deputy McAnnally brought photographs on several occasions, but it was not until October 2, 1976, that he selected the appellant from a group of eight photographs exhibited to him.
Also, on cross-examination, Threadgill stated that the appellant was carrying a short barrel pistol at the time of the robbery.
Threadgill further stated that the appellant and his companion were also identified by Kathleen Griffith, who was also on duty in the store, and near the front during the time of the robbery. He stated that Mrs. Griffith looked at the photographs and that she also made a positive identification. The photographs were admitted in evidence over the appellant's motion and objection.
Kathleen Griffith testified that she had been employed at the Blue and Gray Drugstore in Hanceville, Alabama, for approximately fifteen years as of June 28, 1976. She stated that about 4:00 o'clock in the afternoon on that date the appellant, whom she positively identified in court, and a companion, Steve Baird, entered the drugstore and announced, "This is a holdup." She was directed to sit down at pistol point while the appellant went over to the prescription department with a bag in his hand. She stated that she later saw the appellant come back to the cash register and reach into it, though she could not see inside the register. She stated that after the two men left, the police were notified, and that she gave a description of each of the men to the Sheriff's deputies.
On cross-examination Mrs. Griffith testified that groups of photographs were brought to the drugstore for her to observe on several occasions, and it was not until October 2, 1976, that she selected the photograph of the appellant. She stated that she selected this photograph without talking with Mr. Threadgill, or Deputy McAnnally, or anyone else.
On cross-examination Mrs. Griffith was handed a group of photographs, and she immediately selected the appellant's photograph, which had been marked as State's Exhibit 1, as being the photograph that she had selected on October 2, 1976.
On redirect examination Mrs. Griffith stated in response to questioning that her identification was based solely on her recollection of seeing the appellant on June 28, 1976, in the Blue and Gray Drugstore in Hanceville, Alabama, with pistol in hand.
The appellant's motion for a directed verdict and to exclude the State's evidence were overruled.
Steven Russell Baird testified that he was presently being held in Walker County to answer some charges. He testified that he had a record of several felonies. He admitted that he committed the robbery of the Blue and Gray Drugstore in Hanceville, Alabama, on June 28, 1976. He testified that he had entered a guilty plea and had been sentenced for this.
Baird testified that he first met the appellant, Charles Curtis Donilson, in early 1977 when he was placed in the "bull pen" in Cullman County with Donilson. He testified that Donilson was not his accomplice, that he was not with him at the time of the robbery of the Blue and Gray Drugstore.
On cross-examination Baird admitted receiving a thirty-year sentence for the robbery in question, and also admitted receiving a fifteen-year sentence in Walker County for the robbery of a drugstore.
Appellant's counsel argues that the identification in court of the appellant was based on an impermissibly suggestive photographic identification, and cites us to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.
The test for this Court to apply under Simmons, supra, is to consider the totality of circumstances presented by the record. While it is true that approximately three months passed before Mr. Threadgill and Mrs. Griffith each, separately, selected the photographs of the appellant from those being shown to them, each nevertheless did so according to the record, without hesitation and without having to confer with anyone else. Moreover, each of them stated that a number of photographs were shown to them on several occasions before selecting the photograph of the appellant.
Both Mr. Threadgill and Mrs. Griffith testified that their positive in-court identification was based upon their view of the appellant at the time of the robbery on June 28, 1976.
We are therefore of the opinion that the in-court identification of the appellant was not so tainted by the pretrial exhibition of the photographs to the two witnesses, and therefore the trial court properly permitted Mr. Threadgill's and Mrs. Griffith's testimony to be submitted to the trial jury. Redmon v. State, 47 Ala.App. 421, 255 So.2d 604; Dawson v. State, 47 Ala.App. 293, 253 So.2d 362; McGhee v. State, 48 Ala.App. 330, 264 So.2d 560; and Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied Ala., 339 So.2d 601.
Appellant's counsel also submits that a pretrial lineup here took place, and that counsel should have been present at the time of such lineup.
Mr. Threadgill and Mrs. Griffith both testified that when they were walking down the hallway prior to trial, they could not recall observing the appellant, Charles Curtis Donilson, in the witness room, and that was not the basis of their identification of the appellant. We do not consider this type occurrence to be a police lineup within the due process of law. Cannon v. State, 53 Ala.App. 509, 301 So.2d 272. Moreover, this Court is firmly committed to the position where, as here, the identification process took place prior to indictment, counsel is not required. Swicegood v. State, Ala.Cr.App., 343 So.2d...
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