Ex parte Stout

• Decision Date: 10 February 1989
• Parties: Ex parte Cecil Ray STOUT. (Re Cecil Ray Stout v. State of Alabama). 87-1194.
• Court: Alabama Supreme Court

Page 901

547 So.2d 901

Ex parte Cecil Ray STOUT.

(Re Cecil Ray Stout v. State of Alabama).

87-1194.

Supreme Court of Alabama.

Feb. 10, 1989.

Raymond Johnson, Montgomery, for petitioner.

Don Siegelman, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.

HOUSTON, Justice.

We granted this petition for writ of certiorari to determine whether holding the pre-trial suppression hearing without Stout's presence was a denial of Stout's due process rights under the Alabama and United States Constitutions and, if so, whether it resulted in reversible error.

Cecil Ray Stout was convicted of theft of property in the first degree in violation of Ala.Code 1975, § 13A-8-3, and was sentenced to life imprisonment as a habitual offender.

The evidence presented by the State showed that Ms. Ethel Covington received a phone call from Stout, who identified himself as being with the FBI and stated that he was investigating Union Bank, where Ms. Covington had an account. Stout told Ms. Covington he would look into her affairs at the bank and call her back. The next day, Ms. Covington received several calls from Stout, advising her that there was a dishonest teller at her bank and seeking her assistance in apprehending the teller. Ms. Covington agreed to help and, as advised, went to the bank and withdrew $11,000.00--$5,000.00 in cash and $6,000.00 in a cashier's check. A few days later, she received another call from Stout giving her further instructions concerning the money. Around 11:00 a.m., Stout, dressed in a suit and with a badge pinned on his clothing, arrived at Ms. Covington's house as planned, and she gave him an envelope containing the $5,000 in cash. They then arranged to meet at a specific time in the bank's parking lot, where Ms. Covington was to give Stout the balance of the $11,000.00. Stout then was to go inside, deposit the money, and apprehend the teller. He would then return outside and give Ms. Covington verification of her deposit. However, Ms. Covington never saw her $11,000.00 again. She next saw Stout, in person, on the day of his trial. However, she did make an out-of-court identification of Stout when she selected his photograph from a photographic line-up prepared by the Montgomery Police Department. The trial court, in Stout's absence and over his attorney's objections, conducted a pre-trial hearing on Stout's motion to suppress the identification, based on allegations of a lack of an independent basis and a suggestive procedure in the photographic line-up.

The Court of Criminal Appeals, 547 So.2d 894 relying on Maund v. State, 361 So.2d 1144 (Ala.Crim.App.1978), and Johnson v. State, 335 So.2d 663, 678 (Ala.Crim.App.1976), cert. denied, 335 So.2d 678 (Ala.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976), held that the trial court did not err in conducting the suppression hearing in Stout's absence and that Stout did not have a right to be present at the pre-trial suppression hearing where the police procedure used to identify him was brought into question. At the time of the suppression hearing, Stout was in the Dale County Jail and it was through no fault of his own that he was not present.

In Maund, supra, the appellant was not present at a pre-trial hearing on a motion to disclose the State's evidence, and the Court held that hearings on pre-trial motions "are not viewed as a critical stage of trial, and the defendant does not have a right to be present." Id. at 1148.

In Johnson, supra, the court concluded that the defendant did not have a right to be present during conferences of court and counsel on questions of law; and that the defendant did not have a right to be present at proceedings such as a hearing on a demurrer to the indictment or information, a motion to quash, a plea in abatement, a motion for leave to file an information, a motion to summon witnesses, or a motion to amend the information.

Neither Maund nor Johnson addressed the issue of the defendant's presence at an evidentiary hearing such as that in the instant case, where two prosecution witnesses, Ms. Covington and a police officer, gave sworn testimony concerning the pre-trial identification of Stout. Maund and Johnson merely addressed the issue of the presence of the defendant at a hearing where arguments of law were heard and where no evidence was presented.

The right to a public trial concomitant with the right to due process and the right to confront the witnesses against oneself includes a right of the defendant and his attorney to be present at all stages of a criminal proceeding. The right to be present at one's own trial is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution and Article I of the Alabama Constitution. The defendant has a constitutional right to be heard on all questions of law and fact that may arise at any time during the prosecution. Peagler v. State, 110 Ala. 11, 20 So. 363 (1895). The right of a defendant to confront and cross-examine witnesses is guaranteed by Article I, § 6, of the Alabama Constitution, by Ala.Code 1975, § 12-21-137, and by the Sixth Amendment to the United States Constitution. See Hembree v. City of Birmingham, 381 So.2d 664 (Ala.Crim.App.1980).

In State v. Grey, 256 N.W.2d 74 (Minn.1977), the court held that a pre-trial suppression hearing is an integral part of a criminal trial and that it violates the due process and confrontation clauses of the state and federal constitutions to conduct such a hearing, at which sworn testimony of prosecution witnesses is taken, in the absence of the defendant.

In addition, the court held in People v. Anderson, 16 N.Y.2d 282, 266 N.Y.S.2d 110, 213 N.E.2d 445 (1965), that the constitutional guaranty of due process requires that a defendant be allowed to be present at a suppression hearing.

Furthermore, in People v. DeLuca, 48 Misc.2d 712, 265 N.Y.S.2d 668 (1965), the court held that "one accused of a crime is entitled to be present at every stage of the trial with full opportunity to defend." The court took the position that a suppression hearing clearly is a proceeding bearing upon a criminal defendant's opportunity to defend and is not a stage at which the function of counsel is merely mechanical or formal.

For the foregoing reasons, we conclude that Stout had a constitutional right to be present at the pre-trial suppression hearing, where his identification was in question. However, the question now arises whether Stout's improper exclusion constituted reversible error.

According to Rule 45, Ala.R.App.P.:

"No judgment may be reversed or set aside ... on the ground of ... the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." (Emphasis added.)

Under Rule 45, Stout must not only show error, but must also demonstrate that the error was probably injurious to his substantial rights, Ainsworth v. State, 501 So.2d 1265 (Ala.Crim.App.1986), rev'd on other grounds, 501 So.2d 1269 (Ala.1986); Page v. State, 487 So.2d 999 (Ala.Crim.App.1986) ; Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716 (1967); see also Webb v. State, 33 Ala.App. 520, 35 So.2d 373 (1948). This determination is to be made only after an examination of the entire record. Rosen v. Lawson, supra; Page v. State, supra. The procedure the police used to obtain the identification of Stout was conducted without his knowledge, outside of his presence, and in a manner over which he had no control. Ms. Covington's out-of-court identification of Stout was from a photographic spread that had five individual shoulder photographs of five middle-aged white males with mustaches and with medium to dark hair. Evidence was presented to show that no one identified Stout's photograph to Ms. Covington prior to her...