Fletcher v. State

• Decision Date: 24 August 1976
• Docket Number: 8 Div. 730
• Citation: 337 So.2d 58
• Parties: Levon FLETCHER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 58

337 So.2d 58

Levon FLETCHER v. STATE.

8 Div. 730.

Court of Criminal Appeals of Alabama.

Aug. 24, 1976.

Robert M. Shipman, Huntsville, for appellant.

William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a conviction of burglary in the second degree and a sentence of eight years imprisonment.

Sparkman High School teacher Walter Dulaney and two of his students testified that as they drove by Mr. Dulaney's residence in an automobile they noticed another automobile in or close to the driveway; Mr. Dulaney went to the back door. He testified that the back door had been broken into. The students stayed toward the front of the house and saw a young man coming around the side of the house, whom they identified as defendant. He was also seen by Mr. Dulaney, who also identified him as defendant. The three witnesses testified that defendant hastily took off in the parked automobile. There was little, if any, evidence that anything had been stolen from the house, though Mr. Dulaney said that 'the chest of drawers had been pulled out and had been rambled through' and things had been 'piled at the door,' including two vacuum cleaners and two or three radios. He said a tire tool, that did not belong to the house, was found in the house near the chest of drawers.

Defendant took the stand and denied the charge against him and said that he was not the person described by the named witnesses for the State.

The only point made by appellant on appeal is as to the identity of defendant and more specifically as to the action of the court in overruling defendant's objection to the in-court identification of defendant by each of the three witnesses mentioned. Appellant urges that the in-court identification should not have been permitted, that it was tainted by a suggestive lineup in which defendant was identified by each of the witnesses.

The lineup was conducted the day after the alleged burglary. In the lineup were six young men of the same color or race as defendant. Appellant bases his charge of suggestiveness in the lineup procedure primarily upon two grounds: (1) the viewers of the lineup were informed by the officers that the guilty party was in the lineup and (2) a toboggan, like one the witnesses said defendant had in his hand as he left the house to get into his automobile the day of the burglary, was in defendant's hand, or close to defendant, at the time of the lineup.

In contending that the in-court identification of defendant was rendered inadmissible in evidence by reason of the asserted defects in the lineup procedure, appellant cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, as authority for his assertion, 'that in any pre-trial lineup or identification procedure, the Defendant must be afforded counsel to protect his rights at such a proceeding.' Neither Wade nor Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, decided the same day as Wade, went as far as urged by appellant. In the case before us, there was no indictment at the time of the lineup and there had been no institution of any prosecution against defendant. To such a situation, the necessity for the presence of counsel for defendant or a waiver of the right to counsel at such time does not apply. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Even so, an in-court identification is inadmissible if it is so tainted by a previous, unnecessarily suggestive lineup identification that the origin or source of the in-court identification was not independent of the lineup. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Hannon v. State, 48 Ala.App. 613, 266 So.2d 825; Smith v. State, 49 Ala.App. 147, 269 So.2d 164; Houston v. State, 49 Ala.App. 403, 272 So.2d 610; McCay v. State, 51 Ala.App. 307, 285 So.2d 117; Lindsey v. State, Ala.Cr.App., 331 So.2d 797.

Quite understandably, there were some discrepancies in the testimony of witnesses as to the lineup procedure. They are insubstantial when taken as a whole and considered with the frequent impossibility of witnesses to see, to hear and to remember alike all of the details of a transaction, especially when such details are not such as are calculated to impress them deeply. One witness said the police informed him before the lineup that they had a suspect; another said that he was informed by one of the witnesses that the police had told him they had the person who broke into the house, but that the police did not say the man was in the lineup; the third witness said that Mr. Dulaney told him at school the morning of the lineup 'that they had caught him.' These statements, whether considered together or separately, whether reconcilable or not, would have had little, if any, tendency toward a misidentification of defendant, unless it be said that a lineup per se tends to lead to misidentification. Reason dictates to any witness attending a lineup that someone suspects someone in the lineup. The statements referred to do not show that the witnesses were any better informed, or any more likely influenced to misidentify defendant, than if nothing had been told any of them other than that they were to view a lineup. A lineup is not a test run, a fire drill or an academic proceeding. The victim of a crime has the right to assume when asked to come to a lineup that he is not being toyed with, that there is more than an infinitesimal chance of a member of the lineup being the criminal, which would be true of a lineup in which no one who arranged it suspected or had any reason to suspect that the criminal had been apprehended. It is perfectly natural for persons called to view a lineup to understand that a suspect is in the lineup. That they are told that he is, by someone connected with the lineup, although generally inadvisable, does not contaminate the proceeding. Furthermore, in a dialogue relative to a lineup, it is readily understandable that the passive one of...