Floyd v. State, 5 Div. 587
| Decision Date | 29 December 1981 |
| Docket Number | 5 Div. 587 |
| Citation | 412 So.2d 826 |
| Parties | Lewis FLOYD, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Thomas E. Jones, Auburn, for appellant.
Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
Appellant was indicted by the Chambers County Grand Jury for robbery. After trial before a jury, appellant was found guilty and sentenced to thirty years' imprisonment. This appeal followed.
Mr. Hugh Poole, owner and operator of Poole Standard Service Station in the city of Lanett, Chambers County, Alabama, arrived at his station at 6:30 on the morning of June 8, 1979. As he began adding his checks from the previous day, a dark blue or black Chevrolet occupied by two black men pulled up and stopped in front of his station. One of the black men, identified by Mr. Poole as the appellant, asked if the station was open. Mr. Poole replied it was not open but that it would be in a few minutes. Appellant then asked Mr. Poole if they could get a tire repaired. Mr. Poole stated his help had not arrived, but that the help would be there in a little while and they could leave the tire to be repaired. The two men then drove 20 feet, stopped, and then backed up to the sales office door. One of the men got out of the automobile, came into the station, looked around as if to buy something, and then went back to the vehicle. The appellant then reached into the back seat and pulled out a shotgun. He pointed it at Mr. Poole, told him he was being robbed, and that if he tried anything he would be killed. The appellant held the shotgun on Mr. Poole's head, while the accomplice came into the station. They took $700.00 in currency from the cash drawer, $240.00 in currency from Mr. Poole's wallet, $789.64 in checks, and Mr. Poole's wallet and watch. The appellant took Mr. Poole's glasses off and told his accomplice to take Mr. Poole's pistol. Mr. Poole stated he observed the appellant for 30 seconds before appellant reached and removed his glasses. Mr. Poole positively identified the appellant in court as the gunman from the robbery.
After the men robbed Mr. Poole, they took him back into a storage room, bound him with an electric cord, and left him lying on the floor. Mr. Poole then worked his feet loose, went to the phone, and called the police who arrived within minutes. Mr. Poole told police the appellant appeared to be 5' 8 and weighed 175 or 180 pounds.
Officer Jimmy Pogue testified he responded to a call to report to Poole Standard Service Station at 7:00 a. m., on June 8, 1979. He found Mr. Poole standing at the door of the station with his hands bound by an electrical cord. Officer Pogue untied Mr. Poole and then called Investigator Richard Bolt to take over the investigation. The state rested at the close of Officer Pogue's testimony.
Appellant's motion for a directed verdict was denied by the trial judge, and appellant called Josephine Floyd, appellant's wife, to testify. She testified appellant followed his usual morning work day routine on June 8, 1979 and that he did not arise until 7:00 a. m., and did not leave for work until 7:30 or later. She testified Lanett is a twenty minute drive from their home.
I
Appellant contends he was forced to participate in a pre-indictment lineup without benefit of counsel and thereby was denied due process of law. The trial court denied appellant's pretrial motion to suppress the pretrial identification testimony concerning the appellant, after an extended hearing on the same. The appellant testified in support of the motion that he had requested and been denied assistance of counsel prior to being forced to participate in the lineup procedure. Officer Richard Bolt testified that the appellant had been advised of his constitutional rights before the lineup and had then been requested to participate in the lineup.
The state in its case made no mention or reference to the pretrial lineup identification, but rather relied solely upon the victim's in-court identification of the appellant as the man who robbed him.
An accused is not entitled to have counsel provided for him at a pre-indictment lineup. Hatchet v. State, Ala.Cr.App., 335 So.2d 415 (1976). However, he does have the right to have his own employed counsel present upon request. Sparks v. State, Ala.Cr.App., 376 So.2d 834 (1979). The record is not clear as to whether appellant indeed had retained counsel, or if he requested or waived the presence of his attorney. Even so, where the in-court identification of an accused is founded upon clear and convincing evidence based upon observation of the accused, prior lineup identification without counsel's presence does not require reversal. Hatchet, supra; Sparks, supra.
In the instant case, the victim observed the appellant at close range for half a minute as he held a shotgun on him and demanded his money before he removed Mr. Poole's glasses. As well, Mr. Poole observed him during the period prior to the actual robbery as the appellant stopped at the service station to ask for assistance with a tire. The record reflects Mr. Poole's testimony as follows:
The record indicates the basis for Mr. Poole's identification of the appellant was founded upon observation independent of the pre-indictment lineup. We find there was no error precipitated by the lineup or the in-court identification in that there was a sufficient basis for Mr. Poole's in-court identification independent of all considerations other than those perceived and formed by him at the time and scene of the robbery. Floyd v. State, Ala.Cr.App., 387 So.2d 291 (1980).
Appellant's second ground argued as reversible error flows from the same pretrial lineup. He contends the manner in which the lineup was conducted was so impermissibly suggestive as to give rise to irreparable mis-identification. Testimony of the lineup identification was elicited by appellant's counsel on cross-examination and during the presentation of appellant's case. The state made no use of the lineup identification in presenting its case.
The record indicates the participants in the lineup were of the same race and general description. Four sanitation workers dressed in work clothes, not uniforms, participated. The appellant was similarly dressed, possibly having worn cut-off pants, but with a cleaner tee shirt than the sanitation workers who were in the middle of their work day. While the appellant's foot was bandaged, testimony indicated it was not visible to the witnesses from their viewpoint. Nothing was said to the witness to indicate that a particular suspect was included in the lineup, nor that the appellant was the subject the police believed was guilty. Neither was the witness shown any photographs of the appellant at the police station before he was allowed to view the lineup. The appellant was not made to wear any item of clothing associated with the robbery, nor was he requested to do or say...
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