Frazier v. State, 6 Div. 913

• Citation: 331 So.2d 404,57 Ala.App. 648
• Decision Date: 20 April 1976
• Docket Number: 6 Div. 913
• Parties: Roger FRAZIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 404

331 So.2d 404

57 Ala.App. 648

Roger FRAZIER v. STATE.

6 Div. 913.

Court of Criminal Appeals of Alabama.

April 20, 1976.

Roger A. Brown, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found defendant guilty of robbery and fixed his punishment at imprisonment in the penitentiary for ten years. He was adjudged and sentenced accordingly.

On appeal no question is raised, and our review of the record convinces us that no serious question can be raised, as to the sufficiency of the evidence to support the verdict and judgment.

Only two questions are raised by appellant: (1) whether the trial court committed error in charging the jury on the subject of flight and (2) whether the trial court erred in allowing in-court identification of defendant and ruling that it was not unduly suggested by the lineup procedure as conducted.

We see no necessity for narrating any testimony other than some of that which bears upon the two questions presented.

Defendant was identified by the victim of the robbery, Mrs. Hattie Bell Burns. She testified that in robbing her, defendant and an accomplice grabbed the cash register drawer and ran out of the door of the Majik Market together. Three days after the robbery, defendant was arrested at his apartment by Officer Robert Walker and another officer. While the other officer was knocking on the front door, Officer Walker said that he watched a back upstairs window of the apartment and saw 'half of a body come out of the top window.' Officer Walker, armed with a shotgun, ordered the person to come on out but he 'went back inside of the house.' The other officer, Sergeant Newfield, testified that as he heard Officer Walker on the outside hollering from 'outside of the apartment' he went inside the room, found defendant there and arrested him.

Officer Walker, upon being interrogated by defendant's counsel, was unable to testify that the person he saw attempting to come out of a window of the apartment was defendant, but the circumstantial evidence presented pointed persuasively to defendant, and to him alone, as attempting to flee and escape apprehension or arrest. This constituted a sufficient basis for the court's charge as to flight.

The charge as to flight is justified by reason also of the flight from the store by the robbers. Muse v. State, 29 Ala.App. 271, 196 So. 148, cert. denied 239 Ala. 557, 196 So. 151. In this particular case, the flight from the store had no relevancy to the question of whether defendant was one of the robbers, but the burden of proof was, at all times, on the State to convince the jury beyond a reasonable doubt by the evidence that defendant was guilty of the robbery alleged. Although perhaps unnecessary, evidence as to all of the circumstances of the alleged robbery, including the manner in which defendant left the store, was pertinent to the question of whether all of the elements of robbery existed.

In urging that the in-court identification of defendant by the victim of the robbery should not have been allowed in evidence, appellant relies upon the principle that an illegally suggestive pretrial identification proceeding may preclude an incourt identification. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S....