Hall v. State, F-76-919

• Decision Date: 27 May 1977
• Docket Number: No. F-76-919,F-76-919
• Citation: 565 P.2d 57
• Parties: Raymond Jover HALL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 57

565 P.2d 57

Raymond Jover HALL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-919.

Court of Criminal Appeals of Oklahoma.

May 27, 1977.

John K. Bounds, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

The appellant, Raymond Jover Hall, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, Case No. CRF-76-124, for the offense of Robbery With a Firearm, in violation of 21 O.S.Supp.1973, § 801. He was tried before a jury, which returned a verdict of guilty and sentenced the defendant to fifty (50) years' imprisonment. From that judgment and sentence the defendant has perfected his appeal to this Court.

The evidence adduced at trial was that on December 8, 1975, Sally Stewart and Gale Wood were working in the leasing office of an apartment complex in Tulsa, Oklahoma. Just before closing time two men came into the office and asked to make an application for an apartment. Ms. Stewart showed the men two available apartments, and then returned with them to the office to get information for a leasing form. As she was writing, one of the men produced a gun. The three of them then went into a back office where Ms. Wood was working, and one of the men locked the door. The man with the gun ordered Ms. Wood to open the desk drawers and take out the money; the other man ordered both women to remove their diamond rings, and also took Ms. Wood's watch. The women were then ordered to lock themselves in the bathroom for five minutes. When they came out the money was gone, and their purses had also been taken. In a subsequent photo spread the two women were unable to identify the man with the gun, but did identify the defendant as the second man.

The defendant's first and third assignments of error pertain to the in-court identification of the defendant by the victims. In his first assignment, the defendant contends that the trial court erred by not quashing the in-court identification, but we cannot agree with this assignment.

The trial court held an in camera hearing as required by Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Thompson v. State, Okl.Cr., 438 P.2d 287 (1968), before admitting the in-court identification. At that hearing Detective Kenneth Brown of the Tulsa Police Department testified that one week after the robbery, he gave the victims a stack of approximately fifty pictures to examine, to see whether the women could identity anyone. The two women were separated and did view the picture together. Ms. Stewart picked out two pictures of the defendant, but could not make a positive identification, while Ms. Wood picked out a photograph of the defendant as one of the robbers.

At this point Detective Brown testified:

"A. I just asked her if she was positive and she said yeah. And then I asked her if she noticed anything unusual about the man that came in an robbed her and she said no. And I asked her if she noticed anything unusual about the photograph and she said no. And I asked her if she noticed anything unusual about the guy in the photograph's eyes, and she looked at it for a little bit and she said, 'Well, he's got one eye that droops.' " (Tr. 31, 32).

Testifying before the jury, Officer Mark Field, the original investigating officer, stated that there was no mention of "drooping" eye in the original report, yet both women testified that they noticed the defendant's eye at the time of the robbery.

In addition to the photo spread, the two women later identified the defendant at a line-up at the police station. The original description of the robber included the fact that he was wearing dark pants with silver studs set in them. In Thompson v. State, supra, we set out guidelines for the conduct of line-ups. Those guidelines provide, inter alia, that a suspect should not be clothed in such a manner as to attract special attention. But when the defendant appeared in the line-up, he was wearing dark pants with silver studs set in them. The defendant's contention is that between the photo spread, where the eye defect was pointed out to the witnesses and the line-up where the defendant was dressed as the robber had been dressed, the in-court identification was hopelessly tainted, and should not have been admitted.

Certainly the conduct of the Tulsa police in this case is not to be condoned. The in person line-up should have been conducted with all the line-up participants clothed in studded pants, or none of them. However, we are impressed with the fact that the first identification was made by the women from fifty photographs which they viewed while separated and from which they independently identified the defendant....