Harris v. State

• Decision Date: 16 March 1976
• Docket Number: 6 Div. 889
• Citation: 57 Ala.App. 558,329 So.2d 618
• Parties: Joe Lee HARRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 618

329 So.2d 618

57 Ala.App. 558

Joe Lee HARRIS v. STATE.

6 Div. 889.

Court of Criminal Appeals of Alabama.

March 16, 1976.

Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.

CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to ten years imprisonment in the penitentiary. On the trial he was positively identified by the victim as one of two men who had held the victim up with a shotgun and robbed him as he was proceeding on foot from his work to his home in Tuscaloosa. Defendant did not take the stand, and no evidence was offered in his behalf.

Appellant urges that the trial court committed reversible error in overruling a motion of defendant to suppress any identification resulting from an improperly conducted lineup. One ground of the motion was that the lineup was 'overly suggestive.'

The motion to suppress was not ruled upon until after the State had rested its case. The motion had been filed more than a month before the trial day. Why the ruling on the motion was not invoked before trial is not clear. The record does not indicate that there was any evidence presented on the motion. Testimony as to the lineup identification and an in-court identification was introduced in evidence without objection. All of this apparently took place without any request that the court hear or determine the motion to suppress, which apparently was not mentioned until the court observed at the conclusion of all testimony:

'THE COURT: Gentlemen, in the court file of this case, I note there is a motion to suppress the identification based on the lineup and so forth. I apparently never did rule on the motion. I may have but I want to overrule that motion at this time.'

If defendant thought there was any merit in his motion to suppress, he should have proceeded to obtain a hearing of the motion and a ruling thereon. Nevertheless, we are not persuaded by the evidence before us that lineup procedure was unduly suggestive or intentionally arranged so as to lead to an identification of defendant. According to the record before us, the exclusive source of any information that we should take into consideration, five persons were in the lineup. They were all of the same race as defendant and included the person identified by the victim of the robbery as one of the two who had robbed him. They were not all the same age but 'four of them were . . . within two or three years of one another.' The fifth was a 'good bit older.' Soon after the robbery, the victim had stated to the officers who arranged for the lineup that his robbers were in their mid-twenties. Although it would have been better if all of those in the lineup had apparently been approximately the same age, there is nothing to indicate that the oldest person in the lineup was so different in appearance from the rest as to require his exclusion. Certainly, there is no indication of any intentionally unfair conduct on the part of the officers.

In our opinion, the lineup met the test of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, as the identifications were 'entirely based upon observations at the time of the assault (robbery) and not at all induced by the conduct of the lineup.'

There was also an avoidance of 'a very substantial likelihood of irreparable misidentification,' denounced in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. As stated in Neil v. Biggers, 409 U.S. 188 at 199, 93 S.Ct. 375, at 382, 34 L.Ed.2d 401:

'The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process.'

Fairness to both the suspect and the victim should inhere in a lineup. The cards should not be stacked against either. The sooner the lineup the greater the likelihood of a correct result. The two persons suspected were apprehended about 4:30 A.M., within thirty of forty-five minutes from the time the victim reported the robbery to the police and within approximately an hour from the time of the robbery. They were located in a house about six blocks from the scene of the robbery. The automobile which the victim said the robbers were in just before the robbery was described by the victim to the police, who found it at the house. The police knocked at the door and were admitted by the woman who lived there. About six or seven men in all were there, including defendant and Fred Hamner, the other person brought to the lineup as one of the suspects. Upon being asked by defense counsel whether he knew if they came together, a witness replied 'We were told they came together.', and upon being further questioned by State's counsel on the point he stated that 'The lady that opened the door' when they entered told them 'they came together.' Without any delay, the officers asked the two if they would go to police headquarters to let the victim take...