Hill v. State, F-76-953

• Decision Date: 28 July 1977
• Docket Number: No. F-76-953,F-76-953
• Citation: 567 P.2d 516
• Parties: Cleo HILL, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 516

567 P.2d 516

Cleo HILL, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-953.

Court of Criminal Appeals of Oklahoma.

July 28, 1977.

Rehearing Denied Aug. 19, 1977.

An appeal from the District Court, Okmulgee County; Kirk Woodliff, judge.

Tom J. Laub, Okmulgee, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Donnie G. Pope, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellant Cleo Hill, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Okmulgee County, Case No. CRF-75-218, for the offense of Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.Supp.1973, § 801 and 21 O.S.1971, § 51. At the conclusion of a bifurcated jury trial his punishment was fixed at forty (40) years' imprisonment, and from this judgment and sentence a timely appeal has been filed.

The State's first witness was Sharon Daniels who testified that late in the afternoon of November 26, 1975, she was employed as a waitress at the Winchell's Donut Store located at 101 North Wood Drive in Okmulgee. At approximately 5:00 p. m. on that date, a man entered the establishment and ordered some donuts. While his order was being filled by Ms. Daniels he entered the restroom, and upon returning he opened his coat and pointed a sawed off shotgun at the witness. The man ordered Ms. Daniels to give him all the money in the cash register. Ms. Daniels immediately complied with this order, and then watched the man leave. The police were then called and Ms. Daniels was shown photographs at the store by Detective Baker. Ms. Daniels selected a photograph of the defendant as the man who had just robbed her. At this point the witness identified in court the defendant as having been the robber.

Charles Talton was the second witness for the State. He stated that on November 26, 1975, he was an Okmulgee police officer and investigated the robbery at the donut shop. On cross-examination Officer Talton stated that Sharon Daniels had described the robber as having a scar on the left side of his face.

The last witness to testify for the State was Fred Baker. He stated that he had been a member of the Okmulgee Police Department for over 20 years, and currently held the rank of captain. On November 26, 1975, the witness investigated the robbery at the donut shop and showed six photographs of suspects to Sharon Daniels. Ms. Daniels then selected the photograph of the defendant.

At this point in the trial the State rested, and the jury was excused.

Defense counsel then demurred on grounds of insufficiency of the evidence. The demurrer was overruled by the trial court. Defense counsel then rested without presenting any evidence.

The defendant's first assignment of error is that the trial judge erred by refusing defendant's motion for a continuance. The general rule in Oklahoma with regard to the granting of continuances is that they are within the sound discretion of the trial court, and barring a clear abuse of discretion this Court will not interfere with the trial court's ruling on such a motion. Gossett v. State, Okl.Cr., 553 P.2d 215 (1976); and, Wampler v. State, Okl.Cr., 553 P.2d 198 (1976). In the case at bar the record shows that just prior to trial the defendant's trial attorney, Bill Barksdale moved for a continuance on the ground that a possible defense witness could not be located because the witness had recently left the Okmulgee area. The trial judge's response was as follows:

"THE COURT: Gentlemen, this case was filed in November, 1975, and the defendant was bound over in January of 1976. He has been confined to the County jail, as I understand it, for some time on this or another matter or both. In any event, he's there now. I have examined the file and in connection with subpoenas I note that at the defendant's request, he was given a continuance, I believe earlier. Am I not correct, Mr. Barksdale?

"MR. BARKSDALE: Yes, Your Honor, that was for the reason that he had been tried at the same term of Court.

"THE COURT: And so we'll deny the request and we'll deny the motion and in view of the fact that Mr. Hill is here and he's represented by very competent counsel, we'll proceed to trial. The motion is overruled."

After reading the record we observe that a lengthy period of time elapsed between the date charges were filed, December 3, 1975, and the date of trial, May 12, 1976. During this period of time the defendant had more than sufficient opportunity to make the necessary investigation and to subpoena witnesses. Furthermore, the record discloses that on March 26, 1976, the defendant was granted a continuance in this case so as not to be placed on trial before the same jury panel which would hear another case then pending against him. Since no witnesses were subpoenaed, the defendant has also failed to show that he made a diligent effort to secure the attendance of possible witnesses. As long ago as 1910, this Court in Musgraves v. State, 3 Okl.Cr. 421, 106 P. 544, 545, stated:

". . . No reason is given why process was not procured for the witness at an earlier date. The law requires diligence in these matters. A defendant cannot sit still and wait until just before his trial before he begins to get ready for trial. He must be diligent; and, if special reasons exist upon which a reasonably prudent man would rely, which would cause him to fail to exercise the utmost diligence, he must state these reasons in his motion for a continuance as an excuse for not having exercised the utmost diligence. . . ."

We recently reaffirmed this rule in Jerry v. State, Okl.Cr., 496 P.2d 422 (1972). Under the circumstances of this case, we can find no abuse of discretion by the trial court, and the first assignment of error is, therefore, without merit.

For his second assignment of error, the defendant alleges two propositions. First, that the trial court erred in admitting the in court identification of Ms. Daniels because it was based on an improper lineup. Specifically, he claims that the photographic lineup shown Ms. Daniels shortly after the robbery was tainted because none of the men pictured, except the defendant, resembled the man who robbed her. In our opinion this proposition is patently frivolous. We have carefully examined the photographs and find that all of the men pictured have the same facial and body characteristics, are of the same race, and are all of the same approximate age. Furthermore, nothing appears in the record that would show that the police displayed these photographs to Ms. Daniels in any kind of suggestive manner. In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United States Supreme Court, speaking through Mr. Justice Harlan, held that:

". . . each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. . . ." (Citation omitted)

In light of the above holding and our prior determination that the lineup was not suggestive we dismiss this proposition as having no merit.

The second proposition by the defendant as part of his second assignment of error is that failure of the trial court to hold a hearing outside the jury's presence on the admissibility of the photographs resulted in prejudicial error. We dealt with this same contention in Young v. State, Okl.Cr., 531 P.2d 1403 (1975), where at page 1406 it is stated:

"Finally, under this proposition defendant alleges the trial court erred in not holding an evidentiary hearing outside the presence of the jury to determine whether the in-court identification was tainted. The record does not reflect that the defendant at any time prior to or during the course of the trial requested an evidentiary hearing on this matter. The defendant's right to have a hearing outside the presence of the jury is dependent upon his raising a timely objection to the in-court identification of the defendant. See, Towning v. State, Okl.Cr., 521 P.2d 415 (1974) and cases cited therein."

Nowhere in the record in the case at bar have we been able to find a request by defense counsel for an evidentiary hearing of this kind. Although defense counsel did object to the in court identification by Sharon Daniels, this objection was not made until the end of the State's case in chief. The objection was, therefore, not timely because the jury had already heard all of Ms. Daniels' testimony. For these reasons we find no error in the court's action and hold that defendant's second assignment of error is without merit.

The third assignment of error also concerns the photographs shown to Ms. Daniels. The photo of the defendant had markings on it which are explained by the testimony of Captain Baker, who stated:

"Q. (BY MR. WEBB) What is this number here?

"A. This number here?

"Q. Yes.

"A. Number 6.

"Q. What does that denote, if anything?

"A. This picture had been used prior to this time in a line-up, and that is the number placed on it at that time.

"Q. Is that the picture that was shown to and identified by Miss Daniels?

"A. It is.

"Q. Without question, with respect to that picture, in that picture only, what did she do apart from identification as to that picture?

"A. She placed her initials and date on a piece of tape that was on this picture.

"Q. Is that tape on there now?

"A. No, sir.

"Q. Was it on there as of the Preliminary Hearing?

"A. Yes.

"Q. Who is that a picture of?

"A. Cleo Hill, Jr."

The defendant claims that the police markings on photographs shown to eyewitnesses inherently suggested the photograph which the police desired the witnesses to select. Riley v. State, 74 Okl.Cr. 363, 126 P.2d 284 (1942), is cited as authority for ...