Hobbs v. State
| Decision Date | 26 May 1981 |
| Docket Number | 1 Div. 185 |
| Citation | 401 So.2d 276 |
| Parties | Oscar Peter HOBBS and Elijah Pickett v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Floyd C. Enfinger, Jr., of Lacey & Enfinger, Fairhope, for appellant Hobbs.
Mary E. Murchison of Murchison & Thomas, Foley, for appellant Pickett.
Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
Appellants Oscar Peter Hobbs and Elijah Pickett were indicted in separate indictments by the Grand Jury of Baldwin County in July of 1980 for rape in the first degree. By agreement of the State and the defendants, the two were tried jointly in the Circuit Court of Baldwin County. The jury returned a verdict of guilty as to both defendants and both were sentenced to life imprisonment.
The jury returned separate verdicts as to each defendant and there was a separate judgment entry in each of the cases based upon the verdicts of the jury. This was proper. Ala.Dig.Crim.Law, Key No. 983.
Appellants contend that the trial court committed error in allowing the in-court identification of them by the prosecutrix after she had viewed them in a "showup" at the alleged scene of the crime just hours after the rape occurred.
On June 29, 1980, the prosecutrix and her fiance left Mobile, Alabama, where the prosecutrix lived, and went to the beach for the day in Gulf Shores, Alabama. They arrived in Gulf Shores at approximately twelve noon that day and remained on the beach until four or five p. m., then went to the Florabama Lounge. After drinking five or six beers the prosecutrix and her fiance left Gulf Shores at approximately six p. m. heading back to Mobile. The prosecutrix testified that, shortly after they left Gulf Shores, she fell asleep because she had worked a twelve hour shift the night before and became sleepy after drinking the beer. Her fiance continued to drive toward Mobile until he got to Daphne, Alabama, where he pulled off the road on Highway 98 and also went to sleep.
The prosecutrix testified that, when she woke up, she was in the back seat of another automobile and a man was attempting to rape her. She testified that, although she resisted and scratched the man, he was successful in raping her. There were two other men in the automobile. They drove the automobile to a deserted area near the beach in Daphne where the prosecutrix was raped by another man and was made to perform oral sex.
This ordeal lasted for one to two hours. The prosecutrix testified that, although the lighting was not very good, she was able to see them because of the closeness of the men and the length of time involved.
Following the rapes, the prosecutrix was thrown into the bushes and the men who raped her left. She made her way to the highway where she was picked up and taken to the Daphne Police Station. Upon arrival the prosecutrix told the police that one of the men that raped her had a beard and that they were in a light blue Cadillac. No other description was given. She told them the approximate location of where the rapes took place. The man who took her to the police station also told the police that he found the prosecutrix near the road to Paradise Beach off Highway 98 in Baldwin County. The Daphne police drove down to Paradise Beach where they found two men beside a light blue Cadillac. The prosecutrix's towel was in the back seat of the Cadillac. The prosecutrix was brought to the scene to view the two men. With appellants standing two to three yards from the prosecutrix who was still in the back seat of the police car, a light was shined on the appellants and the prosecutrix identified them as the men who raped her. She said that she was "one hundred percent" (100%) sure about the one with the beard but not as sure about the other one. This took place approximately one and one-half (11/2) hours after the rape.
At the trial the prosecutrix made an in-court identification of both appellants over counsel's objection. Appellants both claim that the trial court committed error by allowing the in-court identification because the prior showup identification was impermissively suggestive.
Whether a procedure used for an identification is so impermissively suggestive as to create a substantial likelihood of irreparable misidentification and violates due process depends on the totality of the circumstances. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.
A showup is not inherently unfair, and it is settled law that prompt, on-the-scene confrontations are not constitutionally impermissible, but are consistent with good police work. Donahoo v. State, Ala.Cr.App., 371 So.2d 68; Robinson v. State, 55 Ala.App. 658, 318 So.2d 354; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623. A showup by its inherent nature is, however, suggestive. Brazell v. State, Ala.Cr.App., 369 So.2d 25, cert. denied, 369 So.2d 31 (Ala.1979); Weatherford v. State, Ala.Cr.App., 369 So.2d 863, cert. denied, 369 So.2d 873 (Ala.1979).
Once a determination has been made that an identification procedure is suggestive, it must be determined whether the identification was reliable even though the prior confrontation was suggestive. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 34 L.Ed.2d 401. The totality of the circumstances must be considered in assessing the reliability of the identification. Factors to be considered in assessing the reliability of an identification were set out by the United States Supreme Court in Neil v. Biggers, supra. These factors, which include the opportunity of the witness to view the criminal act at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation, must be weighed against the suggestiveness of the identification. Neil v. Biggers, supra; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850.
In the case at bar the prosecutrix viewed the appellants at close range for a period of one to two hours. The prosecutrix testified that there was sufficient light to view both appellants during the rape as they were "right in my face."
The prosecutrix did not give a description of her attackers at the Daphne Police Station except to say that one had a beard and that they were in a blue Cadillac. However, within a short period of time after the prosecutrix came to the Daphne Police Station the appellants were found at the scene of the rape and the prosecutrix was taken there to view them.
When the prosecutrix viewed them, appellants were standing beside a blue Cadillac which contained the prosecutrix's towel. Testimony of the prosecutrix indicates that this confrontation took place approximately one and one-half hours after the rape.
At the confrontation the prosecutrix identified one of the appellants as "one hundred percent" (100%) sure. The statement as to the other one was that "... I can't be for sure ..." While the degree of certainty of one of the appellants is less than one hundred percent (100%), it is not necessary that an identification be given with absolute certainty before allowing an in-court identification.
These factors must be weighed against the effect of the suggestive confrontation to determine the reliability of the identification. Reliability is the linchpin of the admissibility of identification testimony. Stovall v. Denno, supra.
Although a showup is inherently suggestive, it is also considered to be consistent with good police work when done promptly after the commission of the crime. Donahoo v. State, Ala.Cr.App., 371 So.2d 68; Robinson v. State, 55 Ala.App. 658, 318 So.2d 354; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623. In the case at bar the confrontation took place at the scene of the crime within approximately one and one-half hours after the crime. Two hours or less has been held to be an acceptable period of time between the crime and the confrontation. Donahoo v. State, supra.
Judge Burger, now Chief Justice of the Supreme Court of the United States, in Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, stated:
Although the use of the showup is a suggestive identification procedure, it can also be a procedure which tends to enhance the reliability of the identification. Bates v. United States, supra; Carter v. State, Ala.Cr.App., 340 So.2d 94.
All of the factors considered and weighed against the effect of the suggestiveness of the confrontation would indicate that the in-court identification was reliable and there was not a substantial likelihood of irreparable misidentification.
Appellants also claim that error was committed in allowing the testimony by the prosecutrix of the out-of-court identification. The record indicates the following testimony concerning the confrontation:
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