Houston v. State
| Decision Date | 23 January 1973 |
| Docket Number | 1 Div. 284 |
| Citation | 272 So.2d 610,49 Ala.App. 403 |
| Parties | Henry E. HOUSTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Delano J. Palughi, Mobile, for appellant.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Defendant appeals from a conviction for robbery with a sentence of ten years imprisonment.
The State's evidence is to the effect that around 6:30 P.M., August 17, 1971, Willie F. Watson, while on duty as manager of Watson's Apothecary in Mobile, Alabama, was robbed at gunpoint of approximately $111.00. The apothecary was well lighted with four rows of double eight-foot fluorescent lights. The person committing the robbery was in the immediate presence of Mr. Watson, being as close as two feet, 'or closer', for five or six minutes and was engaged in brief conversation by Mr. Watson.
As soon as the robber left the store, Mr. Watson called the police and the report of the robbery was broadcast over the police radio immediately and was received by Prichard Patrolmen, C. D. Everett and Smith at approximately 6:30 P.M. The patrolmen were about one and a half miles from the scene of the robbery when they received the report and proceeded immediately to the scene and within two or three minutes after first receiving the report saw the automobile in which the defendant and two companions were riding emerging from the only exit to Watson's drug store. After a short chase, defendant's car was stopped and the while the driver was getting his driver's license out, Officer Everett observed bullets on the rear floorboard. Upon seeing the bullets, Officer Everett ordered defendant and his two companions to get out of the automobile and when they had done so a search of the automobile was made which disclosed a 'wad' of money struck down between the back seat and the paneling of the automobile as well as two pistols, one being loaded, under the front seat on the passenger side. Two shirts were also found in the automobile. It was not shown from the evidence where the shirts were located nor was it shown whether the pistols and money were in plain view of the officers or where defendant and his companions were standing with relation to the automobile and such objects at the time they were seized.
A Polaroid picture of defendant was made by the officers at the place the car was stopped and then defendant was taken to the police station. Two of the officers went from the place where the automobile was stopped to the scene of the robbery. There they talked with the victim, Mr. Watson, and showed him the Polaroid pictures of defendant, along with pictures of several other persons, to see if he could identify either of them as the person who had robbed him. The victim was unable to identify defendant from viewing the pictures. An objection was sustained to an unresponsive answer made by one of the officers to the effect that Mr. Watson stated the reason he could not identify the defendant from the Polaroid picture was because the picture was too dark. No motion was made to exclude this answer.
Mr. Watson was taken to the police station where he identified the defendant from a line-up composed of defendant and six other persons. This line-up was held approximately one and a half hours after the robbery.
At the trial of the case, five months after the robbery, Mr. Watson testified concerning the robbery and his identification of defendant at the police line-up and made an in-court identification of defendant. No objection was made by defendant to the testimony of Mr. Watson concerning his identification of defendant at the police line-up and his further in-court identification of defendant as being the person who robbed him.
The officers testified without objection concerning the search of the automobile and the seizure of the money, pistols, and shirts.
The defendant testified in his own behalf and denied his guilt.
At the close of the case the trial judge, outside of the presence of the jury, made known to the lawyers his misgivings concerning the police line-up, expressing his view that it was not in keeping with the 'Wade' decision of the United States Supreme Court. During this discussion, the District Attorney produced a Waiver of Counsel purportedly signed by the defendant prior to the line-up, whereupon, over the objection of defendant, the trial judge marked and introduced such waiver into evidence 'as the Court's exhibit.'
The defendant then moved to exclude all of the State's evidence upon the grounds that (1) improper suggestion, and error, was made by exhibiting defendant's photograph to the victim prior to the police station line-up and (2) the defendant was not represented by counsel at such line-up. Defendant's motion to exclude all of the State's evidence was overruled.
The first claim of error is that it was not shown from the evidence that the line-up was performed properly and that it was not done in violation of the defendant's constitutional rights.
This court has examined the whole record and has found nothing to support defendant's claim of error in the manner in which the line-up was conducted. The line-up was composed of seven black males, as is the defendant, and nothing it shown in the record whereby any improper influence or suggestion was made in any manner upon the victim who viewed the line-up from behind a two-way mirror and identified the defendant approximately one and a half hours after having seen him in a good light from as close as two feet, and having been in his presence for five minutes and had a brief conversation with him.
Defendant complains of the fact that the victim was shown defendant's photograph prior to the line-up and argues that this was suggestive to the point that his subsequent identification and victim's testimony of such upon the trial violated his right to due process. It should be pointed out that for some reason, Mr. Watson did not recognize the defendant from the pictures shown him prior to the line-up. Therefore, it is hard to see how the act of showing him a number of pictures could have influenced his later identification of defendant at the line-up. Assuming the victim had been able to identify the defendant from the photographs shown him, this, standing alone, would be insufficient to show improper suggestion to the extent that his later line-up identification would be inadmissible. In Simmons v. United States, 390 U.S. 377 p. 384, 88 S.Ct 967 p. 971, 19 L.Ed.2d 1247 (1968), the Court said:
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