Hull v. State

• Decision Date: 21 August 1992
• Citation: 607 So.2d 369
• Parties: Carol Lacey HULL v. STATE of Alabama. CR 91-342.
• Court: Alabama Court of Criminal Appeals

Page 369

607 So.2d 369

Carol Lacey HULL v. STATE of Alabama.

CR 91-342.

Court of Criminal Appeals of Alabama.

Aug. 21, 1992.

Rehearing Denied Sept. 30, 1992.

Certiorari Denied Nov. 20, 1992

Alabama Supreme Court 1920053.

Thomas O. Bear, Foley, for appellant.

James H. Evans, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

In 1989, Carol Lacey Hull, the appellant, was convicted of robbery in the first degree and was sentenced as a habitual offender to imprisonment for life without possibility of parole. This conviction was reversed on direct appeal. Hull v. State, 581 So.2d 1202 (Ala.Cr.App.1990). The appellant was retried in 1991, was again convicted, and was again sentenced to imprisonment for life without possibility of parole. This appeal is from the appellant's second conviction and sentence.

THE 1989 TRIAL

At the 1989 trial, the State presented evidence that on February 1, 1987, a lone gunman robbed the pharmacist at Stacey's Drugstore in Bay Minette, Alabama, then ran across the street to a waiting automobile being driven by a woman. Eyewitness Becky Ryan testified before the jury that Kenneth Hall, the investigating officer, testified that Ryan did not identify the appellant's photograph from a photographic array until almost one year after the robbery. He stated that he prepared the array and that this array was "composed of four color photographs and one black and white photograph.... The black and white photograph was a photograph of the [appellant]." Hull, 581 So.2d at 1203-04.

                she was shown a group of photographs a week and a half to two weeks after the robbery and that she identified one of the photographs as that of the driver of the get-away car.  Hull, 581 So.2d at 1204, 1207 n. 2.   She then made an in-court identification of the appellant as the get-away driver.  Hull, 581 So.2d at 1204
                

The appellant maintained that the pre-trial photographic array was unduly suggestive, that Ryan's in-court identification was tainted by this suggestive array, and that her identification testimony should be excluded because her in-court identification of the appellant had not been shown to be independently reliable. R. 125-32 (CR 89-66). ¹ Although the trial court correctly recognized that the photographic array containing a black and white photograph of the appellant and color photographs of four other subjects was "impermissibly suggestive," R. 139-40 (CR 89-66), see Hull, 581 So.2d at 1204-05, it denied the appellant's motion to exclude Ryan's identification testimony.

THE FIRST APPEAL

On direct appeal from her 1989 conviction, the appellant argued that "the in-court identification by [Ryan] should have been excluded because that identification was the product of an unduly suggestive photographic array displayed to the witness prior to trial and had no independent basis of reliability." Hull, 581 So.2d at 1202-03. Applying the factors set out in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), this Court determined that the State, in fact, had not met its burden of proving that Ryan's in-court identification of the appellant "had an independent basis of reliability." Hull, 581 So.2d at 1207. Of the five indicators of "independent reliability" set out in Neil v. Biggers, the State failed to offer evidence on three. See Hull, 581 So.2d at 1205-06. We held that the unduly suggestive pre-trial photographic line-up, "coupled, as it was, with evidence indicating a lack of reliability," constituted "a 'very substantial likelihood of irreparable misidentification,' " and that, "[c]onsequently, Ryan's in-court identification of the [appellant] should have been suppressed." Hull, 581 So.2d at 1207 (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977)).

Although we noted that "the only evidence incriminating the [appellant was] the identification by Ryan," Hull, 581 So.2d at 1207, we did not render judgment in favor of the appellant. Instead, this Court reversed and remanded the cause "for further proceedings not inconsistent with" our opinion. Id. Our disposition of the first appeal was in conformance with Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). In that case, the United States Supreme Court held that "the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction." 488 U.S. at 40, 109 S.Ct. at 290. See also Fortier v. State, 564 So.2d 1041, 1042-43 (Ala.Cr.App.), cert. denied, 564 So.2d 1043 (Ala.1990).

Lockhart mandates that a reviewing court "must consider all of the evidence admitted by the trial court in determining whether retrial is permissible under the Double Jeopardy Clause." 488 U.S. at 41 The appellant's first conviction was not due to be rendered because the sum of all the evidence presented at the first trial, including the erroneously-admitted identification by Ryan, was sufficient to support the judgment of conviction. Therefore, under Lockhart and based on what this Court knew at the time of our disposition of the first appeal, the appellant's retrial was not barred by double jeopardy principles. This Court's disposition of the first appeal was based only on what was contained in the record of that appeal and was undertaken without any knowledge of or speculation about what other evidence the State might have to offer in the event of a retrial. Compare State v. Post, 109 N.M. 177, 181, 783 P.2d 487, 491 (1989) ("[w]e will not speculate as to what additional evidence or alternate theories the state could have brought forward had the trial court properly excluded the inadmissible evidence").

                109 S.Ct. at 291.   If the sum of all the evidence, including the erroneously admitted evidence, is sufficient to support the conviction, there is no double jeopardy bar to retrial.  Id. 2
                

THE 1991 TRIAL

At the pre-trial hearing on the appellant's motion to dismiss, the prosecutor ³ informed the trial court that he had no other evidence, aside from Ryan's testimony, that would connect the appellant to the offense. The prosecutor maintained, however, that Ryan's testimony should be admitted on retrial if it "cover[ed] all the points" missing from her testimony at the first trial, namely: Ryan's opportunity to view the get-away driver at the time of the crime; her degree of attention; and the level of certainty demonstrated by Ryan when she chose the appellant's picture from the photographic array. R. 24. These are, of course, the three Neil v. Biggers reliability indicators as to which the State utterly failed to offer evidence at the first trial. See Hull, 581 So.2d at 1205-06.

In response to the State's contention that it could remedy the deficiencies in Ryan's testimony, defense counsel argued that this Court's decision in Hull, which found a "very substantial likelihood of irreparable misidentification" of the appellant at the first trial, precluded the admission of that testimony in another trial. The appellant insisted that the State, having once failed to meet its burden of proving the reliability of Ryan's in-court identification of the appellant, was not entitled to another opportunity to meet that burden, or to repair, at the second trial, what this Court said was "irreparable" at the first trial. R. 33, 35.

The trial court interpreted our decision in Hull as a set of directions for avoiding evidentiary error on retrial. Over the strenuous objection of the appellant, the trial court ruled that the State could "attempt to provide the evidence that the Court [of Criminal Appeals] indicated would be necessary" on the issue of reliability. R. 28-29. In fairness to the trial court, it appears that at least part of its reason for reaching that conclusion was the fact that this Court did not reverse and render on the first appeal.

Before the second trial, Ms. Ryan testified at a hearing on the appellant's motion to suppress. At that hearing, the State specifically questioned her about her opportunity to view the driver of the get-away car at the time of the crime, her degree of attention, and her level of certainty in choosing the appellant's photograph out of the photographic line-up. Ryan's responses were positive and unambiguous. The State indeed "cover[ed] all the points" missing from her testimony at the first Not surprisingly, the trial court concluded that Ryan's testimony at the suppression hearing did not suffer from the same infirmities as her testimony at the first trial. The court ruled that her identification satisfied the Neil v. Biggers criteria for admissibility, and he denied the motion to suppress.

                trial.  In fact, the assistant district attorney admitted that prior to putting Ryan on the witness stand at the suppression hearing, he had reviewed with her our opinion in Hull in order to "expla[in] to her why she was back here."   R. 65, 74
                

At trial, the State again presented evidence that a lone gunman demanded and obtained drugs from the pharmacist at Stacey's Drugstore, then ran across the street to a white car driven by a woman. Ms. Ryan again identified the appellant as the driver of the get-away car. The appellant was again convicted.

THE INSTANT APPEAL

In this appeal from her 1991 conviction, the issue presented is whether, on retrial, the State was precluded from relitigating the issue of the reliability of Ms. Ryan's in-court identification of the appellant where the appellant's original conviction had been reversed because the State had not proven an independent basis of reliability for that identification, it being undisputed that the in-court identification followed an unduly suggestive pre-trial photographic lineup. We hold that under these circumstances, the State should not have been permitted to...