Hull v. State

• Decision Date: 28 December 1990
• Citation: 581 So.2d 1202
• Parties: Carol Lacey HULL v. STATE. CR 89-66.
• Court: Alabama Court of Criminal Appeals

Page 1202

581 So.2d 1202

Carol Lacey HULL v. STATE.

CR 89-66.

Court of Criminal Appeals of Alabama.

Dec. 28, 1990.

Rehearing Denied March 1, 1991.

Certiorari Denied June 21, 1991

Alabama Supreme Court 1900951.

Thomas O. Bear of Bear & Cater, Foley, for appellant.

Don Siegelman, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Carol Lacey Hull was convicted of first degree robbery and was sentenced as a habitual offender to life imprisonment without possibility of parole. On appeal, she contends that the in-court identification by an eyewitness 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.

FACTS

Shortly before 2:00 p.m. on Sunday, February 1, 1987, a lone male entered Stacey's Drugstore in Bay Minette and robbed the pharmacist at gunpoint of various drugs. The robber left the drugstore, locking the door from the outside with keys he had taken from the pharmacist, then crossed the street to a bank parking lot, where a female driving a white automobile was waiting. Once the robber entered the vehicle, the white car was driven away from the scene. The only evidence connecting the defendant with this crime is the testimony of Becky Ryan, who identified the defendant as the driver of the get-away car.

Ryan testified that on the afternoon of the robbery she was driving around the courthouse square in Bay Minette when she met a white automobile proceeding the wrong way on the one-way street. Ryan, who had her two small children with her, stopped her car and waited while the driver of the white vehicle made a U-turn in front of her. In making this U-turn, the white car came within approximately two feet of the front of Ryan's vehicle. When asked if she "g[o]t a good look or a look at [the driver's] face," Ryan answered affirmatively. After the driver of the white car made a U-turn, she parked in the drive-through lane of a bank across the street from the drugstore.

Ryan was proceeding slowly down the courthouse square when she observed a man with a brown paper bag under his arm exit the drugstore and cross the street. When the man reached the bank, he began to run. He ran to the white car and jumped in, and the car pulled off before he had closed the door. Ryan testified that she "knew something was up," so she followed the white car in an attempt to obtain its complete tag number. The driver of the white car eventually eluded her by driving through a stop light, and Ryan then went to the police station, where she reported what she had seen.

The officer in charge of the robbery investigation, Kenneth Hall, confirmed at the suppression hearing that Ryan had given a "multi-page, detailed statement" shortly after the robbery. However, Officer Hall related Ryan's description of the driver of the white car only as "a white female, blond headed." Also at the suppression hearing, Officer Hall testified that Ryan was unable to provide the entire tag number of the white vehicle and that she was hypnotized shortly after the robbery in an effort to obtain a complete tag number. While under hypnosis, Ryan described the driver of the white car as a "plain white female, blond hair, no make-up ... around thirty-five to forty years old or maybe older and approximately a hundred and thirty to a hundred and forty pounds." She also stated that the driver was wearing a "button-down blouse" and gave the color of this blouse. Earlier in his testimony, Officer Hall had indicated that Ryan's description of the driver while under hypnosis was the same as the description that she had given immediately after the robbery. Officer Hall also testified that Ryan viewed a line-up approximately two weeks after the robbery and did not identify anyone. The defendant was not a participant in this line-up.

Almost a year after the robbery, Officer Hall received from the Montgomery Police Department information which implicated the defendant in the Stacey's Drugstore robbery. He prepared a photographic spread composed of four color photographs and one black and white photograph, all of which were frontal views of the subjects. ¹ The black and white photograph was a Some 51 weeks after the robbery, Officer Hall assisted Mobile police officers in arresting William Holland, the alleged gunman. The arrest occurred at Holland's residence and was covered by a local television station. Shortly before the officers effectuated the arrest, the defendant was observed leaving Holland's residence in the company of a third person. She and this third person were apprehended approximately two blocks from Holland's residence. A white car fitting the description of the get-away car used in the instant robbery was found at Holland's residence, and it was registered in Holland's name.

photograph of the defendant. Hall testified that he showed these photographs to Ryan, who identified the defendant as the driver of the white car. This spread contained the only photographs that Hall showed to Ryan and, as far as he was aware, these photographs were the only photographs that Ryan had been shown.

Officer Hall testified at the suppression hearing that, several days after the arrest, he was in a flower shop operated by Ryan's mother-in-law, who related to him that Ryan had watched the television coverage of the arrest of Holland and the defendant and "had I.D.'d the woman from the T.V. as being the subject from the car." He further testified at trial that "the photo spread and the arrest was near about imminent, one after the other. It was approximately fifty-one weeks later." It appears that the photographic identification by Ryan occurred before the televised arrest.

Ryan's testimony as to the pre-trial identification process differed profoundly from Officer Hall's. She stated that she was shown between eight and ten photographic spreads by three different officers. According to Ryan, she was first shown a single photograph approximately a week after the robbery, and definitely ruled out the subject of this photograph as the driver of the white car. She stated that a week and a half to two weeks after the robbery, Officer Hall showed her a spread of black and white photographs from which she identified the defendant's photograph. These photographs were frontal views of the subjects. Shortly thereafter, she was shown a spread of profile views and she again identified a picture of the defendant. Ryan was then permitted to make an in-court identification of the defendant as the driver of the white car. On cross-examination, Ryan stated that she was not at any time shown a spread consisting of "one colored [photograph] and four black and whites or anything like that."

DISCUSSION

"[W]hether eyewitness identification evidence which ensues from a pre-trial identification procedure is constitutionally infirm requires a two-step inquiry. First, it must be determined whether the pre-trial identification procedures were unduly suggestive.... If so, then the suggestiveness of the identification procedures must be balanced against factors indicating that the in-court identification was independently reliable." Dickerson v. Fogg, 692 F.2d 238, 244 (2d Cir.1982). As the trial judge in this case recognized, the photographic spread containing a black and white photograph of the defendant and color photographs of four other subjects was "impermissibly suggestive." O'Brien v. Wainwright, 738 F.2d 1139, 1140-41 (11th Cir.1984), cert. denied, 469 U.S. 1162, 105 S.Ct. 918, 83 L.Ed.2d 931 (1985) (photographic line-up composed of a color photograph of the defendant and black and white photographs of five other subjects held "irreparably suggestive"); Passman v. Blackburn, 652 F.2d 559, 570 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982) (photographic line-up composed of a color photograph of the defendant and black and white photographs of eleven other subjects held "impermissibly suggestive"). See also United States v. Ayendes, 541 F.2d 601, 605 (6th Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 789, 50 L.Ed.2d 779 (1977) ("It is clear that the procedure of using a display composed of three typical black and white mug shots, a single color picture of each of the defendants with no police information similar to that on the mug shots and a color group photo in which both of the defendants appeared was suggestive"); Styers v. Smith 659 F.2d 293, 297 (2nd Cir.1981) ("The dramatic difference between the color shots and the black and white mug shots, combined with the officer's implication that [the witness] was expected to choose a couple of photos, was highly suggestive").

Having found that the pre-trial identification procedure was impermissibly suggestive, we must now determine whether Ryan's in-court identification of the defendant was independently reliable. In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972) the United States Supreme Court set out certain factors to be considered in evaluating the reliability of an identification. These factors, as reaffirmed in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." These factors " 'must be weighed against the effect of the suggestive procedure to determine whether the identification is so unreliable as to create a substantial likelihood of misidentification.' " United States v. Tyler, 714 F.2d 664, 667 (6th Cir.1983) (quoting Summitt v. Bordenkircher, 608 F.2d 247, 251 (6th Cir.1979). Each case must be decided upon its own facts, O'Brien v. Wainwright, 738 F.2d at...