Jackson v. State, 4 Div. 968

Decision Date18 May 1982
Docket Number4 Div. 968
PartiesRay Charles JACKSON v. STATE.
CourtAlabama Court of Criminal Appeals

C. Lawson Little, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Billington M. Garrett, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Ray Charles Jackson was indicted by the Houston County Grand Jury for the August 15, 1981 rape of prosecutrix in violation of Ala.Code § 13A-6-61 (Amended 1977). Trial was had with the jury finding him guilty as charged. Subsequently, the trial court fixed his punishment at life imprisonment. From that conviction he now appeals in forma pauperis.

Appellant raises no issue on appeal as to the sufficiency of the state's evidence. Nevertheless, a review of the record thoroughly convinces us of appellant's guilt. Thus, only a short narration of the facts is necessary.

Sometime between 9:15 p.m. and 9:30 p.m. on August 15, 1981, the prosecutrix, who was babysitting Chad and Wesley Bell at their home in Ashford, heard a knock on the front door. She answered it and was immediately assaulted by appellant who was holding a pocket knife. Appellant entered the home and ordered the prosecutrix and the children to lie on the floor. Shortly thereafter, he escorted the prosecutrix to the bathroom and afterwards a bedroom. In both rooms, the prosecutrix was forced to perform sex acts with appellant. Throughout the one to one and one-half hour ordeal, the prosecutrix pled not to be hurt. Subsequently, appellant left only to be apprehended a few hours later at a home about one-quarter of a mile away from the Bell residence.

I

Contrary to appellant's contention, his in-court identification by the prosecutrix was not tainted by an impermissibly suggestive four man show-up conducted about one to one and one-half hours after the incident.

At appellant's hearing on his pre-trial motion to suppress, the prosecutrix testified that on the night of the attack, there was a lamp and television on in the living room of the Bell residence. She stated that the lighting in the living room and one of the bedrooms was sufficient for her to clearly view the assailant. She stated that his face was very close to hers for some time and it felt unshaven. She described him as a black male, about six feet tall, of medium build, wearing blue jeans and a vest without a shirt. The prosecutrix testified that her assailant remained in the house between one to one and one-half hours.

Subsequent thereto, the prosecutrix was asked to view four black males brought to the Bell residence. Present with her were her parents and Houston County Deputy Sheriff Leon Baxter. She testified that no one stated or suggested that her assailant was one of the men. An outside light was on and as the prosecutrix viewed each individual an additional light was shown on him. The prosecutrix viewed each individual separately. They were all of the same race, were of similar build and height, and had similar hair styles. One individual, appellant, could not be seen clearly by the prosecutrix as he would not turn his face directly toward her, distorted his facial features, held his head down and arms up to shield his face, limped as he walked, and would not maintain an erect posture. He was wearing shorts rather than blue jeans when the prosecutrix viewed him. Consequently, she requested to view him again and asked that he wear a vest the police had procured from the bedroom in which appellant had earlier been found. After the second viewing, the prosecutrix positively identified appellant as her assailant. He was then arrested. The prosecutrix testified that she based her identification not on the vest but rather on what she had observed during the attack.

Further testimony elicited at the hearing revealed that the four men voluntarily assented to accompany the police officers to the Bell residence and participate in the show-up after they had been informed of the reason for the request.

The appellant testified that he voluntarily participated in the show-up. He stated that in his statement given to the police, he had admitted that the vest found in the bedroom and worn at the show-up belonged to him. He stated that he was without the services of legal counsel at the time of the show-up.

Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.1980). In assessing the reliability of the identification, the effect of suggestive procedures in the pre-trial confrontation and identification must be weighed against the indicators of the ability of the witness to make an accurate identification. The factors in assessing the witness's ability to accurately identify include the opportunity of the witness to view the criminal at the time of the crime, the witness's 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. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, supra. These factors must be weighed in their totality and then balanced against the possible suggestiveness of the pre-trial identification procedures to determine the admissibility of the identification. Manson v. Brathwaite, supra. The totality of the circumstances must be examined. Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The fact that appellant was viewed a second time is a consequence of his lack of cooperation and attempts to alter his appearance in the first instance. It is conceivable that had the prosecutrix been able to clearly view appellant the first time, a second showing would have been unnecessary. No error can be predicated on such. Peavy v. State, 368 So.2d 43 (Ala.Cr.App.1979). In addition, the fact that appellant wore his vest during the second showing did not tend to unduly suggest him as the culprit. He was merely wearing the same or similar clothing he had on at the time of the crime. Brazell v. State, 369 So.2d 25 (Ala.Cr.App. 1978), cert. denied, 369 So.2d 31 (Ala.1979); Griffin v. State, 356 So.2d 723 (Ala.Cr.App.), cert. denied, 356 So.2d 728 (Ala.1978); Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, 339 So.2d 601 (Ala.1976); Fletcher v. State, 337 So.2d 58 (Ala.Cr.App.1976).

Moreover, when an in-court identification is shown to have a basis independent of any pre-trial identification or confrontation, it is properly admitted into evidence. Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981); Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981); McLoyd v. State, 373 So.2d 1175 (Ala.Cr.App.), cert. denied, 373 So.2d 1185 (Ala.1979); and cases cited therein.

After a complete review of the record, we find nothing at the pre-trial confrontation to have been impermissibly suggestive so as to create a substantial risk of misidentification and thus taint the in-court identification of appellant by the prosecutrix. Further, we find in the record an independent basis for the in-court identification. Consequently, the trial court properly denied appellant's motion to suppress. Thomas, supra; McLoyd, supra; Donahoo v. State, 371 So.2d 68 (Ala.Cr.App.), cert. denied, 371 So.2d 74 (Ala.1979); Speigner v. State, 369 So.2d 39 (Ala.Cr.App.), cert. denied, 369 So.2d 46 (Ala.1979).

III

Appellant also challenges the identification made by eight year old Chad Bell, one of the boys the prosecutrix was babysitting on the night of the attack.

Initially, we find no abuse of the trial court's discretion in finding Chad competent to testify. Noble v. State, 253 Ala. 519, 45 So.2d 857 (1950); Puckett v. State, 213 Ala. 383, 105 So. 211 (1925); Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921); Harville v. State, 386 So.2d 776 (Ala.Cr.App.1980); Roberson v. State, 384 So.2d 864 (Ala.Cr.App.), cert. denied, 384 So.2d 868 (Ala.1980); Pennington v. State, 57 Ala.App. 655, 331 So.2d 411 (1976); Hacker v. State, 31 Ala.App. 249, 15 So.2d 336, cert. denied, 244 Ala. 649, 15 So.2d 339 (1943); Ala.Code § 12-21-165 (1975).

At appellant's in camera hearing held during the course of the trial, Chad testified that, during the early morning hours of August 16, 1981, he was asked to come outside of his house and look at someone to determine whether that person was the individual who had been at his house earlier that evening. Chad stated that no one suggested or told him that the person he was about to view was in fact the prosecutrix' assailant. He stated one black male escorted by some police officers was exhibited. The individual was handcuffed and wearing the same vest Chad had earlier seen on the man who had been in the house. Chad ran to his mother and positively identified appellant as the assailant stating, "That's him." Chad stated that he did not know why appellant was handcuffed but thought he must have been in trouble. He testified that he did not identify appellant because of the vest or handcuffs but rather because he recognized his face.

Subsequent thereto, Chad had a second opportunity to view appellant at the county jail. He was accompanied by his mother, the prosecutrix and her parents. Appellant was the only person in the cell when Chad saw him. He did not remember whether anyone stated that the occupant of...

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