Jackson v. State
| Decision Date | 01 March 1977 |
| Docket Number | 6 Div. 321 |
| Parties | Joseph Carl JACKSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Lewis Fred Pickard, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
Robbery; sentence: ten years.
The appellant was indicted for the robbery of Michael Crumpton in the amount of $793.00. The trial jury found the appellant guilty as charged and fixed punishment at ten years imprisonment. The trial Court then entered judgment, setting sentence in accordance with the verdict. Notice of a working appeal was immediately given.
The evidence presented by the State tended to show that in late November of 1975, the appellant and two other black males entered A. A. Bond's Furniture Store in Birmingham, Alabama, a few minutes before closing. Once inside, the appellant pulled a pistol from under his shirt and threatened the store manager, Michael Crumpton. The appellant then forced Judy Crumpton, Michael's wife, to open the cash drawer and the safe, which was not locked. While the appellant and the others took the money and left, they made Mr. and Mrs. Crumpton lay on the floor with a coat over their heads. The complete robbery took about five minutes.
Immediately after the robbery, the Crumptons gave a description of the robbers to the police. Thereafter they made separate, positive identifications of the appellant from both a photographic display and a line-up. Following his arrest, the appellant made a signed statement to the Birmingham police in which he admitted participation in the robbery, although only as a "lookout".
Although the admissibility and validity of both the identification and confession were considered in a pretrial hearing, the record contains no motion to suppress, no motion to exclude, no motion to strike, or objection to the in-court identification or the pretrial identification procedures. A verbal motion to exclude was interposed to the admissibility of the confession at the close of the preliminary hearing.
The first alleged error complained of by the appellant is that of the trial court when it did not exclude the in-court identification of the appellant by Mr. and Mrs. Crumpton. The appellant asserts that the pretrial line-up and picture showing were so impermissibly suggestive as to have tainted the in-court identification of the accused.
At the pretrial hearing both of the Crumptons testified that they were separately given a stack of ten to fifteen color pictures by a police officer about a week or a week and a half after the robbery. The photographs were all of black males of similar height and weight, although the appellant was the only person depicted with a scar on his left cheek. No suggestive comment was made by the police officer before or during the viewing of the photographs to indicate that any particular individual in the group was one of the robbers. When the Crumptons viewed the photographs they were looking for any of the three robbers. Mrs. Crumpton did testify that the police sergeant told her before she saw the photographs that, based on her description, he "had some idea" who robbed her "or had someone in mind". The Crumptons had described the robbers to the police on the day of the robbery. The sergeant simply indicated that he had a suspect in the group of pictures. Both Mr. and Mrs. Crumpton positively identified the appellant. They asked and were told that the man they had identified was Joseph Carl Jackson, the appellant.
Mr. Crumpton testified that he observed the appellant at close range during the course of the robbery for at least two minutes. Mrs. Crumpton stated that she viewed the appellant at close range and observed him for five minutes during the robbery.
Before being shown the pictures, the Crumptons discussed the description of the robbers between themselves and their descriptions were "approximately the same".
Mr. Crumpton, after identifying the appellant, told the police that if they arrested someone who might possibly be a suspect, he would like to see them in a line-up. About two weeks later the Crumptons did view a line-up. Mr. Crumpton testified that when he was called to view the line-up, he knew an arrest had probably been made but had no idea which one of the three robbers had been arrested. Again, both Mr. and Mrs. Crumpton separately viewed a group of individuals with similar physical characteristics. Both, without hesitation, positively identified the appellant as one of the robbers. No one suggested that anyone in the line-up was a suspect. After Mrs. Crumpton identified the appellant as one of the robbers, a police officer said, "Well, that is the man we are looking for".
On the day of the trial, Mr. Crumpton saw the appellant in handcuffs in the courtroom.
The appellant submits that the totality of the circumstances dictates that both the pretrial photographic display and the line-up were impermissively suggestive and that these defects tainted the in-court identification of the appellant. The appellant argues seven circumstances which tainted the in-court identification: (1) Before Mrs. Crumpton viewed the photographic display, she was told by a police officer that he had a suspect in the group of pictures she was about to view and that he had some idea of who had robbed her according to the descriptions she had given the police; (2) the appellant was the only one in the photograph and the line-up with a scar on his left cheek; (3) the appellant was identified to the Crumptons by name after they had selected his picture; (4) the police advised Mr. Crumpton that if they arrested anybody that could possibly be a suspect in the case, he and his wife would probably be called for a line-up; (5) no one else in the photographic spread or in the line-up fit the description of the appellant; (6) after identifying the appellant in the line-up, a police officer said to Mrs. Crumpton, "Well, that is the man we are looking for"; and (7) prior to the in-court identification, Mr. Crumpton saw the appellant in handcuffs in the courtroom.
An in-court identification is inadmissible if it is so tainted by previous, impermissibly suggestive photographic or line-up identification that the origin or source of the in-court identification was not independent of the line-up. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Fletcher v. State, Ala.Cr.App., 337 So.2d 58, and cases cited therein at 337 So.2d 60. In determining whether the in-court identification is admissible the "totality of the circumstances" must be considered to determine first, whether the police procedures used in obtaining the identification were impermissively suggestive and then, whether, being so they created "a substantial risk of misidentification". 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; United States v. Kimbrough (CA 5), 481 F.2d 421, cert. denied, 414 U.S. 1114, 94 S.Ct. 845, 38 L.Ed.2d 741 (1973); United States v. Henderson, 489 F.2d 802 (5th Cir. 1973); Childers v. State, Ala.Cr.App., 339 So.2d 597.
Here the police officer merely told one of the identifying witnesses that Based on the description she had previously given the police, he had a suspect in the group of photographs he handed her to view. He did not indicate in any manner which individual he suspected. We find that the police officer was merely stating the obvious. The very purpose of a photographic display is to assist in the apprehension of offenders. Simmons, supra. It would be a useless law enforcement procedure if a police officer showed a victim or a witness a spread of photographs where, based on a description previously furnished him, he suspected none of the individuals depicted. Despite some of the appellant's contentions, the testimony shows that all of the photographs were fairly representative of the appellant except for the scar. The statement of the police officer was not impermissibly suggestive. 1
The fact that the appellant was the only person depicted with a scar does not impress this court. There was testimony that the scar was only faintly visible on the photograph. Also, it appears that the scar was not the sole basis on which the appellant was identified. Moreover, as a practical factor in matters such as this where the accused has a distinctive physical characteristic, it would often be impossible for the police to obtain a perfectly balanced photo spread.
After the Crumptons identified the appellant as one of the robbers, they asked for and were given his name. Under the circumstances of this particular case, this point is insignificant. From the record it does not appear that the appellant's name had anything to do with any identification of him by...
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