Jennings v. State

• Decision Date: 28 April 1987
• Docket Number: 6 Div. 197
• Citation: 513 So.2d 91
• Parties: Clarence L. JENNINGS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 91

513 So.2d 91

Clarence L. JENNINGS v. STATE.

6 Div. 197.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied May 26, 1987.

Certiorari Denied Aug. 28, 1987

Alabama Supreme Court 86-1207.

David Gespass of Gespass & Johnson, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Beatrice Oliver, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Clarence Jennings, was found guilty of robbery in the first degree and sentenced to 25 years' imprisonment.

The victim, drove into the parking lot of the Short Stop Convenience Store after spilling a drink in her car. She observed two men standing beside an ice machine located in front of the convenience store. A moment later the same two men were standing in front of her car, looking in at her. The two men then walked past her car. She then finished cleaning up and, as she prepared to drive away, she felt a gun pressed to her temple. She looked up and saw one of the two men standing at the driver's window pointing a gun at her. The other man, whom she identified as the appellant, was standing at the passenger's side. The man with the gun told the victim not to look at him and to give him all of her money. The appellant unsuccessfully attempted to open the passenger door of the car and she then observed him walk to the front of the automobile. The man with the gun told her to hand him her purse. Her foot slipped off the brake pedal as she reached down to get her purse and her car rolled forward. The man with the gun screamed that he had told her "not to leave." She then lay over into the passenger seat, whereupon the man fired the pistol at her, striking her in the leg. The two men then fled from the parking lot.

I

The appellant argues that his constitutional rights were violated in the hearing on his motion to suppress identification. Apparently, the appellant is arguing that the victim's photo-identification of the appellant was unreliable and the result of suggestive methods used by the police. The victim and Sergeant Mitchell testified during the motion to suppress. The victim testified to the events of the offense and, on cross-examination, gave a description of both the man on the driver's side and the man on the passenger's side of her automobile. She described the man on the passenger's side as taller than the other man and "not as stocky built." She further testified he had a "short type afro" which was more flat on top. She and Sergeant Mitchell testified that she went to the jail in order to view a lineup in which the appellant was not present. She did not identify anyone at that time. The defense counsel asked her if she was "under the impression that there was one or more suspects in the lineup"; she responded "no, I didn't know. He didn't explain anything to me about the lineup." Subsequently, Sergeant Mitchell brought the victim "a stack of pictures" and asked her to take a look at them. She picked from those pictures "the one that [she] knew was one of the perpetrators." Sergeant Mitchell testified that neither he nor anyone in his presence or to his knowledge made any suggestion to the victim as to who she should pick out or which picture to identify. The picture which she selected was a photograph of the appellant.

The appellant argues that the trial court erred in failing to allow the introduction of a report which Sergeant Mitchell was using to refresh his memory and which apparently indicated that one of the men had a missing tooth. The State never established that Sergeant Mitchell made out the report, although there was testimony that Sergeant Mitchell did not make any notes during his initial interview with the victim, rather, his first notes were made after a conversation he had with her while she was in the hospital. The State objected to the report as being hearsay and irrelevant. The trial court sustained the State's objection. The defense counsel, however, was allowed to ask Sergeant Mitchell whether he remembered which of the suspects it was that the victim had said was missing a tooth. Sergeant Mitchell indicated in response that he did not remember. Further, during the testimony of the victim, she stated that she never indicated that either man was missing any teeth and that she never observed their teeth.

While the quality of the victim's description of her assailant "[does] warrant cause for concern," this factor goes to the weight and credibility of the victim's identification rather than its admissibility. Johnson v. State, 453 So.2d 1323, 1328 (Ala.Cr.App.1984). " 'The question of whether the victim's identification was positive or not goes to the weight and credibility, and was a question for the jury.' Williams v. State, 348 So.2d 1101, 1104 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1105 (Ala.1977). See also Jones v. State, 415 So.2d 1233, 1236 (Ala.Cr.App.1982)." Johnson v. State, supra, at 1328.

The victim's identification of the appellant was reliable when considered under "the totality of the circumstances and the factors outlined in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)." Ford v. State, 426 So.2d 512, 513 (Ala.Cr.App.1982).

"The factors to be considered when [a] question is presented with reference to ... the validity of the identification are set out in [Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.1980) ]. These factors involve, in short, the opportunity of the victim to view the assailant at the time of the crime, the victim's degree of attention given to the defendant at the time, the accuracy of the victim's prior description, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the confrontation and the crime. A review of the evidence in this case, and applying these factors, leads us to the conclusion that there is nothing present in this case which would be sufficient to disallow the evidence of the identification of the accused in this case to go to the jury."

Minor v. State, 437 So.2d 651, 654 (Ala.Cr.App.1983). See also Jones v. State, 431 So.2d 1367, 1370-71 (Ala.Cr.App.1983).

Applying these factors to the facts of this case, we conclude that the victim's identification was totally reliable.

"The test for determining the reliability of identification testimony following a pretrial identification procedure is whether the procedure was 'unnecessarily suggestive and conducive to irreparable mistaken identification.' " Phillips v. State, 409 So.2d 918, 919 (Ala.Cr.App.1981), quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). The appellant argues that the trial court erred by not permitting him to ask whether the victim thought there were any suspects in the lineup which she viewed. However, "the mere fact that suspects are included within the lineup, and that witnesses know or assume this to be the case is an inescapable aspect of lineup identification procedure." United States v. Person, 478 F.2d 659, 661 (D.C.Cir.1973). See also Phillips v. State, supra, at 919; McGee v. Estelle, 632 F.2d 476 (5th Cir.1980). "In a series of cases ..., this court has held that the fact 'that a person is actually told the suspect's photograph is among other pictures, although generally inadvisable, does not contaminate the identification proceeding.' " Ramsey v. State, 441 So.2d 1065, 1066 (Ala.Cr.App.1983). Moreover, "identification evidence derived from an unnecessarily suggestive source need not be excluded if the totality of the circumstances indicates its reliability." Johnson v. State, 453 So.2d 1323, 1327 (Ala.Cr.App.1984). However, we find no proof of any suggestive methods used by the police in obtaining the victim's identification of the appellant.

II

The appellant argues that the trial court improperly limited his voir dire during jury selection. Specifically, the appellant contends that the trial court erred in sustaining the State's objection to the defense counsel's question, "is there anybody that would disagree with this proposition, that eyewitness identification by strangers based upon fleeting observations made in stressful circumstances are frequently inaccurate?" The law in Alabama is well settled that,

"in the process of selecting the jury from the venire afforded, each party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of prospective jurors."

Griffin v. State, 383 So.2d 873, 876 (Ala.Cr.App.1980), cert. denied, Griffin v. State, 383 So.2d 880 (Ala.1980). The "controlling statute" regarding the right of either party to examine jurors as to their qualifications, interest, or bias was Title 30, Section 52, Alabama Code (1940), and the law of this statute has been carried forward, although not specifically included in Code of Alabama (1975) "The legal standard to be applied as regards voir dire questioning of the venire is the sound discretion of the court. The court determines how far counsel may go in asking questions of the jury on voir dire. The nature, the variety, and the extent of the questions are left to the trial court."

Dawkins v. State, 455 So.2d 220, 222 (Ala.Cr.App.1984).

Reversal can only be predicated upon an abuse of that discretion. Edwards v. State, 452 So.2d 487, 494 (Ala.Cr.App.1982), reversed on other grounds, 452 So.2d 503 (Ala.1983); Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981). The appellant argues that the trial court abused its discretion and improperly limited the scope of his voir dire during jury selection because his main defense centered on the issue of the victim's identification of the appellant and the question he attempted to propound...