Johnson v. State, 6 Div. 285

• Decision Date: 09 June 1987
• Docket Number: 6 Div. 285
• Citation: 526 So.2d 34
• Parties: Mathew Charles JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 34

526 So.2d 34

Mathew Charles JOHNSON v. STATE.

6 Div. 285.

Court of Criminal Appeals of Alabama.

June 9, 1987.

Appeal Following Remand March 22, 1988.

Mathew Charles Johnson, pro se.

Gregory A. Kennemer, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Mathew Charles Johnson appeals from the denial of his petition for writ of error coram nobis by the circuit court without conducting an evidentiary thereon.

The appellant avers that he was indicted by the Grand Jury of Jefferson County in October, 1980 for the offense of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975 as amended. Appellant further avers that he entered a not guilty plea, a jury trial was held and the appellant was sentenced to life imprisonment without parole. The appellant avers that an attempted appeal was dismissed because of procedural errors. The appellant further avers that he is innocent of the charge and has a valid defense.

The appellant avers that the trial court's instructions to the jury were erroneous and constitutionally defective, that he was entitled to have a full review on the appeal of this conviction and that his counsel failed to timely obtain and perfect an appeal of his conviction to the Court of Criminal Appeals of Alabama. Appellant further avers that he was, thereby, denied the effective assistance of counsel within the meaning of the U.S. Constitution. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

Because the circuit court dismissed and denied this petition without conducting an evidentiary hearing, this cause is remanded to the circuit court with instructions that a full evidentiary hearing be conducted on the merits of the appellant's allegations, after the appointment of counsel to assist the appellant. See Rule 20, Alabama Temporary Rules of Criminal Procedure, specifically Rule 20.2(c) effective April 1, 1987.

For the reasons shown, this cause is remanded with instructions that an evidentiary hearing be conducted.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

Appeal Following Remand

TYSON, Judge.

Matthew Charles Johnson was indicted for the offense of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment" and the trial judge sentenced the appellant to life imprisonment without parole, as a Habitual Felony Offender.

At 12:03 a.m., on July 13, 1980, three black males entered Mrs. Winner's Fried Chicken located at 11 Graymont Avenue in Birmingham, Alabama. One of the men went to the drive-through window cash register and pointed a gun at Anthony Soles. Soles opened the cash register and was ordered to the floor. This gunman removed the money from the drive-through cash register.

One of the other men went to the front register and pointed a gun at Venus Robinson who was working this register. Robinson identified this gunman as the appellant. At some point, Robinson threw up her hands and the appellant said, "Put your hands down, put your hands down." (R. 133). The appellant told Robinson to open the cash register and give him the money. The third male, who also had a gun, then took the money from the register and put it in a bag. After taking the money from the register, the third gunman said that it wasn't enough money. Elizabeth Null, who was also working at Mrs. Winner's that night, told the gunmen that there was more money in the drop box and that Soles had the keys to the drop box.

Soles threw one of the gunmen the keys to the drop box. This gunman then opened both drop boxes and took the money out of these. The three men then left. Approximately $700.00 was taken from Mrs. Winner's Fried Chicken by the three gunmen that night.

I

Timely notice of appeal was filed in this case in the trial court. However, the appellant's attorney failed to file a brief in this case on appeal and the appeal was dismissed by this court. The appellant then filed a petition for writ of error coram nobis in the Jefferson County Circuit Court. The petition alleged "ineffective assistance of counsel" due to the appellant's attorney's failure to file a brief in this case. The petition was denied by the trial court. On appeal, this court remanded this case to the trial court for an evidentiary hearing on this issue.

At the evidentiary hearing, the trial court determined that the appellant was not at fault in the dismissal of his appeal and that he was "prejudiced by the dismissal." The trial judge recommended the appellant be granted an "out-of-time appeal." Upon the trial judge's recommendation, this court granted this appellant an out-of-time appeal. This appeal is now properly before this court. See Longmire v. State, 443 So.2d 1263 (Ala.Crim.App.1981), rev'd, 443 So.2d 1265 (Ala.1982), on remand, 443 So.2d 1270 (Ala.Crim.App.1983); Brown v. State, 460 So.2d 263 (Ala.Crim.App.), cert. denied, 460 So.2d 263 (Ala.1984); Jones v. State, 495 So.2d 722 (Ala.Crim.App.1986).

II

The appellant contends that Venus Robinson's identification of him should have been suppressed because the line-up identification procedure was unduly suggestive. The following facts were adduced at the suppression hearing on this matter.

Howard Miller, who investigated this robbery for the Birmingham Police Department, stated that Anthony Soles and Elizabeth Null viewed a line-up in connection with this case on July 28, 1980. Miller testified that neither Soles nor Null picked anyone out of this line-up. On July 29, 1980, another line-up was held and Soles, Null and Venus Robinson viewed this lineup. This line-up consisted of six black males, ranging in age from twenty to thirty-one years of age, in height from 5'8"' to 6'1"', and in weight from 128 to 187 pounds. Miller testified that the three witnesses viewed the line-up separately and were instructed not to discuss the line-up among themselves. Miller never suggested to any of the three whether or not anyone should be picked from the line-up at issue.

All three of the witnesses identified Willie Lidge from the line-up as the man who went to the drive-through window and register. Both Null and Robinson identified this appellant as the man who came to the front register. Miller stated that the witnesses were positive about their identifications.

Elizabeth Null testified that she picked Willie Lidge and the appellant out of the second line-up that she viewed. She further stated that she had also picked two people from the first line-up but was told they were the wrong people. After she picked out Lidge and the appellant from the second line-up, Null was told she had picked the right people. The trial judge agreed to suppress Null's identification of this appellant.

Venus Robinson testified that she picked Willie Lidge and the appellant from the only line-up that she viewed. Robinson testified that she immediately recognized the appellant as the man who came to her cash register. However, she asked Miller to have the men in the line-up say, "Put your hands down, put your hands down." She stated that, although she was positive about her initial identification of the appellant, she "wanted to make sure" because "you don't want to commit nobody to no crime or nothing like that until you put the voice and the face together." (R. 103).

After all six of the men repeated the words which the appellant said during the robbery, Robinson positively identified the appellant. She stated her identification was based on viewing the appellant on the night of the robbery. Robinson also testified that, after she made her identification, Miller told her she had picked out the right men.

The appellant specifically raises three issues concerning the line-up from which the appellant was identified by Robinson. First, he contends that his Fifth Amendment privilege against self-incrimination was violated when he was required to say the words uttered by one of the gunmen during the robbery.

There is a distinction between compulsion to utter statements of a testimonial nature, which violates the Fifth Amendment, and compulsion to utter words used by the perpetrator of a crime during the course of that crime. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Requiring a person to use his voice as an identifying physical characteristic, as was the case here, is not in violation of the U.S. Fifth Amendment privilege against self-incrimination. See Wade; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Cooley v. State, 439 So.2d 193 (Ala.Crim.App.1983); Jones v. State, 431 So.2d 1367 (Ala.Crim.App.1983); Donahoo v. State, 371 So.2d 68 (Ala.Crim.App.), cert. denied, 371 So.2d 74 (Ala.1979).

Secondly, the appellant asserts that he should have been allowed access to counsel when he requested an attorney during the line-up. A defendant does not have a constitutional right to have counsel present at a pre-indictment line-up. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Franklin v. State, 424 So.2d 1353 (Ala.Crim.App.1982), cert. denied, 424 So.2d 1353 (Ala.1983); Tankersley v. State, 448 So.2d 486 (Ala.Crim.App.1984); Fisher v. State, 439 So.2d 176 (Ala.Crim.App.), cert. denied, 439 So.2d 176 (Ala.1983).

Thirdly, the appellant argues, citing Swicegood v. Alabama, 577 F.2d 1322 (5th Cir.1978), that Miller's remark to Robinson that she had picked the right men from the line-up, tainted her in-court identification of him. We must note that, at the suppression hearing, Officer Miller denied telling Robinson or Null that they had picked the "right men" at the line-up.

In Swicegood, the U.S. Fifth Circuit found that it was "very close" as to whether the line-up procedures employed in this case were impermissibly suggestive. The...