Jones v. State, 1 Div. 519

Citation450 So.2d 165
Decision Date02 August 1983
Docket Number1 Div. 519
PartiesArthur JONES v. STATE.
CourtAlabama Court of Criminal Appeals

W. Gregory Hughes, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Edward E. Carnes and Martha Gail Ingram, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Seventy-one-year-old William Hosea Waymon was a cab driver in Mobile. In August of 1981, his body was discovered near his cab with four bullet wounds in his head and neck area. The defendant was indicted for the capital offenses of murder during a robbery in the first degree, Alabama Code Section 13A-5-40(a)(2) (1975), and murder committed while the defendant is under a sentence of life imprisonment. Alabama Code Section 13A-5-40(a)(6) (1975). A jury found the defendant "guilty of the Capital Offense as charged in the indictment" at the guilt-finding phase of the trial. At the sentence-determining phase, the jury fixed the defendant's punishment at death by a vote of eleven for death and one for life imprisonment without parole. The trial judge then held the hearing mandated by Sections 13A-5-32 and -33, accepted the death penalty recommended by the jury, and sentenced the defendant to death.

The trial and sentencing proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981), following the decision of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Four issues are presented on appeal.

I

Testing the sufficiency of the evidence by the principles of Dolvin v. State, 391 So.2d 133 (Ala. 1979), and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), we find that the evidence, although circumstantial, was sufficient to permit the jury to exclude every reasonable hypothesis except that of guilty beyond a reasonable doubt, and was sufficient to sustain the verdict of guilt.

The State's evidence reveals that during the early morning of August 17, 1981, Mr. Waymon picked up his last fare at 12:41. A witness testified that the defendant stated that he wanted to go to Plateau and got into Mr. Waymon's cab at Mike's Cab Stand. The defendant was on parole from a sentence of life imprisonment for a robbery conviction from Clarke County.

The dispatcher tried to contact Waymon by radio even before he went "around the corner." She tried three or four additional times but never did receive any response although Waymon "always answered his radio."

Mobile Police Officer LeRoy Sieck found Waymon's body near his cab at 1:11 that morning, approximately 35 minutes after Waymon had left with the defendant. Waymon had died from four .22 caliber gunshots fired at close range. The body was found in Plateau, in north Mobile, approximately two and four-tenths miles from the cab stand. Only $35 was found in Waymon's shirt pocket although there was evidence that he usually carried a "roll of money" in his pants pocket and could have had as much as $254.81.

It was established that the defendant was residing in Plateau and that his residence was eight-tenths of a mile from the scene of the crime. Witnesses testified that the defendant owned a .22 caliber pistol.

During the month of August, the defendant was employed by Industrial Services and received $373 for that month. The defendant was employed by this company as a "four-fifty an hour laborer" from May 29, 1981, till September 17, 1981.

In August of 1981, the defendant was three months delinquent in his automobile payments. His account was at the "maximum delinquency" and was roughly in the amount of $420. On August 12, 1981, a field representative with General Motors Acceptance Corporation attempted to repossess the car but the defendant refused to release the car. The defendant stated that he "didn't have the money at that time but ... would try and borrow it and come out to G.M.A.C. and pay it ... the next day."

The State also showed that the defendant made the following expenditures: on August 18th, the day of the murder, the defendant made a $139 car payment; on September 2nd, the defendant paid $32.74 for an automobile license tag, $297 on his G.M.A.C. account, and $40 as a deposit to Alabama Power Company. The defendant changed his address between August 17th and September 2nd. On November 2nd, his automobile was repossessed because the defendant "never did catch up in his back payments."

Taking all the evidence and the manner in which the individual facts connect and mingle, United States v. Hinds, 662 F.2d 362, 367 (5th Cir.1981), and viewing it in the light most favorable to the prosecution, we find that the evidence excluded every reasonable hypothesis or explanation but that of guilt.

The defendant had the opportunity, the motive and the means to commit the offense.

II

There was no error in the trial court's refusal of the defendant's written request charge which stated:

"The Court charges the jury that the possibility of human error or mistake, and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must carefully consider these factors passing upon the credibility that you attach to the witness's testimony, and you must be satisfied beyond a reasonable doubt as to the accuracy of the witness's identification of the defendant."

In Brooks v. State, 380 So.2d 1012, 1014 (Ala.Cr.App.1980), we noted that a "requested identification instruction which deals realistically with the shortcomings and trouble spots of the identification process should be given where the principle has not been covered by the court's oral charge." In Smith v. State, 54 Ala.App. 248, 250, 307 So.2d 57 (1975), this Court recognized the above charge as a correct statement of law. However, we have held that there is no basis for such a charge where the witness was positive in the identification, Minnifield v. State, 392 So.2d 1288, 1291 (Ala.Cr.App.1981); Rowser v. State, 346 So.2d 533, 535 (Ala.Cr.App.), cert. denied, Ex parte Rowser, 346 So.2d 536 (Ala.1977), or harmless error because identity was never in question. Shields v. State, 397 So.2d 184, 187 (Ala.Cr.App.), cert. denied, Ex parte Shields, 397 So.2d 189 (Ala.1981).

A number of federal circuit courts have held that requested instructions dealing with the dangers of misidentification by an eyewitness are required where the identification is crucial to the prosecution. United States v. Dodge, 538 F.2d 770 (8th Cir.1976), cert. denied sub nom., Escamilla v. United States, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 527 (1977); United States v. Hodges, 515 F.2d 650 (7th Cir.1975); United States v. Holley, 502 F.2d 273 (4th Cir.1975); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972); People v. Hurley, 157 Cal.Rptr. 364, 369, n. 3, 95 Cal.App.3d 895 (1979) (J. Hopper dissenting).

In contrast, some state courts have held that this issue is more properly a concern for cross examination and argument of counsel, implying that such instructions invade the province of the jury, People v. White, 15 Ill.Dec. 815, 58 Ill.App.3d 226, 374 N.E.2d 250 (1978); State v. Jordan, 17 Wash.App. 542, 564 P.2d 340 (1977), although some courts have held that neither counsel's argument nor cross examination may substitute for proper instructions on mistaken identity. Hodges, 515 F.2d at 653. Still, other courts have held that identification instruction constitutes an improper comment on the evidence and either should never be given, Jordan, 564 P.2d at 341, or great care should be exercised before giving an instruction approved by a federal court because a federal judge may comment on the evidence. State v. Valencia, 118 Ariz. 136, 575 P.2d 335 (1977).

Between these extremes lies the view that the giving of identification instructions is a matter resting within the sound discretion of the trial court. United States v. Collins, 559 F.2d 561 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); State v. Higgins, 592 S.W.2d 151 (Mo.1979), app. dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980); State v. Guster, 66 Ohio St.2d 266, 20 Ohio Op.3d 249, 421 N.E.2d 157 (1981); see also People v. Whitmore, 86 Mich.App. 177, 272 N.W.2d 346 (1978), vacated on other grounds, 407 Mich. 890, 299 N.W.2d 720 (1979), on remand, 100 Mich.App. 214, 299 N.W.2d 721 (1980); Commonwealth v. Wilcox, 481 Pa.2d 284, 392 A.2d 1294 (1978).

This Court recognizes the dangers of eyewitness identification. United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967). Consequently, we are unwilling to hold that cross examination and argument will always supply a sufficient forum in which to cover the issue of identification without proper instructions from the trial judge. See Shields, supra; Brooks, supra. However, we are equally reluctant to hold that identification instructions must be given in every case involving eyewitness identification for, in some cases, the instruction is not needed and would serve only to confuse the jury. See Whitmore, supra; Cf. Shields, supra (identification instruction properly refused because "the identity of the appellant ... was never in question"); Minnifield, supra (identification instruction properly refused where eyewitness was positive in her identification); Rowser, supra (identification instruction properly refused where there was "not one iota, scintilla, suspicion, or shadow of evidence that the State's (only) witness was anything but positive in her identification of appellant as the robber").

We see no reason to give a charge involving the various principles of eyewitness identification any more weight or importance than any other charge requested by a defendant. Therefore, the governing principle as to whether the charge should be given is found in Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978):

"(O)ur decisions are to the effect that every accused is entitled to have...

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