Jones v. State

• Decision Date: 03 May 1983
• Docket Number: 6 Div. 521
• Citation: 431 So.2d 1367
• Parties: Joe Lee JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1367

431 So.2d 1367

Joe Lee JONES v. STATE.

6 Div. 521.

Court of Criminal Appeals of Alabama.

May 3, 1983.

William Reece, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and Bill North, Asst. Atty. Gen., for appellee.

SAM W. TAYLOR, Judge.

Joe Lee Jones was indicted for robbery in the first degree, in violation of § 13A-8-41, Code of Alabama 1975, and was found "guilty of Robbery in the First Degree as charged in the indictment" by the jury.

After a hearing by the trial judge, in accordance with the Habitual Offender Act, the appellant was sentenced to life imprisonment in the penitentiary without parole.

Kathy Kleckner testified that she and her husband own a flower and gift shop called Burton's Florist, located at 7212 First Avenue, North, in Birmingham, Alabama. On Sunday, March 23, 1980, the couple planned to open the shop from 1:00-5:00 p.m. At approximately 3:30 or 3:40 p.m., Mrs. Kleckner was at the shop along with her husband, her son and two customers, a woman and her daughter.

Sometime around 3:55 p.m., Mrs. Kleckner was behind the front counter of her shop talking to her two customers when a tall, slender black male with bushy hair and wearing dark pants, a green colored jacket and a red cap entered the shop. She identified the appellant as the man who entered her shop that day and said she was positive of her identification.

The appellant walked around the shop for a while and when he came to the counter Mrs. Kleckner asked if she could help him. At this point, the appellant reached into his pocket, pulled out a gun and said, "This is a robbery, give me your money." (R. 72). He kept telling her to give him her money and not to look at him. Mrs. Kleckner could see the customers looking through their billfolds for money.

Mrs. Kleckner told the appellant she did not have any money and he pointed to the cash register. She opened the register and gave him $150. The appellant then left the shop and went around the corner to the right.

Mrs. Kleckner then told her husband they had been robbed and the police were called.

On voir dire, Mrs. Kleckner testified she was shown a set of photographs sometime after the robbery. She picked out a subject (the appellant) but stated she wanted to see him in person to be certain. A line-up was arranged and Mrs. Kleckner requested each of the six subjects repeat, "This is a robbery, give me your money." (R. 32). A combination of hearing the voice and seeing the subject's face and profile helped her identify the man who robbed her that day. The man she identified was the appellant.

State's Exhibits number 1-7 (which were reprints of the photographs originally shown to Mrs. Kleckner) were shown to Mrs. Kleckner. She picked out Exhibit # 1, the photograph of the appellant.

Howard Miller, an investigator with the Birmingham Police Department, testified he showed Mrs. Kleckner a group of seven photographs. At this time there was not a suspect in custody and he made no indication to Mrs. Kleckner as to which photograph she should choose or that the man who robbed her would be among those photographs.

Miller testified Mrs. Kleckner picked out the man depicted in State's Exhibit # 1 and said she thought this was the man but could not be sure until she saw him in person. He arranged a line-up and was unable to attend but he never suggested to Mrs. Kleckner that the man she picked out in the photographs was to be in the line-up.

Miller further testified that State's Exhibits number 1-7 were not the exact photographs which Mrs. Kleckner had seen. These were black and white and reprints of the negatives of the same photographs she had seen. He did not have the original photographs because they had faded out due to problems with the department's black and white processing.

Johnny Woods of the Birmingham Police Department was in charge of the line-up which Mrs. Kleckner and several other witnesses to other crimes viewed. Woods told all of the witnesses to take a good look at each of the subjects. He informed them that the person they were looking for may or may not be involved in the line-up. If the witness so requested, the subjects could turn a certain way or speak a particular phrase. Woods testified all of the subjects were wearing white overalls and he made no indication to the witnesses as to whom they should choose.

Mrs. Kleckner looked at the subjects, listened to them say a phrase and then picked out the appellant.

Michael Carl Shores of the Birmingham Police Department was the officer called to the scene of the robbery. He interviewed the witnesses, obtained a description of the suspect and filed the incident report. Shores testified he did not request fingerprinting because so much of the shop was common ground (items touched frequently by many persons).

The first witness for the defense was the appellant's wife, Patricia Jones. She testified she, the appellant, and her children were at home watching television on the afternoon of the robbery. Lamar Benson and Gregory Humphrey had been at her house around 3:00 p.m. that afternoon, she said. Mrs. Jones admitted on cross-examination that she never told the district attorney's office that the appellant was home with her on that day.

Lamar Benson had been staying at the Jones house for two weeks prior to the appellant's arrest. On the night of his arrest, Benson and Humphrey were at the Jones house at 6:00 p.m. The two left and Benson returned sometime after 9:00 p.m.

Sometime after midnight, Mrs. Jones went to the door. The police identified themselves and asked for Lamar Benson. They arrested both Benson and the appellant.

Lamar Benson testified against the advice of his lawyer. On March 23, 1980, Greg Humphrey told him to drive to a flower shop in Woodlawn. When they arrived at this place, Humphrey got out of the car and told Benson to wait. A few minutes later, Humphrey came back to the car and told Benson to drive off. On that day, Humphrey was wearing bluejeans, a green army jacket and a burgundy skull cap and was carrying a .22 gun. Benson claimed the appellant was not with them on that day.

Howard Miller, a rebuttal witness for the State, testified he arrested Greg Humphrey on April 2, at 1:30 or 2:00 a.m. Miller had a warrant for Benson's arrest so Humphrey showed them where Benson was staying.

Miller and the other police officers went to the appellant's house around 3:00 or 3:30 a.m. and arrested Benson and the appellant. The appellant was told he was under arrest for robbery (Mrs. Kleckner had already picked the appellant out in the photographs).

The next day Miller had a conversation with Benson. Benson stated he did not have anything to do with the robbery and he said Humphrey and the appellant committed the robbery.

I

The appellant contends his in-court identification should have been suppressed because it was tainted by unnecessarily suggestive out-of-court identification procedures.

The record does not support the appellant's contention. The trial judge, after listening to testimony on voir dire concerning the circumstances surrounding the photographic array and the live line-up, did not find the procedures to be unduly suggestive. Neither do we.

Mrs. Kleckner was shown a group of seven photographs from which she picked out the appellant. At that time, she admitted she could not be certain the man she picked out was the robber until she saw him in person. A line-up was promptly arranged and Mrs. Kleckner positively identified the appellant after seeing him and hearing his voice. Never was there any suggestion or indication made to Mrs. Kleckner by anyone during the photographic or live line-up as to whom she should choose.

The appellant claims Mrs. Kleckner should not have been allowed to hear the subjects in the line-up speak. However, "A person's voice is a 'physical characteristic,' subject to be compelled to disclose to identifying witness. United States v. Wade, 388 U.S. 218, at page 222, 87 S.Ct. 1926 [at page 1929] 18 L.Ed.2d 1149." Wilson v. State, 57 Ala.App. 125, 326 So.2d 316 (1975).

Therefore, we cannot find anything improper with the pre-trial identification procedures. See also Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.1980).

Furthermore, Mrs. Kleckner's in-court identification was based on her eye-witness observation of the appellant during the course of the robbery. We conclude her identification was totally reliable, based upon our application of the five factors enumerated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to the case at bar. (1) The opportunity of the victim to view the criminal at the time of the crime. Mrs. Kleckner had an ample opportunity to view the appellant during the several minutes he was in the shop. She saw him enter the store, watched him as he walked around and talked to him from close proximity. (2) The witness's degree of attention. Certainly Mrs. Kleckner's attentiveness was extremely acute when the appellant pulled out a gun and told her "this is a robbery." She was able to tell the police about the appellant's movements during the entire time he was in the shop. (3) The accuracy of the victim's prior description. Mrs. Kleckner gave the police a description of what the appellant was wearing, what kind of hair he had and his approximate size. (4) The level of certainty demonstrated by the witness at the confrontation. Even though Mrs. Kleckner could not positively identify the appellant from the photographs, she did so at the live line-up and at the trial. (5) The length of time between the crime and the confrontation. Mrs. Kleckner identified the appellant at the line-up less than a month after the robbery occurred.

Therefore, we conclude the appellant's motion to suppress his in-court identification was properly denied.

II

The appellant complains reversible error occurred when State's Exhibits 1-7, which were not the same exact photographs shown to Mrs. Kleckner, were...