Lee v. State, F-78-673

• Decision Date: 10 September 1979
• Docket Number: No. F-78-673,F-78-673
• Citation: Lee v. State, 600 P.2d 344 (Okla. Crim. App. 1979)
• Parties: Gene Clifton LEE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 344

600 P.2d 344

Gene Clifton LEE, Appellant, v.The STATE of Oklahoma, Appellee.

No. F-78-673.

Court of Criminal Appeals of Oklahoma.

Sept. 10, 1979.

An appeal from the District Court, Carter County; Earl LeVally, Judge.

Gene Clifton Lee, appellant, was convicted of the offense of Attempted Robbery With Firearms, After Former Conviction of a Felony; was sentenced to forty-five (45) years' imprisonment, and appeals. AFFIRMED.

Stephen D. Colbert, Ardmore, for appellant.

Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., Bruce Rooker, Legal Intern, for appellee.

OPINION

CORNISH, Presiding Judge:

The appellant, Gene Clifton Lee, appeals from a conviction in the District Court of Carter County, CRF-77-229, for the offense of Attempted Robbery With Firearms, After Former Conviction of a Felony.He was sentenced to forty-five (45) years' imprisonment.We affirm.

Two masked persons, one male and one female, walked into the T & M Pharmacy in Ardmore, Oklahoma, at approximately 2:30 to 2:40 p. m. on Wednesday, December 7, 1977.The male, armed with a pistol, announced that the store was being robbed and demanded all the money and "Class A Drugs."The pharmacist, Bill Michael, asked what was meant by "Class A drugs," and the female responded they wanted Preludin and Quaalude.Mr. Michael then informed the female that he recognized her and asked them to leave.The male left the pharmacy immediately, but the female did not leave.Mr. Michael then instructed an employee to turn on an alarm, which the woman then attempted to prevent.The alarm was apparently a ruse, as the pharmacy had no alarm system.Shortly thereafter, the female departed.

At about the time the would-be robbers were exiting the pharmacy, two citizens, Ms. Barbara Terry and Ms. Justa Appleton, who are sisters, were driving by in their car.They noticed the two masked individuals and quickly surmised that a robbery had taken place.They followed the car in which the robbers fled and obtained the license plate number of the car.

The two sisters returned to the pharmacy and gave the investigating police officer the slip of paper on which was copied the suspect vehicle's tag number.Subsequently, the tag number and the vehicle description were radioed to on-duty police officers.Several officers recognized the description of the vehicle as that of the appellant, who was arrested at his home.

I

The appellant's first assignment of error relates to the eyewitness identification of Bill Michael.Mr. Michael identified the appellant in court as the man who had attempted to rob him.It is argued this was error due to the impropriety of identification procedures employed prior to trial.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140(1977), the United States Supreme Court held that the single determinative quality for the admission of identification testimony is reliability.Id. at 114, 97 S.Ct. 2243;Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401(1972).The reliability of the identification is evaluated by an examination of the "totality of the circumstances."Manson v. Brathwaite, supra, 432 U.S. at 104, 97 S.Ct. 2243;Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199(1967).

Manson specifies the factors enumerated in Neil as guidelines for examining the "totality of the circumstances."Manson v. Brathwaite, supra, 432 U.S. at 115, 97 S.Ct. 2243.

The factors to be weighed against the corrupting effect of the suggestive procedure in assessing reliability are: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation.

The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment is violated when the photographic identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247(1968).However, in Neil v. Biggers, supra, the Court clarified the relationship between "suggestiveness" and "reliability" by its statement of the issue, "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive."409 U.S. at 199, 93 S.Ct. at 382.

In Thompson v. State, Okl.Cr., 438 P.2d 287, 289(1968), this Court set forth a number of procedures to insure the validity of a lineup identification and reduce the likelihood of having in court identifications tainted by an improper pretrial lineup.However, these procedures are only recommended, not required; and subsequent cases have clearly held that failure to follow each and every procedure recommended is not, per se, grounds for reversal where there is substantial compliance with the Thompson Guidelines.SeeWilson v. State, Okl.Cr., 556 P.2d 1311(1976).

In accordance with the foregoing analysis, we proceed to examine the circumstances of the identification in this case.The appellant argues that Mr. Michael is the only witness out of seven who identified the appellant as the perpetrator.The implication is that if the other six were unable to identify him, then Mr. Michael's identification must be questionable.This argument is not persuasive.Mr. Michael was the manager of the store.His responsibility for events therein could provide greater motivation to observe and remember the appearance of the robbers.The record, in fact, reflects that he correctly identified the female suspect during the robbery attempt.Applying the five factors of Neil v. Biggers, supra, in the present context, there appears to be little indication that the identification was unreliable.

The appellant next urges that the photographic lineup was suggestive because the three photographs shown to the witness "did not look anything alike."Mr. Michael testified clearly that five or six photographs were shown to him and that they were of "different people," not that they looked "nothing alike."

The appellant also contends that Mr. Michael's response to an inquiry by the State at trial demonstrated an insufficient identification:

"Q.Okay, without the photographs, would you (have) been able to identify him today, without observing the photographs, prior to that?

"A.Probably would have."

The appellant's contention is that this response was "not sufficient under the law of the State of Oklahoma to constitute evidence beyond a reasonable doubt and the jury abused its discretion in finding that the defendant . . . was guilty beyond a reasonable doubt."

The appellant cites no authority indicating that this proposition is founded in law, nor do we know of any.The circumstances of this case indicate convincingly that Mr. Michael's identification was based on his observation during the robbery, not from the pretrial...