McKinnis v. State, 1 Div. 157

• Decision Date: 07 October 1980
• Docket Number: 1 Div. 157
• Citation: McKinnis v. State, 392 So.2d 1266 (Ala. Crim. App. 1980)
• Parties: Ollie McKINNIS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1266

392 So.2d 1266

Ollie McKINNIS, Jr. v. STATE.

1 Div. 157.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Nov. 25, 1980.

W. Gregory Hughes, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for robbery. Sentence was life imprisonment.

I

Initially, the defendant alleges that the trial court erred in refusing to suppress the victim's in-court identification of the defendant. A review of the totality of the circumstances shows the pretrial identification to have been reliable and not in violation of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

At approximately 7:45 on the morning of June 9, 1979, Ms. Linda Diane Gossett drove her automobile into the parking lot of the Mobile Check Exchange. She observed the defendant walking down the street. Ms. Gossett stated, "I noticed him in the beginning ... because when I turned in the parking lot he was so close to my car." When she started to get out of her car, Ms. Gossett noticed that the defendant had changed directions and was coming back through the parking lot. She thought that this was "kind of strange." She spoke to the defendant and went to open the door to the Exchange. As she did, the defendant came up behind her and "pulled" a gun. He told her to open the office door, give him the money and that if anything happened he would "blow her brains out." Ms. Gossett then gave the defendant the five thousand dollars which was in the office safe.

The defendant was not wearing a mask and during the ten or fifteen minutes the robbery took Ms. Gossett looked at his face. She saw him "twice outside face to face" before she entered the Exchange. She was able to give a full description of the defendant to the police who arrived "right after the robbery." Within two hours after the robbery, Ms. Gossett had selected the defendant's picture from a "book" at police headquarters. She looked through about one and one-half books before selecting the defendant's picture. Each book contained approximately 100 black and white pictures. No one told her whom to select and she had no help from anyone in looking through the books.

Ms. Gossett was positive in her identification of the defendant.

"(W)hen I came to the picture I knew definitely it was him and there was no doubt in my mind."

"I sat at a table right by myself with no help from anybody and looked at books and looked at books until I came across his picture and I knew definitely that it was him and I know today it was him. There is no doubt in my mind."

Ms. Gossett's identification of the defendant was based in some part on the bridge of the defendant's nose.

Although Ms. Gossett stated that she became "hysterical" after the robbery and despite the fact that defense counsel placed emphasis on her allegedly erroneous description of the defendant's facial hair, the facts show that the pretrial identification procedure employed here was not suggestive and did not create the likelihood of irreparable mistaken identification. Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, 339 So.2d 601 (Ala.1978). "The mere fact that a witness was shown photographs does not establish suggestiveness." Childers, 339 So.2d at 599; Henderson v. State, 373 So.2d 1218 (Ala.Cr.App.), cert. denied, 373 So.2d 1221 (Ala.1979). Here there was not the usual photographic "display" or "lineup" in which the officer gives the victim a preselected group of photographs.

We have carefully and fully considered the facts of this case with the factors which must be considered when evaluating the likelihood of misidentification. Neil, supra. We are clear in our conclusion that the trial judge did not commit error in refusing to suppress Ms. Gossett's in-court identification of the defendant.

The defendant also contends that the in-court identification should have been suppressed because he was not given a lineup despite the fact that he allegedly requested one after his arrest. A person accused of crime does not have a constitutional right to be identified by the victim in some type of pretrial identification procedure. The fact that the defendant requested but did not receive a lineup does not constitute a denial of due process of law.

II

The defendant alleges that he was denied adequate representation of counsel because his trial counsel, who had been retained by the defendant's family and who represented the defendant at trial even though the trial judge had appointed different counsel for the defendant, failed to take certain "actions". In particular, the defendant contends that his counsel failed to adequately represent him by:

"(1) failing to submit certain items of evidence, i. e., a motion for a lineup prior to the preliminary hearing held in District Court; (2) refusing to allow the Defendant to take the stand and testifying in his own behalf; (3) refusing to file a motion in limine to protect the Defendant from cross examination regarding his past record; (4) refusing to subpoena or to ask for a continuance for Detective Rigsby, who could testify that the Defendant had been denied a lineup; (5) defense counsel took no corrective action regarding the Defendant being seen in handcuffs by the jurors; (6) the Defendant's counsel failed to poll the jury; (7) the Defense counsel failed and refused to submit written charges and the Defendant had to have his girlfriend prepare them."

These allegations were made by the defendant immediately prior to his sentencing. In response to the defendant's remarks, trial counsel responded:

"Judge, I'd like to make a statement too for the record. Mr. McKinnis just answered his own question. He doesn't know the law. He's probably the most difficult client I've ever worked with. His parents retained me and all these frivolous motions that he was to file, I did not feel like that would help him. And I advised him not to take the stand, I didn't force him not to. He could have walked up there and taken the stand if he'd wanted to."

"Detective Rigsby is seriously ill in the hospital and I do not feel like his testimony would have aided us at all."

Initially we note that none of these charges is properly supported by the record. The only evidence to validate the substance of these charges is the defendant's statements in response to the judge's asking him if he had anything to say why sentence should not be pronounced on him and the response made by defense counsel to the defendant's allegations.

A motion for a new trial was filed by counsel different from trial counsel. A hearing was held on this motion yet the record is silent as to the occurrences at that hearing. Apparently there was no evidence presented to buttress the defendant's allegations and it does not appear that the defendant even testified in support of his claims. For this reason we simply have nothing to review in this regard. The overruling of a motion for a new trial is not error where there was no evidence offered in support of the motion. Naugher v. State, 241 Ala. 91, 1 So.2d 294 (1941).

However, even if we assume that the trial judge had knowledge of all the facts surrounding all the incidents complained of by the defendant, so that the introduction of additional evidence was unnecessary, Taylor v. State, 222 Ala. 140, 131 So. 236 (1930), we are of the...