Miller v. State

• Decision Date: 03 May 1983
• Docket Number: 4 Div. 94
• Citation: 431 So.2d 586
• Parties: Freddie Lamar MILLER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 586

431 So.2d 586

Freddie Lamar MILLER v. STATE of Alabama.

4 Div. 94.

Court of Criminal Appeals of Alabama.

May 3, 1983.

John M. Gruenewald, Dothan, for appellant.

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

TYSON, Judge.

Freddie Lamar Miller was indicted for robbery in the first degree, in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant "guilty of Robbery, Third degree" and the trial judge set sentence at four years' imprisonment in the penitentiary.

Betty Lou Whittaker testified she was employed by the Home Oil Company on the morning of July 9, 1982, and was working at one of its stations that morning. At approximately 3:45 a.m., she was inside the store while her cousin by marriage, Barney McKenzie, was outside by the gasoline pumps. Sometime thereafter, a black male wearing bluejeans, a loose-fitting brownish print shirt and sunglasses entered the store. He was approximately 5' 8"'' tall, weighed 160 pounds, was of medium complexion and had a medium thick mustache and bushy sideburns. There were no other customers in the store at this time.

On voir dire, Whittaker testified she looked through three sets of five photographs each and picked the appellant from the last set. She stated black males were depicted in each of the photographs but not all of the subjects had mustaches and bushy sideburns. In fact, the appellant did not have bushy sideburns in the photograph selected, but he did, in fact, have a mustache. There was no suggestion made to her as to which photograph she should choose, and she was positive the appellant was the one who had robbed her on the night in question.

Defense counsel objected to any in-court identification because it would be tainted by suggestive out-of-court procedures. The trial judge then asked Whittaker, the victim, if the appellant was the man she saw that night, and not necessarily the one she had seen in photograph and she replied that he was.

The jury returned to the courtroom and she identified the appellant as the man who robbed her. Whittaker further testified the appellant said to her, "Give me everything you've got on the counter." (R. 33). She did not see a gun, but she thought he had one because of the way he held his hand inside his shirt and he told her, "I have got a gun." (R. 38).

The appellant kept telling Whittaker to hurry and when she accidentally hit a button on the cash register which caused it to buzz, he told her not to set off any alarms. She opened the register with a key and gave him $170. When she removed a $20 bill from a certain bin in the register, a silent alarm sounded at the police department.

The appellant then told her not to move or follow him and walked out the door and went around the corner, out of the store.

Whittaker said the appellant stayed in the store for five or six minutes and she got a good look at his face. She was positive about her identification in court of the appellant.

Barney McKenzie testified he was sweeping trash in the parking lot at the Home Oil Company on July 9, 1982, at approximately 3:45 a.m. A black male, with a mustache and bushy sideburns, approximately 5' 8"'' tall, weighing 160-165 pounds and wearing bluejeans, a brown shirt and sunglasses walked up to him and asked him how he was doing and then walked into the store.

On voir dire, McKenzie testified he was unable to identify the appellant in any of the photographs shown him by the police. In the presence of the jury, he did identify the appellant as the man he saw that night and he was positive of that identification. McKenzie stated he saw the appellant walk around the corner of the building when he left, but he did not see him with a gun.

Virgil Lee Hall testified he was riding in a taxi with the driver, Ray Lingo, and they were driving south on Oates Street, when a man jumped in front of the cab and said he wanted a ride. He was picked up on East North Street just north of Beulah Street. The man said he wanted to go across town and then changed his mind and told them he wanted to go to Young America.

On voir dire, Hall testified he was shown two sets of photographs and the State said he had picked out the appellant. Hall said the man he picked out was 5' 6"" or 5' 7"" tall, weighed 135-140 pounds and had long sideburns and "a goatie" but said that man was not in the courtroom.

On cross-examination, Hall stated the man appeared nervous and said, "Boy, I have f----- up now." (R. 85). On redirect, he stated the man had on a brown plaid shirt, and bluejeans. Hall admitted if he had picked someone out in the photographs, he might have a hard time recognizing that person later if they changed their appearance.

David Kirkland, an investigator with the Dothan Police Department stated he arrived at the scene shortly after the robbery. He tried to lift fingerprints but was unable to do so.

Harold Locke with the Dothan Police Department testified he had a warrant for the appellant's arrest and he effectuated his arrest while the appellant was riding in a car with Susan Fabris.

The only witness for the defense was Susan Fabris. She testified that on July 9, 1982, the appellant was a boarder at the trailer where she, her children and a girl friend were living. At the time, the appellant was unemployed and paid his rent by babysitting for her children.

On Thursday, July 8, 1982, at approximately 8:00 p.m., Fabris left the appellant at the trailer with her children and she went to the Busy Bee Cafeteria. The appellant and a friend, Willie Pittman, picked her up there at 11:30 p.m., and the three went to pick up her children at the babysitter's house. They all then went to her trailer, talked for a while and Pittman left at 1:30 a.m. (July 9, 1982). She and the appellant then ate and played cards until 4:30 a.m., when they went to bed.

On cross-examination, Fabris stated she is a prostitute and had been one for nine years. Her mother now has custody of her children.

Fabris said that she was not the appellant's girl friend and he was not her pimp. She admitted that the appellant could have been at the Busy Bee on the night of July 8, 1982, between 8:00 and 11:00 p.m. because she was working that night and had to leave twice during that time.

H.C. Ward, a rebuttal witness for the State, testified that on July 8, 1982, he was employed by the General Cigar Company and around 8:00 p.m., he went to the Busy Bee Restaurant on his supper break. He arrived there at approximately 8:10 p.m., and saw Fabris come in to the Busy Bee. Shortly after he arrived, he left and went to a service station to put air in his tires. He returned to the Busy Bee and parked where he had before.

At this point, he got out of his truck and had a conversation with a black male, 5' 8"" to 5' 10"" tall, weighing 160-170 pounds, wearing bluejeans and a brownish shirt and who had a mustache and heavy sideburns.

On voir dire, Ward testified he picked out the appellant in a group of photographs. He said he knew the appellant's name before he looked at the photographs, but said there was no suggestion made to him as to which person was the appellant.

In the presence of the jury, Ward identified the appellant as the man he saw that night. He said he saw the appellant for about one minute, got a good look at his face and was positive about the identification. The appellant had a gun with him that night at the Busy Bee.

I

The appellant contends he was denied a fair trial because the in-court identification by witnesses Ward and Whittaker was tainted by unnecessarily suggestive out-of-court identification procedures, specifically, the photographic line-ups that were shown to the two witnesses.

In Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), this court stated that:

"Whether an out-of-court identification procedure has violated due process depends upon the 'totality of the circumstances.' Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199], supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Coleman [v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387], supra; [Neil v.] Biggers [409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401], supra. This totality of the circumstances test is the standard in deciding whether an identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Caver v. Alabama, 537 F.2d 1333 (5th Cir.1973).

"In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson [v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140], supra. This determination involves the application of a two-pronged test.

"[T]he required inquiry is two-pronged. The first question is whether the initial identification procedure was 'unnecessarily' [Stovall ] or 'impermissibly' [Simmons ] suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been 'unnecessarily' or 'impermissibly' suggestive was so 'conducive to irreparable mistaken identification' [Stovall ] or had such a tendency 'to give rise to a very substantial likelihood of irreparable misidentification' [Simmons ] that allowing the witness to make an in-court identification would be denial of due process. United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.1970)."

See also Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983).

This record does not support the appellant's contention that either the photographic line-up shown to Whittaker, the victim, or the one shown to Ward was unduly suggestive. Whittaker stated that she looked through three sets of photographs before she picked out the appellant. She said that not all of the subjects had bushy sideburns and a mustache, but they were all similar...