Pichon v. State

• Decision Date: 14 November 1984
• Docket Number: No. 64137,64137
• Citation: 683 S.W.2d 422
• Parties: Monty Charles PICHON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 422

683 S.W.2d 422

Monty Charles PICHON, Appellant, v. The STATE of Texas, Appellee.

No. 64137.

Court of Criminal Appeals of Texas En Banc.

Nov. 14, 1984.

Rehearing Denied Feb. 6, 1985.

Albert S. Low, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Michael K. Aduddell and Larry Knapp, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

The appellant was convicted in the trial court, after separate jury trials, of committing the offenses of possession of methamphetamine, trial court Cause No. 291,321, for which punishment was assessed by the trial court at three and one-half (3 1/2) years confinement in the Texas Department of Corrections, and aggravated robbery, trial court Cause No. 291,302, for which punishment was assessed by the trial court at eighteen (18) years confinement in the penitentiary.

Although there was an order entered to consolidate the above-styled causes, through administrative error, trial court Cause No. 291,321 was not retained by this Court, but was instead transferred to the Corpus Christi Court of Appeals.

On June 30, 1982, the Corpus Christi Court reversed the conviction in 291,321 and remanded it for a new trial. Neither the State nor the appellant petitioned this Court for discretionary review, and the decision in that cause became final. The opinion of the Corpus Christi Court, however, does not implicate nor affect the appellant's conviction for aggravated robbery.

Thus the appeal that appellant brings to this Court is from his conviction for aggravated robbery in trial court Cause No. 291,302. Appellant challenges the sufficiency of the evidence to support the conviction, and in two grounds of error, alleges that the trial court erred in admitting into evidence certain lineup and in-court identification testimony of the victim and two police officers, in violation of appellant's rights under the state and federal constitutions. We disagree and affirm.

Viewed in a light most favorable to the verdict, the record reflects that the victim Barbara Kramen, on the morning of January 12, 1979, was walking across the parking lot of her apartment complex when she noticed the appellant sitting on some steps. Ms. Kramen testified that the appellant appeared to have been drunk or hungover and she walked right past him. The victim stated that, as she was putting things into her Corvette automobile, the appellant suddenly came up by her side and told her to "Drop everything, Babe, and give me the keys." She testified that the appellant had his left hand in his pocket and his right hand contained a black revolver, which to her appeared to be a .38 caliber weapon. She gave the appellant her keys and testified that he climbed into her car, backed out of her parking space and left the apartment complex.

The victim further testified that she immediately contacted the police, gave them a detailed description of her assailant, and "pressed charges." She testified that approximately ten days to two weeks after the robbery, she was asked to view a lineup conducted at the downtown police station. She stated that she was immediately able to identify the person who had robbed her, and she testified she was also able to identify a picture of the appellant as the person who took her car.

A neighbor of the victim, a Mr. Robert Ferris, testified that he saw a man getting into the victim's car on the morning of the robbery, and although he could not identify the assailant, the description that he gave to the police matched the description given by the victim. The evidence to support the jury's finding of guilt is clearly sufficient. Appellant's ground of error number three is therefore overruled.

Appellant's grounds of error number one and two may be grouped together, and the issue, reduced to its elemental form, is set out thusly: Can a defendant's face be tainted and suppressed in a criminal case, in the same way that inanimate evidence, say the product of an unreasonable search, such as a weapon or contraband, be tainted and suppressed?

The facts presented in United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) are virtually indistinguishable from the facts in the instant case.

In Crews, after she had been accosted and robbed at gunpoint by a young man in the women's rest room on the grounds of the Washington Monument, the victim reported the incident to the police. Several days later, after two other incidents of robbery and assault in the rest room had occurred, United States Park Police, who were aware of the rest room incidents and the similar descriptions of the robber which all three victims of the rest room incidents had given to the police, questioned a young man whom they observed in the area of the rest rooms at the Washington Monument, and, after learning the young man's name, his age, and that he was not in school because he had just "walked away," the officers allowed him to leave, but shortly thereafter detained him when a tour guide, in response to a request by one of the officers, identified the man as one he had seen hanging around the area of the Monument on the date of the first robbery. The officers then summoned a detective who was investigating the rest room robberies.

Upon arriving at the scene the detective attempted to take a photograph of the man which could be displayed to the victims of the robberies, but weather conditions thwarted his efforts. Thereafter, the man was taken into custody, ostensibly because he was a suspected truant, and transported to police headquarters, where the police briefly questioned him, obtained a photograph of him, telephoned his school, and then released him, without ever charging him with an offense during his detention of approximately one hour. The following day, the victim of the first robbery identified the photograph of the man as being the one whom had robbed her, and thereafter, at a lineup, the woman again positively identified Crews as the robber.

Prior to trial for armed robbery, Crews moved to suppress all identification testimony, contending that his detention on the truancy charges had been merely a pretext to allow the police to obtain evidence for the robbery investigation. The trial court ruled that the detention constituted an arrest without probable cause, and, held that the products of such arrest, namely the photographic and lineup identifications, could not be introduced at trial, but with respect to the victim's ability to identify the defendant in court, the trial court ruled that an in-court identification (emphasis added) of the defendant by the victim at trial would be admissible. Crews was then convicted of armed robbery on this victim's testimony. On appeal, the District of Columbia Court of Appeals reversed the conviction, holding that the in-court identification testimony should have been excluded as a product of a violation of the defendant's Fourth Amendment rights. The Supreme Court then granted certiorari on the government's petition.

Justice Brennan, writing for a majority of the Supreme Court, found the application of the "fruit of the poisonous tree" doctrine by the Court of Appeals to be misplaced. Justice Brennan observed:

"A victim's in-court identification of the accused has three distinct elements. First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender. In the present case, it is our conclusion that none of these three elements 'has been come at by exploitation' of the violation of the defendant's Fourth Amendment rights. [citation omitted.]

"In this case, the robbery victim's presence in the courtroom at respondent's trial was surely not the product of any police misconduct. She had notified the authorities immediately after the attack and had given them a full description of her assailant. The very next day, she went to the police station to view photographs of possible suspects, and she voluntarily assisted the police in their investigation at all times. Thus this is not a case in which the witness' identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused. Here the victim's identity was known long before there was any official misconduct, and her presence in court is thus not traceable to any Fourth Amendment violation. (emphasis added.)

"Nor did the illegal arrest infect the victim's ability to give accurate identification testimony. Based upon her observations at the time of the robbery, the victim constructed a mental image of her assailant. At trial, she retrieved this mnemonic representation, compared it to the figure of the defendant, and positively identified him as the robber. No part of this process was affected by respondent's illegal arrest. In the language of the 'time-worn metaphor' of the poisonous tree, Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008 [2010], 20 L.Ed. 1047 (1968), the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned."

In the case at bar, the victim was robbed some eight days prior to the appellant being detained and illegally ¹ (emphasis added) arrested on unrelated charges. The victim immediately notified police of the robbery and gave them a highly-detailed description of the perpetrator. Additionally, the victim testified at trial that her encounter with the appellant lasted a full five minutes, and she testified she would "never forget" his face....