Pickett v. State, 6 Div. 686

• Decision Date: 02 March 1982
• Docket Number: 6 Div. 686
• Citation: 417 So.2d 589
• Parties: Schullar PICKETT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 589

417 So.2d 589

Schullar PICKETT v. STATE.

6 Div. 686.

Court of Criminal Appeals of Alabama.

March 2, 1982.

On Return to Remand June 29, 1982.

Rehearing Denied July 27, 1982.

Belle H. Stoddard, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannon, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was found guilty of the first degree robbery of Charles Long. Sentence was twenty-five years' imprisonment.

I

Although the State's evidence did not establish that $400.00 was stolen as alleged in the indictment, such a variance is not fatal to the robbery conviction. Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958). In a prosecution for robbery, the value of the stolen goods need not be proved to be exactly as alleged in the indictment. Nolen v. State, 376 So.2d 1143, 1148 (Ala.Cr.App.), cert. denied, 376 So.2d 1148 (Ala.1979).

II

Although the pretrial showup identification of the defendant by the victim of the robbery was suggestive, after examining those factors which must be considered when evaluating the likelihood of misidentification, Jackson v. State, 361 So.2d 1152 (Ala.Cr.App.1977), we hold that the procedure was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law. As the trial judge remarked in denying the defendant's motion to suppress: "Sure it's suggestive. Just because it's suggestive doesn't throw it out."

The pretrial confrontation was held approximately twenty minutes after the robbery was committed. The victim, Charles Long, stated, "I think that's him" when the defendant was brought over to the police car in which Long was sitting. When an officer told Long that he had to be sure, Long replied: "(W)ell, where (are) the coat and hat? Put that on him." Long then made a positive identification of the defendant. On voir dire examination by defense counsel, Long was asked: "So you were able to pick him out by a coat and a hat?" Long answered: "Well, the face."

"Standing alone the fact that the accused wore a distinctive article of clothing may not have tainted the identification procedure." Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979). The mere fact that an unusual number of policemen were present at the time of the pretrial identification does not render the confrontation procedure so unduly suggestive as to violate due process. Cartee v. State, 390 So.2d 1121, 1125 (Ala.Cr.App.), cert. denied, 390 So.2d 1126 (Ala.1980).

Even if pretrial identification procedure employed in this case were unduly suggestive, the in-court identification of the defendant was still properly admitted because the prosecution established, by clear and convincing evidence, that the in-court identification stemmed from an independent source rather than the unfair pretrial confrontation. Cartee, 390 So.2d at 1123; Brazell, supra. See also Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981).

III

We find the testimony of the victim sufficient to establish a prima facie case of first degree robbery and to support the jury's verdict thereof. Thus, the trial court properly overruled his motion to exclude. Lynn v. State, 380 So.2d 366 (Ala.Cr.App.1980); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977).

IV

The defendant contends that the trial court committed reversible error in overruling his objection to portions of the State's closing argument.

From the record:

"MR. WHISONANT (Assistant District Attorney): They were very close to the wrecker company. They arrived there within just a few minutes, say five minutes. There they talked to the victim. He told them what happened. he described his assailant. He described the vehicle. They called back in and updated the description of the vehicle. He testified they were there within maybe 10 or 12 minutes, something along those lines.

"MR. NEWMAN: Your Honor, just a second. I think I heard him testify to something that's not in evidence--argue something that is not in evidence as to what description was given to the police.

"THE COURT: Ladies and gentlemen, in arguing the case these lawyers can give their best recollection of the evidence. They can also argue any inferences or conclusions that they can draw from the evidence. They can also argue if they desire their interpretations of the law. Of course what they say is not evidence. It's going to be up to you to decide what the evidence is in this case. You decide that, and I'll give you the law in the case. Overruled."

* * *

* * *

"MR. WHISONANT: Mr. Long testified he had a police scanner in his business that he listened to, I assume because of the nature of his work.

"MR. NEWMAN: Your Honor, I object again. He's back on the track again of testimony that's not in evidence.

"THE COURT: I've already said the jury has 12 minds and 24 ears. They heard the evidence. They'll decide what the evidence is. He can give his recollection. If there's a disagreement then they can argue that. If there is something absolutely not in evidence they can't argue that.

"MR. NEWMAN: But Your Honor, that's absolutely not in evidence." (Emphasis added).

Defendant argues that the above underlined portions of the State's argument referred to substantive facts not before the jury.

The defendant is correct in arguing that the above arguments concerned facts not before the jury. The district attorney's statements related to evidence adduced during defendant's motion to suppress outside the jury's presence. However, we do not find the facts so prejudicial as to require a reversal.

Statements of counsel in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981); McQueen v. State, 355 So.2d 407 (Ala.Cr.App.1978). In reviewing allegedly inflammatory questions or remarks by counsel which may result in irreparable prejudice to the accused, no legal standard exists by which to judge the effect of such. Each case must be determined on its own merits with deference given to the issues, parties, and general circumstances of the particular case. Lawson v. State, 377 So.2d 1115 (Ala.Cr.App.), cert. denied, 377 So.2d 1121 (Ala.1979). See also Robinson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980); Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975). The trial judge is in the best position to collect and weigh all of these considerations and great weight should be accorded his determination. Harrison v. State, 340 So.2d 849, (Ala.Cr.App.), cert. denied, 340 So.2d 854 (Ala.1976).

"Where the trial court acts promptly to impress upon the jury that improper statements should not be considered by them in their deliberations, the prejudicial effect of such remarks is removed." Lawson, supra, at 1117.

In Flint v. State, 370 So.2d 332, 334 (Ala.Cr.App.1979), this court stated:

"To require a reversal on the ground that the prosecutor has made a statement unsupported by the evidence, the objectionable statement must be made (1) as of fact, (2) the fact must be unsupported by any evidence, (3) must be pertinent to the issues, and (4) its natural tendency must be to influence the finding of the jury."

Here the statements of the prosecutor did not have a natural tendency to influence the finding of the jury.

"It is not every improper remark to which objection is not sustained which will require a reversal.... We do not regard the remarks in question as having a natural tendency to influence the jury adversely to the appellant or to have denied him a fair trial under the facts and issues of this case." (Citations omitted). Flint, supra, at 334.

V

Finally, the defendant contends that the police had no probable cause to stop the vehicle in which he was riding.

On the motion to suppress, the State called the victim as its only witness. Mr. Long testified that between 8:40 P.M. and 9:00 P.M. he was closing his wrecker service in downtown Birmingham and observed a turquoise or greenish colored "sixty model series" Chevrolet or Buick drive slowly in front of his business and around the corner. Moments later, as Long was walking to his car, he was approached from the rear by a black male wearing a tan colored overcoat and a hat and carrying a sawed-off shotgun. The robber told Long that he was being robbed and took his watch, diamond ring and billfold. He immediately fled around the same corner where the car had turned shortly before the robbery. Mr. Long testified that the area was well lit. The robber was so close to Mr. Long that he could have touched him. The whole incident took about three minutes.

Mr. Long immediately telephoned the police and gave a description of the car, although About five minutes after the robbery, Birmingham Police Officer Joe Johnson and his partner arrived on the scene. Mr. Long gave them a description of the robber. Long could not testify as to whether it was broadcast over the police radio. He did not think that he had given such a description when he had earlier called the police to report the crime.

he did not know whether it was involved in the robbery. While waiting for the police to arrive he overheard on his police scanner the dispatch concerning the description of the car. The description stated the color as "dark". Long called the police station and added the specific color he had seen which was turquoise. He described the car as "greenish" in color.

Approximately twenty minutes after the robbery, and about ten minutes after Officer Johnson arrived on the scene, Mr. Long was taken a short distance from the scene of the robbery to the scene of the defendant's arrest. Without hesitation, Mr. Long identified the automobile stopped...