Robinson v. State

• Decision Date: 17 June 1980
• Docket Number: 6 Div. 135
• Citation: 389 So.2d 144
• Parties: Charles Edward ROBINSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 144

389 So.2d 144

Charles Edward ROBINSON v. STATE.

6 Div. 135.

Court of Criminal Appeals of Alabama.

June 17, 1980.

Rehearing Denied July 29, 1980.

J. Mark White of Smith, White & Hynds, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Robbery; twenty-five years.

On August 15, 1978, Michael Prince was in charge of the Crestwood Pharmacy in Jefferson County, Alabama. He testified that, at approximately 4:40 P. M., an individual wearing jeans, a hat and a stocking over his face entered the store carrying a machine gun. According to Prince, the intruder shouted, "Hit the f- floor. I've got a f- machine gun." Prince said the man was directing these remarks to different people as he passed them going to the drug counter. Prince testified that, when he was approached by the intruder, he asked Prince to give him the "dope," then handed Prince a plastic bag. The witness stated that the machine gun was pointed at his face part of the time and at his body part of the time. Prince said the appellant was approximately a "foot, foot and a half away." Prince stated, "I was looking in his face."

Prince made a positive identification of the appellant in court, and the witness stated that he had viewed the appellant for approximately three or four minutes. Further, the witness said that, prior to leaving the store, the appellant approached the candy and tobacco counter and asked the saleslady for all the money. Prince said the lady handed over the money to the appellant. Later, it was determined that approximately one hundred dollars in cash was taken. Also, Prince gave a list and the value of approximately one dozen drugs which were taken.

During cross-examination, Prince testified that he was a "relief pharmacist" at the Crestwood Pharmacy and that Grace Habshey, Jesslyn Whaley and Greg Kearley were also working on the day of the robbery.

According to the witness, the appellant was with Prince the majority of the three to four minutes he was in the store. Prince stated that the appellant "wore over his head a light-colored stocking, woman's hose which came down to about his chin."

Prince recalled that, after the police arrived, he gave the robber's description as five feet, nine inches tall, 155 pounds, brown hair, and unknown color of eyes. Further, Prince said that the man had "the beginning of a five o'clock shadow like he hadn't shaved in a day or so." Prince stated that he indicated to the police, "(I)t looked like the starting of a mustache."

Prince acknowledged that he, along with the others, was upset by the robbery and that the ladies were crying. Prince testified that a day or two after the robbery he was shown about six or seven photographs by Detective Miller. The witness did not identify the appellant from those photographs. Prince said that he did not recall seeing any photograph of the appellant at that time, and, during the three or four times the witness was shown photographs, he, to the best of his knowledge, did not see a photograph of the appellant. Prince did indicate to Sgt. Miller that some of the photographs of the individuals bore characteristics similar to those of the appellant. The photographs were also shown to Whaley, and Kearley, but Prince did not recall that they indicated in any way that the photographs resembled the person who had committed the robbery.

According to Prince, Miller returned approximately three times in order to get everyone to view the photographs. About five weeks after the robbery, Prince went to a lineup. Prince said the people he viewed in the lineup were not any of those he had seen in the photographs and that, when asked if he could identify anyone in the lineup, he made an identification. However, before he made the identification, Prince had asked the individuals to repeat the statements which the robber had said at the time of the robbery. Prince testified that, although Officer Miller entered the room where the lineup was conducted, he did not make any remarks to indicate that the person who robbed the pharmacy was in the lineup. Prince recalled that the appellant was standing in position one at the lineup. Prince's in-court identification of the appellant was based on the lineup and the witness's recollection of the appellant in the pharmacy. Particularly, what caused Prince to identify the appellant were "the facial features" and the fact that he acted in the same manner in the lineup as he did during the robbery. According to Prince, the appellant was "real jittery, real nervous."

Prince denied that his identification of the appellant was based on the voice. Prince admitted that he wore contact lenses, that he was nearsighted, and that he had astigmatism.

During further questioning, Prince recalled that he had attended a preliminary hearing and that, at the time of the preliminary hearing, he identified the appellant.

At the conclusion of Prince's testimony, the defense moved to exclude the State's evidence on the ground that the State had failed to prove a prima facie case. Further, the defense argued that the State had "failed to lay the predicate in direct testimony as to the lineup sufficient to give the witness's identification sufficient credibility to be allowed."

This motion was overruled, and the appellant called Walter Enoch, a court reporter in Jefferson County, who testified that, on October 27, 1978, he reported a hearing involving the appellant in Judge Nice's court. Enoch identified two photographs which were introduced into evidence during that hearing and which were in his possession from the time of the hearing until his appearance in court. According to Enoch, the photographs were introduced when Officer Miller was giving his testimony.

Gregory Kearley was working at the Crestwood Pharmacy on August 15, 1978, as a pharmacy extern. Kearley recalled that a man entered the pharmacy "waving a gun, telling everyone to get on the floor and said that it was a holdup." Next, the man proceeded to the rear of the pharmacy where Prince was located and demanded Dilaudid, Demerol and Codeine. According to Kearley, he saw the man when he entered the store, when he proceeded to the rear where the pharmacy was located, and when he was leaving the store. Kearley described the man's clothing as bluejeans and either a fatigue jacket or a jean jacket. Further, Kearley said that, the man was wearing "some kind of hosiery" over his face, but wore no hat. According to Kearley, the man did not have a mustache, was five feet eight inches to five feet nine inches tall, weighed approximately 150 pounds, had dark brown hair and was alone.

Kearley recalled that he was shown some photographs by Detective Miller, who came to the pharmacy within two or three weeks after the robbery. According to Kearley, he was shown photographs on three or four occasions, and he identified some of the individuals as looking "similar" to the person who robbed the pharmacy. During the trial, Kearley was shown defendant's Exhibits A and B which he identified as the pictures which "were similar to those of the robber."

Approximately three weeks after viewing the photographs, Kearley attended a lineup, but did not identify anyone at that time. Kearley recalled that the appellant was in position number one.

During cross-examination, Kearley stated that "there was no one in that lineup that looked familiar to me, as far as facial appearance." However, he did say that the body build and size of the person in position number one were familiar. He recalled that, during the robbery, he observed the robber for about five seconds while he was lying on the floor. Kearley acknowledged that Prince spent more time with the robber than anyone else in the store. The witness said that the robber and Prince were within one foot of each other and were face to face during their conversation.

Kearley testified that he was not saying that the appellant was not the person who robbed the store. However, the witness added that he was not saying that either one of the men pictured in the photographs was not the robber.

Jesslyn Whaley, a pharmacist assistant at the Crestwood Pharmacy at the time of the robbery, recalled, "(S)omebody came in yelling that there was a robbery for everybody to hit the floor. He was yelling obscenities. And he told them to do it because he had a powerful machine gun." She said the man wore a "black mask or hose" pulled down below his chin. Whaley testified that she was behind the prescription counter at the time the man came in and that she could not say whether the man wore a hat.

Whaley acknowledged that Detective Miller had shown her some photographs of persons who had similar characteristics to the man she had seen in the pharmacy during the robbery. She stated that she did not attend the lineup and that she had never seen the appellant before.

On cross-examination, the witness said that she was within three or four feet of the person who robbed the pharmacy and viewed him for only a minute. Whaley remembered that he was not very tall and "wasn't heavy built." She testified that she was not saying that either of the men in the photograph was the person who robbed the pharmacy, but she was merely saying that they had characteristics similar to the robber.

During the trial, the State and the defense entered into a stipulation that Grace Habshey's testimony given in a prior hearing would be read and considered as testimony which Habshey would give if she were present.

Habshey's testimony was that she was working at the front of the Crestwood Pharmacy as a cashier at the time of the robbery. According to Habshey, a man entered the store and said, "Everybody hit the floor. This is a holdup." She said that she immediately hit the floor and did not look at the man. When he returned from the rear of the pharmacy, he approached her register and demanded that she give him...