Shewey v. State
| Decision Date | 03 October 1972 |
| Docket Number | 4 Div. 101 |
| Citation | 267 So.2d 520,48 Ala.App. 730 |
| Parties | David B. SHEWEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
G. A. Lindsey, Elba, for appellant.
William J. Baxley, Atty. Gen., and John A. Yung, IV, Asst. Atty. Gen., for the State.
Appellant was convicted of robbery and his punishment was fixed at ten years in the penitentiary.
Mary A. Tillis testified that on Saturday night, October 25, 1969, she was operating her grocery store and service station located on the New Brockton Highway in Coffee County; that a friend, Mrs. Dorothy Parrish, was in the store with her at the time; and that appellant came into the store armed with a twenty-two caliber automatic pistol and demanded her money. She stated that she went to the cash register and handed him the money, which consisted of $418.00 in cash and some checks.
Mrs. Tillis further testified that she first saw the appellant about fifteen or twenty minutes prior to the robbery when he came into the store and asked for directions to California. According to Mrs. Tillis on that occasion appellant stayed in the store for approximately ten or fifteen minutes during which time she conversed with him and was able to observe him in what she described as a well-lit store. Mrs. Tillis described his dress as brown pants, yellow shirt, and a yellow jacket. When he returned he had on a long dark green Army overcoat. After handing over the money Mrs. Tillis immediately notified the Enterprise police.
Mrs. Dorothy Parrish testified that she was present in the store when the robbery occurred. Her testimony was essentially the same as that of Mrs. Tillis.
Lt. Wade Cooper of the Enterprise Police Department testified that he was on duty on the night in question; that he and Sgt. Henderson were cruising in a patrol car when a bulletin came over their police ban radio that an armed robbery had taken place at Tillis Grocery on U.S. 84 between Enterprise and New Brockton. The officers proceeded to the scene and were there informed of the description of the suspect.
Shortly thereafter, Officers Cooper and Keene saw the appellant as he was coming out of 'Marsh's Snooker Corner' on South Main Street in Enterprise. The appellant was immediately apprehended and placed under arrest by Officer Keene for robbery. At that time, and again at police headquarters, appellant was advised of his rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. This was stipulated by the appellant.
Appellant testified in his own behalf. He stated that he resided in Enterprise but that at the time of the robbery he was in the United States Army stationed at Ft. Rucker, Alabama. He stated that at the time of his arrest he had on his person about $300.00 in cash which was part of some money his parents had given him when he left basic training at Ft. Leonardwood, Missouri, to come to Ft. Rucker.
It was his testimony that after requesting counsel and being without same, the police attempted to coerce him into making a confession by threatening to 'tear up his car' in search of the money taken during the robbery and forced him to participate in a a lineup without counsel being present.
The State concedes that the appellant did not have counsel at the lineup.
Both Mrs. Tillis and Mrs. Parrish made in-court identifications of the accused. Timely objections by defense counsel were interposed to this testimony on the grounds that both witnesses had viewed the accused in a police lineup when the accused was not represented by counsel and that such lineup procedure formed the basis for the in-court identifications, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.
If it is established by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification, then prior identification at lineup without counsel's presence does not constitute reversible error. See Wade and Gilbert, supra. 1
The criteria to be considered in determining whether the in-court identifications were tainted by the lineup procedure, enumerated by the Supreme Court in Wade and followed by this court in Robinson v. State, 45 Ala.App. 236, 228 So.2d 850; Hardy v. State, 45 Ala.App. 632, 235 So.2d 677; Ross v. State, 46 Ala.App. 88, 238 So.2d 887; and Pruitt v. State, 46 Ala.App. 491, 243 So.2d 763, are set out as follows:
Mrs. Tillis, the proprietor of Tillis Grocery, testified on voir dire as follows:
'Q. Mr. Lindsey asked you if based on your identification there at the police station if that was what you are basing your identification on today and you said that's right. How long was it after the robbery that you went to the police station and saw this lineup?
'A. Within an hour.
'Q. Within one hour. Can you put the identification--can you put the lineup out of your mind irregardless of any lineup, is this the man who robbed you on that occasion?
'A. Yes.
'Q. (Mr. Stephens continuing) Irregardless of the lineup. And the lineup was conducted within an hour after the robbery, and irregardless of the lineup this is the man who robbed you?
'A. That's right.
'Q. All right, ma'am. Now, Mrs. Tillis, before--when you went to the police station, before you went into the place where this defendant and the other three individuals were did anybody tell you or suggest to you that this man was in the lineup or did they say go look and see if you see the man or what was said if you recall?
'A. They just said they had a lineup. They wanted us to identify and see if that was the boy.
'Q. See if that was the boy?
'A. That's right.
'Q. Did anybody suggest to you where he was if he was in there?
'A. No, they didn't.
'Q. Where he might be in the lineup?
'A. No, they didn't.
'Q. Did anybody talk to you in any way while you were in there looking at the lineup?
Examination on voir dire of Mrs. Dorothy Parrish, the other eyewitness to the robbery, revealed the following:
'Q. Mrs. Parrish, regardless of the lineup--let me ask you this: How long was it after he had been in there in the army coat and robbed the place was it before you viewed the lineup, in your best judgment?
'A. Well, it must have been at least an hour or maybe not quite that much. I don't know, I was so scared until I couldn't remember time at that time anyway.
'Q. Somewhere in the neighborhood of an hour?
'A. I think so.
'Q. All right, ma'am, regardless of the lineup, if you can put it out of your mind, is this the man who robbed that store?
'A. Yes.
'Q. (Mr. Stephens continuing) And without regard to the lineup you would know him and you recognize him as the person who robbed that store on that occasion regardless of the lineup?
'A. I would.
'MR. STEPHENS: All right.'
And further:
'Q. Now, aside and apart from your viewing the man who robbed you, did the lineup--your seeing him in the lineup have anything to do with your identifying him here now?
'A. Well, the only thing, he looks--in the face he looks just like he did down there.
'Q. Well, I know, but does he look just like he did at the time of the robbery?
'A. Well, he has on his uniform now and he was dressed different.
'Q. But it's the same man?
'A. Yes, sir.
'Q. If you had never seen him in the lineup could you identify him here?
'A. I believe I could have.
'Q. Well, what I am trying to say is, did the lineup have anything to do in your mind with identifying him here?
'A. No, sir. I think I could have identified him anywhere, I believe I could.
'Q. As the same man?
'A. Yes, sir.
'Q. Did you tell me that you could identify him here regardless of whether you even had seen him in a lineup or not?
'A. I believe I could.
'Q. That is your opinion?
'A. Yes, sir.
'Q. In your opinion did the lineup have anything to do with your identifying him here?
'A. The lineup down there had anything?
'Q. Yes.
'A. No, sir.
'Q. You had seen him on two occasions an hour before?
'A. Yes, sir.
'Q. Did anyone point out anyone to you in there as being the subject?
'A. No, sir.
'Q. Just went in there and looked, and what did you do, you pointed out this man?
Thus, in summary the record shows that: (1) both witnesses had a prior opportunity to observe the accused at close range, (2) both witnesses stated that they could have identified the appellant independent of the lineup, (3) there was no identification made prior to lineup of someone other than appellant, (4) there was no failure to identify the appellant on a prior occasion, and (5) the lapse of time between the commission of the crime and the lineup was quite short.
We, therefore, conclude that the evidence supports the trial judge's ruling that the failure of the appellant to have counsel at the lineup did not taint the witnesses' in-court identification so as to require their exclusion. Nor do we here find any violation of the court's holding in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
Appellant's second claim of error relates to the overruling of appellant's...
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