Spears v. State

• Decision Date: 03 February 1976
• Docket Number: 7 Div. 427
• Citation: 329 So.2d 579,57 Ala.App. 525
• Parties: Jerry SPEARS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 579

329 So.2d 579

57 Ala.App. 525

Jerry SPEARS v. STATE.

7 Div. 427.

Court of Criminal Appeals of Alabama.

Feb. 3, 1976.

Rehearing Denied March 9, 1976.

David A. Rains, and Robert G. Wilson, Fort Payne, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Spears was convicted of robbery and was sentenced to ten years in the penitentiary. He was represented by employed counsel and at arraignment he pleaded not guilty. After sentence he gave notice of appeal and trial counsel represents him on appeal.

The facts concerning the robbery are not in dispute. Appellant did not testify but he offered the testimony of his father and another witness in support of his alibi. At the conclusion of the State's case appellant moved to exclude the State's evidence on the ground the State failed to make out a prima facie case. This motion was overruled and denied.

On April 8, 1975, Mrs. Bertha Crane and her husband lived on Lookout Mountain toward Adamsburg in DeKalb County, Alabama. Her husband Price Crane was a mentally incompetent veteran of World War II and was drawing compensation for full disability. Mrs. Crane was a victim of cancer at the time of the robbery and could not walk without crutches.

Mrs. Crane testified that she was at home on April 8, 1975, about 5:00 p.m. when her husband was brought home by a man whom she had never seen before. Mr. Crane entered the house first and the other man followed pointing a gun at Mr. Crane's back. He told Mrs. Crane that Mr. Crane promised him taxi fare if he would take him home. Mrs. Crane went to her bedroom to get some change to pay the man for bringing her husband home. The man followed Mrs. Crane and kept the pistol pointed on her. She got her change purse and the man said he did not want that. She offered him a twenty-dollar bill and he told her he wanted all the money. She had six twenty-dollar bills left from her husband's check after buying groceries one time. With the gun still pointed on her the man took the six twenty-dollar bills. He told her he was going to take Mr. Crane with him and if she called the officers, he was going to kill her husband. He told Mrs. Crane that he wanted the jewelry and she told him they did not have any jewelry. He saw a knife in the dish drainer and he made Mr. Crane cut the telephone wires. He then took Mr. Crane and backed out of the house to his car and drove away.

Mrs. Crane's next-door neighbor called the Fort Payne Police Department and reported the robbery. When the officers arrived, Mrs. Crane gave them a description of the man who robbed her. She told the officers that the robber was about six feet tall and was about twenty-five years of age. That he weighed about 150 to 160 pounds and that he had a long belt buckle with something inscribed on it. She said he had long reddish-looking hair, and wore a hunting hat pulled down to his nose. She stated he was driving a white and black automobile. She told the officers she observed the man in broad daylight for five or six minutes.

The day after the robbery she viewed a lineup of five men and immediately identified appellant was the man who robbed her of $120.00. She made an in-court identification of appellant as the robber and stated that she was not basing her identification on the lineup but on seeking him when he robbed her and on seeing him in the courtroom and that there was no question in her mind that he was the man who robbed her.

Mr. Crane stated emphatically that she was not picking out appellant because of the lineup but because she got a good look at him at close quarters for five or six minutes when he was at her house in the daylight hours of April 8, 1975. She said there was no question in her mind that Jerry Spears was the one who robbed her.

Jimmy Cunningham, a neighbor of the Cranes, testified that on April 8, 1975, he saw Mr. Crane go by his house riding in the passenger seat of a white and black Chevrolet. He testified on the motion to suppress outside the presence of the jury, as well as before the jury, that in his best judgment Spears was the driver of the white and black car. He stated he was in the yard of his home and was not more than 20 feet from the automobile and he got a good look at the driver.

On cross-examination he stated that the Cranes lived on a dead end street and that he saw the car both coming and leaving by his house. As the car came back Cunningham could see the driver real well because he was closer to the road and the driver was on his side. He said he spoke to the driver but the driver did not speak to him. He said he had a long hard look at Spears when he tried to speak to him. He stated the driver had on a camouflaged hunting hat and had fairly long brown hair. He further testified that when he went down to the Police Department to view the lineup, he was looking around the place and his attention was drawn to a photograph on a bulletin board and that no one had directed his attention to the photograph. He called one of the officers over to the bulletin board and told him that was the photograph of the man who drove the white and black car by his house. This occurred before the lineup where Cunningham identified appellant. Cunningham stated very positively that his identification was based on seeing Spears driving the car to and from Mr. Crane's house and was not based on the lineup.

Mrs. Mattie White, a neighbor of the Spears family and Mr. Claude Spears, appellant's father, testified that on the day of the robbery, the white and black car was parked in front of the Spears' home with a flat tire. Mrs. White testified that she was positive the Right front tire was flat. Appellant's father was just as positive that the Left rear tire was flat. Mr. Claude Spears admitted the car belonged to his son. He further testified that on the day of the robbery his son helped him fix a garden for a Mr. Beason on Lookout Mountain. That they got back home late in the afternoon and his son borrowed his mother's car to go to Chattanooga to play pool, and that his white and black Chevrolet stayed at the house all night and was not moved until the following Wednesday.

Mr. Claude Spears turned over to the officers the hunting hat which belonged to his son and it was introduced in evidence as State's Exhibit No. 2 without objection.

On rebuttal Mr. Claude Spears was thoroughly impeached by three officers who testified that the father told then his son helped him work the garden the day Before the robbery.

City Detective Wayne Parker was one of the three officers to whom Mr. Claude Spears made the statement that his son helped him work the garden the day before the robbery. He further testified that he knew appellant had a white and black Chevrolet and that around 6:30 p.m., on the day of the robbery, he went by appellant's father's home and that his car was not parked there.

Appellant makes two contentions to the effect that this case is due to be reversed. His first claim is that he was charged with a capital offense and was entitled to a special venire. Secondly, he contends that a pretrial confrontation for the purpose of identification of the accused as the guilty party is unconstitutional and a violation of due process of law if it was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

We will treat these contentions in the order in which they are presented.

In Burt v. State, 54 Ala.App. 1, 304 So.2d 243, certiorari denied, 293 Ala. 749, 304 So.2d 246, we said:

'Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, decided...