Speigner v. State, 4 Div. 610

• Decision Date: 16 January 1979
• Docket Number: 4 Div. 610
• Citation: 369 So.2d 39
• Parties: James Alex SPEIGNER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 39

369 So.2d 39

James Alex SPEIGNER v. STATE.

4 Div. 610.

Court of Criminal Appeals of Alabama.

Jan. 16, 1979.

Rehearings Denied Feb. 20, 1979.

G. M. Harrison, Jr., Dothan, Maury D. Smith, Charles S. Coody, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

This is an appeal from a judgment of conviction by a Houston County Circuit Court jury, wherein James Alex Speigner was found guilty of rape and sentenced to fifteen years.

A detailed recital of the facts is not necessary since the sufficiency of the evidence is not preserved for review, because appellant did not move to exclude the State's evidence nor for a directed verdict; did not request the affirmative charge, and did not make a motion for a new trial.

Briefly, the facts are as follows:

The victim testified that on July 28, 1976 she was living in the upstairs apartment of a duplex in Dothan, Alabama, and that the downstairs part of the building was unoccupied. She stated that there was a wooded area across the street from the apartment and that there were houses on either side of the building, on each corner of the block.

She recalled that on the night of the incident she was awakened by a noise in the living room. When she got up to see what it was, she saw someone coming through the window of the living room. She immediately screamed, and a man withdrew his leg from the window, shined a flashlight in her face, and told her not to scream or he would burn the house down.

She continued screaming, and, when she told the man she was going to call the police, he answered: ". . . no, you don't have a phone." At that point she inquired how he knew that, and he responded: "He had waited for me the night before, but I had stayed out too late." The victim recalled that, on the previous night, she had noticed that someone had tampered with the door to her apartment.

During the interval that she was talking to the man, he screamed obscenities relating to oral sex. Once she was dressed, she attempted to leave, but he was at the door blocking her exit. She told him to get away from the door but he answered: "There is not but one way out and one way in and I'm going to get what I came for."

She then went to the window and began talking with the man on the ground below. She, at first, refused his request to come outside, but, after realizing that no one could hear her screams, told him she would do so if he would not hurt her. She went to the front porch, and, at his request, sat with her back to him. At that time the man removed what appeared to be "sock-like military gloves," and proceeded to undo her jeans. He told her he was not going to hurt her, but that he "was going to get what he came for." She testified that, at this point, she "talked real ugly" to him and told that he was disgusting. He then said he had made a mistake, that he had the wrong person and would let her go.

She left the porch and attempted to enter the building, but the door had locked. The man offered to get the door open and after the door was opened she went upstairs to get her car keys. When she came back he stated that he had changed his mind. He then instructed her to lie down on the porch and told her to cover her face with her arm. The man removed her jeans and performed cunnilingus upon her, and then had sexual intercourse with her against her will.

The victim testified that during this time she moved her arm and briefly saw the man "full face" and that she saw his face from the nose up for a period of three minutes. She claimed that she was able to see the man's features because the porch was well lighted by a nearby street light.

The victim positively identified the appellant as the man who raped her. She said he had told her that if she tried to go to the police, or if she tried to look at him, he would "hurt me."

I

Appellant argues that the trial court abused its discretion in denying the motion for a change of venue on the basis of pretrial publicity. He contends such publicity was so extensive and so damning that it violated his due process right to a fair and impartial trial.

At this time a recital of the evidence presented at the hearing on the motion for change of venue would be a mere repetition of the evidence reviewed in Speigner v. State, 367 So.2d 590 (Ala.Cr.App.1978). Although the date of the hearing was approximately three months after the above cited case, the witnesses and testimony presented by appellant were the same.

We adopt the conclusion and the reasoning of Speigner v. State, supra, that change of venue was not warranted.

Further, it is our judgment, based on the facts of the hearing in the present case and the reasoning of Speigner v. State, supra, that appellant did receive a fair and impartial trial at the hands of the jury in Houston County.

II

The appellant contends that it was error to allow into evidence the pretrial identification made by the victim at the police station. He argues that her in-court identification was compelled by identification of the appellant prior to his arrest. It is his position that the two identifications violated "his rights to due process under the Constitution of the United States and the State of Alabama." Further, he claims that, due to the victim's pretrial identification at the police station, she was predisposed to identify him a second time in court because she had done so earlier.

In our review of the record we can find nothing to indicate that any objection was made concerning the victim's pretrial identification of appellant. However, a motion to suppress identification evidence was made in a previous case involving the same appellant. Speigner v. State, supra. This motion was filed in June, 1977, which motion was subsequently denied. The motion does not appear to have been renewed for the purposes of the trial at bar. Due to the absence of a proper objection to the victim's identification evidence during trial of the present case, there is nothing for this court to review. However, because of the inclusion in the record, of the motion at the previous trial (p. 504), we have examined this insistence of error.

Under Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, appellant was not entitled to have counsel present during the pre-arrest identification procedure. Whether the identification testimony is admissible is determined by the procedure used in obtaining the identification and whether it was so impermissibly suggestive as to create a substantial risk of misidentification. Robinson v. State, 55 Ala.App. 658, 318 So.2d 354. In determining this issue we examined the totality of the circumstances surrounding the identification procedures. Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Under this "totality of circumstances" test, the factors to be considered in evaluating the likelihood of misidentification include; (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; and (4) the level of certainty demonstrated by the witness at the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850.

However, in determining the constitutional adequacy of the pretrial identification, along with the admissibility of the identification testimony, the central question is whether, under the totality of the circumstances test, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.

Further, where allegations are made that the due process standards were violated by an unfair pretrial confrontation, it becomes the burden of the prosecution to show by clear and convincing evidence that the in-court identification testimony had an independent source and did not stem from the alleged unfair pretrial confrontation. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

The record in this case indicates that the entire incident which concluded with the sexual assault, lasted approximately two hours. Further, that, during the time of the sexual assault, the victim saw her assailant "full-face", and that she viewed his face from the nose up for a period of approximately three minutes. Also, there was testimony which indicated that the porch where the sexual attack occurred was well lighted.

The victim testified that she had looked at photographs of suspects at the police station on the night of the assault and on later occasions. In all, she estimated that she had viewed a total of one hundred photographs on ten occasions prior to the time she identified appellant at the police station. She stated that at no time during the occasions on which she had viewed the photographs did she see the appellant's picture. Further, she had not identified anyone else as her assailant prior to her identification of appellant.

On the day the victim was shown a picture of the appellant by the police, she commented that it looked like her assailant, but that she was not positive and would have to see the man to be sure. According to her testimony, the police told her they had someone in custody they wanted her to see but they did not tell her it was the same man whose photo she had identified. She accompanied the police to a one-way mirror and saw the appellant in a room with a Lt. Stokes. She then asked to see the man's hands, and when she entered the room she overheard his voice.

The victim stated that, when she saw the man in person, "I recognized his face."

On cross-examination, she was asked if she had told any police officer about the "crooked little finger on the man's right hand." She responded, "I did tell them that it was something, that I would remember his hands if I saw them. And I did."

During the trial, counsel for appellant inquired...