Stout v. State

• Decision Date: 10 May 1988
• Docket Number: 3 Div. 604
• Citation: 547 So.2d 894
• Parties: Cecil Ray STOUT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 894

547 So.2d 894

Cecil Ray STOUT v. STATE.

3 Div. 604.

Court of Criminal Appeals of Alabama.

May 10, 1988.

Rehearing Denied June 28, 1988.

Thomas M. Goggans and Raymond E. Johnson, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Cecil Ray Stout, was convicted of theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama 1975, and was sentenced to life imprisonment as a habitual offender. Thirteen issues are raised on appeal.

The evidence presented by the State tended to show that on Tuesday, November 26, 1985, Montgomery resident Mrs. Ethel Covington was telephoned by a man who purported to be a bank examiner or law enforcement official of some sort. Mrs. Covington later identified the appellant as that man. Appellant questioned Mrs. Covington regarding her financial affairs, and then told her he was investigating Union Bank, which was her bank. Mrs. Covington, an 84-year-old widow, became very concerned about the safety of her money. The appellant told Mrs. Covington he would look into her affairs at the bank and call her back. The next day Mrs. Covington received several phone calls from the appellant. He told her that he had found the problem--a dishonest teller. The appellant then asked Mrs. Covington to assist him in apprehending the dishonest teller. Mrs. Covington readily agreed. As per appellant's instructions, she went to the bank late that afternoon and cashed a personal check for $11,000. Mrs. Covington obtained $5,000 in cash and the balance in a negotiable cashier's check, and returned home with her money. The next day was Thanksgiving and she was out of town celebrating the holiday with family and friends, and, thus, unavailable to the appellant. Back in Montgomery on Friday morning, Mrs. Covington was again contacted by appellant. Around 11:00 a.m., the appellant came to Mrs. Covington's home. He was wearing a suit and had a badge attached to the pocket of his suit jacket. She gave him an envelope containing the $5,000 in cash. They arranged to meet in her bank's parking lot approximately a half hour later, where she gave him the balance of the $11,000. According to the plan, the appellant was to go inside, deposit the money, then apprehend the dishonest teller. He would then return outside and give Mrs. Covington verification of her deposit. Mrs. Covington never saw her $11,000 again. She next saw appellant on the day of his trial.

I

Appellant first contends that the trial court erred by conducting the suppression hearing in his absence.

Our examination of the applicable law convinces us that the court did not err in conducting the suppression hearing in the appellant's absence. In Maund v. State, 361 So.2d 1144 (Ala.Cr.App.1978), the appellant contended that a pre-trial hearing without his presence constituted reversible error. This court rejected that contention, stating: "Pre-trial motions hearings are not viewed as a critical stage of trial, and the defendant does not have a right to be present." Id., 361 So.2d at 1148. The same determination was made in Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678 (Ala.), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976), wherein we quoted 23 C.J.S. Criminal Law § 974 (1961), in pertinent part as follows:

" 'The trial does not embrace every procedural and administrative step and judicial examination of every issue of fact and law during the trial, and accused's presence is not necessary during proceedings which are no part of the trial, such as preliminary or formal proceedings or motions which do not affect his guilt or innocence....

" 'It has been held that accused's presence is not necessary at the hearing and determination of a demurrer to the indictment or information, of a motion to quash the same, of a plea in abatement, or of a motion for leave to file an information, or to summon witnesses, or to amend the information ... or of other motions.

" '... Thus, the exclusion of accused during conferences of court and counsel on questions of law, at the bench or in chambers, has been considered not to constitute a denial of the right of accused to be present at every stage of the trial....' (Footnotes omitted.)"

Id., 335 So.2d at 671-72. The court did not err in this respect.

II

Appellant next contends that the trial court erred in failing to suppress the victim's identification of him as the perpetrator of the crime because her identification was the product of an impermissibly suggestive pretrial photographic lineup.

This court has previously held that pretrial identifications are to be set aside on grounds of prejudice only if the pretrial identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Scott v. State, 479 So.2d 1343, 1347 (Ala.Cr.App.1985). It is only when the pretrial procedures used are unnecessarily or impermissibly suggestive that the totality of the circumstances surrounding the out-of-court identification need be analyzed. Coleman v. State, 487 So.2d 1380, 1388 (Ala.Cr.App.1986). After examining the record, we find that the complained of out-of-court identification of the appellant by Mrs. Covington was not unnecessarily or impermissibly suggestive and, thus, did not give rise to a substantial likelihood of misidentification. Mrs. Covington picked a photograph of appellant from a photographic spread prepared by the Montgomery Police Department. No one identified the photograph of appellant to Mrs. Covington prior to the identification. Neither did anyone tell her that the photographic spread contained a photograph of the appellant. She was simply shown the photographic spread and asked if she saw the person who came to her home and took $11,000 from her. Mrs. Covington selected appellant's photograph. There is no evidence of suggestiveness in this procedure. The fact that witnesses are shown photographs does not establish suggestiveness. Matthews v. State, 401 So.2d 241, 246 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981).

When an in-court identification of the accused is shown to have a basis independent of any pretrial identification, then it is correctly received into evidence. Coleman v. State, supra, 487 So.2d at 1388; Jackson v. State, 414 So.2d 1014, 1018 (Ala.Cr.App.1982); Matthews v. State, supra, 401 So.2d at 246. Mrs. Covington's in-court identification was correctly admitted into evidence, because it was based on a source independent of the photographic spread. She testified that her in-court identification of Stout was based on her observation of him at her home and later in the parking lot of the bank. Moreover, Mrs. Covington said that, based on her conversations with appellant in person, he was the same man who telephoned her and purported to be from her bank.

We conclude, therefore, that there is nothing in the record pertaining to the pretrial identification of appellant which was impermissibly suggestive. There was no substantial likelihood of misidentification to taint the in-court identification of Stout by Mrs. Covington. We find in the record an independent basis for the in-court identification of the appellant by Mrs. Covington. Thus, the trial court correctly denied appellant's motion to suppress.

III

Appellant further contends that the trial court erred in denying his motion to re-open the suppression hearing. Since, however, appellant has failed to cite any authority whatsoever in support of this contention, this issue has been waived for purposes of appellate review. Vinzant v. State, 462 So.2d 1037, 1039 (Ala.Cr.App.1984). Furthermore, a decision to reopen a suppression hearing should be left to the discretion of the trial court.

IV

Appellant next contends that the trial court erred in denying his motion for a new trial on the ground of newly discovered evidence. Specifically, he contends that his co-defendant's subsequent guilty plea and statement that he picked up part of the money from the victim warranted the granting of a new trial. The victim had testified that she dealt with only one person. In fact, the co-defendant was called to testify at appellant's trial, and he invoked his Fifth Amendment privilege against self-incrimination.

To establish the right to a new trial on the ground of newly discovered evidence, a defendant must show that the evidence will probably change the result if a new trial is granted, that the evidence has been discovered since trial, that it could not have been discovered before trial by the exercise of due diligence, that the evidence is material to the issue, and, that it is not merely cumulative or impeaching. Isom v. State, 497 So.2d 208, 212 (Ala.Cr.App.1986); Perry v. State, 455 So.2d 999, 1003 (Ala.Cr.App.1984). Moreover, as this court stated in Robinson v. State, 389 So.2d 144, 149 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980).

"Although a new trial may be granted on grounds of newly discovered evidence which tends to prove that the crime for which the accused has been convicted was actually committed by another, the awarding of a new trial 'rests in the sound discretion of the trial court, and depends largely on the credibility of the new evidence.' Prince v. State, Ala.Cr.App., 356 So.2d 750, and the cases cited therein."

See also Perry, supra, 455 So.2d at 1003; Peterson v. State, 426 So.2d 494 (Ala.Cr.App.1982).

A motion for new trial should not be granted to call a witness who refused to testify in the original trial.

V

Two of appellant's thirteen issues raised on appeal address the trial court's denial of his motion for continuance. He argues that this constituted an abuse of discretion and resulted in a violation of his Sixth Amendment right to effective assistance of counsel because he was denied the opportunity to switch lawyers just before his trial began.

The facts in the instant case are...