Sweatt v. Com.
| Decision Date | 01 April 1977 |
| Citation | 550 S.W.2d 520 |
| Parties | Lindsay Darrell SWEATT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Thomas E. Clay, Louisville, for appellant.
Robert F. Stephens, Atty. Gen., Sam E. Isaacs, II, Deedra Benthall-Nietzel, Asst. Attys. Gen., Frankfort, for appellee.
Lindsay Darrell Sweatt was convicted on a count of armed robbery, KRS 433.140, and sentenced to life imprisonment; on a count of malicious striking and wounding, KRS 435.170, and sentenced to twenty-one years' imprisonment; and on a count of robbery in the first degree, KRS 515.020(1)(b), and sentenced to twenty years' imprisonment. The sentences run concurrently. 1 Sweatt appeals. We affirm.
Fred Syers, owner and operator of a jewelry store, was beaten with a pistol and robbed on the morning of December 23, 1974. His testimony was that a man entered his store, and as he was going back to his desk in his walker, the man asked for a Longinnes watch then came toward him and began beating Syers on the head with a pistol. After the beating, Syers saw the man go behind the counter. The man demanded a sack. When Syers told him where to find a sack, the man began taking watches and other merchandise from the showcase. Syers saw the man take off his hat and wipe the glass showcase. After the man left, Syers called the police and was taken to the hospital where he remained for three weeks. The police followed a trail of jewelry to a nearby home occupied by an Ernest Gore. There in a bedroom they discovered the stolen merchandise and a pistol. Gore denied any participation in the robbery, told the police that Sweatt was a frequent visitor, that his front door did not lock securely. He identified the pistol as belonging to Sweatt. Gore was arrested. The police displayed a photograph of Gore to Syers who informed the police Gore was not the man who robbed and beat him. Gore established the fact that he was at work at the time the robbery was committed and was released.
On January 6, 1975, Sweatt was arrested and taken to the hospital where Syers identified him as the one who robbed and beat him. The police explanation for this one- man showup was that Syers could not leave the hospital and they did not know whether he was going to recover. Syers later made an identification from a photographic lineup and positively identified Sweatt at the trial. Sweatt moved to suppress the in-court identification for the reason that it was tainted by the one-man identification at the hospital. The trial court conducted a hearing and determined the in-court identification to be proper based on Syers independent recollection.
Syers identified the merchandise found in Gore's bedroom as the items taken in the robbery and stated that the pistol found with the merchandise "looked like the pistol" used by Sweatt to beat him. Syers described the pistol as being a 6-inch barrel, blue steel revolver, which was a description consistent with the revolver found in Gore's bedroom and identified by him as belonging to Sweatt.
On January 30, 1975, Bessie Kimble, an employee of the S & S Liquor Store, testified that a man came into the store, picked up some potato chips, asked for a soft drink, and when another customer left and she proceeded to the cash register and told him the cost of the purchases, the man pulled a pistol and told her to open the cash register. Kimble protested and stepped back. The man opened the cash register himself, took money from the cash register, and left the store. Kimble called the police and described the man and, being shown a series of photographs, pointed out a photograph of a Leonard Alexander with the remark, "It looks an awful lot like him." The police discovered that Alexander was in the penitentiary, and according to one of the officers testifying at the in-chambers hearing on a motion to suppress the identification of Sweatt, there had been previous mistaken identity incidents involving Alexander and Sweatt. With this background, the officers placed a photograph of Sweatt in a photographic lineup and submitted the lineup to Kimble. She immediately identified Sweatt as the robber, positively identified him at a subsequent lineup, and identified him at trial.
Sweatt had filed a motion for a bill of particulars, requesting in addition to other information "any exculpatory evidence in possession of the Commonwealth. The answer to this request was, "No exculpatory evidence is in possession of Commonwealth." Apparently the police officers had not informed the Commonwealth of Kimble's tentative identification of Alexander.
At the conclusion of the hearing on a motion to...
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