Taylor v. State
Decision Date | 16 November 1971 |
Docket Number | No. 44064,44064 |
Parties | Leonard Glenn TAYLOR, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Robert Bruce Evans, Abilene, for appellant.
Ed Paynter, Dist. Atty., Lynn Ingalsbe, Asst. Dist. Atty., Abilene, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for robbery by firearms. After a verdict of guilty the punishment was assessed by the court at 25 years.
At the outset we are confronted with appellant's contention that the trial judge fundamentally erred in failing to declare a mistrial on his own motion because the in-court identification was so conducive to irreparable mistaken identification that he was denied due process when viewed in light of the totality of the circumstances.
This contention is raised only by supplemental brief filed in this court and can be considered only 'in the interest of justice.' See Article 40.09, Sec. 13, Vernon's Ann.C.C.P. We conclude, however, that the same requires review.
Harry Schneider, 23 year old college student, testified he left his place of employment, Colonial Food Store in Abilene, about 10:30 p.m. on December 23, 1969, after closing and locking the store. He was alone. While opening his car parked nearby and while standing under a bright yellow dock light of the store, a man appeared, placed a pistol to Schneider's temple and said, 'Get out of the light.' Two other men appeared from behind a trash receptacle and at gunpoint the three robbed Schneider of $40.00, his wallet, cigarette lighter, and other personal items. Before leaving the threesome bound and gagged Schneider. Upon freeing himself Schneider called the police, but a subsequent search of the area failed to reveal the three men. Schneider gave the police a description of the man who appeared under the light and stood about two feet away from him. He was unable to identify the other two. He was shown some photographs but was unable to make any identification. On December 26 and again on December 30, he was shown a display of photographs first by Officer Petty and then by Lt. Davis of the Abilene Police Department. On each occasion identified a photo of the appellant as the man who held the pistol to his head. The appellant was arrested on January 10, 1970.
It appears that at 9 a.m. on the morning of the trial (September 14, 1970) the complaining witness at a courtroom door and in company with the district attorney and appellant's counsel, viewed six or seven men seated on a courtroom bench 28 feet away. He identified one David Williams as the man who robbed him.
Thereafter on direct examination the complaining witness was asked:
'Q. Mr. Schneider, if you would look at the defendant in this case, Leonard Glenn Taylor. You may, at your request have him stand up, walk around, face you, turn with his back away from you, anything which you desire. If you would, please look at him. Take as much time as you need, and state to the jury whether or not he was the man that held the pistol on you.
'Q. This Leonard Glenn Taylor is the man that held the pistol on you and robbed you?
'A. Yes, sir.
'Q. Is there any doubt whatsoever in your mind?
Thereafter Schneider related he had twice identified the appellant from photographs shown his shortly after the alleged offense.
On cross-examination he acknowledged that he had earlier that day identified Williams as the robber. Appellant's counsel then had Williams stand beside the appellant and elicited from Schneider that the appellant's arms were longer, his hands bigger and that he was 4 inches taller than Williams, that his skin was lighter and there was a difference in the facial features of the two men.
It was then elicited from the complaining witness that after he had identified Williams the district attorney had informed him that he had identified the wrong man, and that the witness had gone and looked on his own.
On re-direct examination he explained that being seated Williams and the appellant appeared to be the same height, that some of the men, specifically the appellant, kept their heads bowed and looked in other directions during the viewing, that the appellant 'never did look me straight in the eye.' He related that the district attorney had told him only that he had not identified the man on trial, but did not suggest or point out the appellant to him. On both re-direct and cross-examination he reiterated his testimony that the appellant was his assailant. 1
Two officers also testified Schneider identified the appellant from photographs.
The appellant did not testify but offered alibi witnesses.
The court charged on the defense of alibi, and while the jury argument is not in the appellate record, we learned from an approved formal bill of exception that identification was vigorously argued to the jury. The verdict rejected the defensive theory.
The pretrial identification procedures did not taint the in-court identification and the appellant does not so claim. A pretrial photographic identification will be set aside only where the procedure utilized '(is) so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. The other pretrial identification was conducted in the presence of defense counsel and resulted in a misidentification which counsel interjected into the evidence and made an integral part of his trial strategy in support of his defensive theory of alibi.
It is well established that a witness has a right to view the accused and be positive in his identification. Rutherford v. State, 135 Tex.Cr.R. 530, 121 S.W.2d 342 (1938).
In Moore v. State, Tex.Cr.App., 424 S.W.2d 443, this court said:
Cf. Monroe v. State, 166 Tex.Cr.R. 306, 313 S.W.2d 610.
And it has been held proper During a trial to require the defendant to stand, put on a hat, remove his glasses or make a footprint for the purpose of identification. Gallaher v. State, 28 Tex.App. 247, 12 S.W. 1087 (Court of Appeals, 1889); Benson v. State, Tex.Cr.App., 69 S.W. 165 (1902); Rutherford v. State, supra; Walker v. State, 7 Tex.App. 245 (1870); 171 A.L.R. 1144 (1947); Texas Law of Evidence, McCormick and Ray, Vol. I, Sec. 431, pp. 361, 362. Cf. Turman v. State, 50 Tex.Cr.R. 7, 95 S.W. 533 (1906), overruled in Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632, 634 (1932). See Key v. State, 149 Tex.Civ.App. 200, 192 S.W.2d 563 (1946). Of course most of the questions of forcing the accused to aid in his identification have arisen in connection with acts taking place prior to trial and the subsequent testimony of a witness who conducted or observed the experiment, Texas Law of Evidence, supra. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Supreme Court said:
In light of Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706, there may be a question of the violation of self-incrimination privilege of the Texas Constitution. There the accused prior to trial was required to utter certain words allegedly spoken by the robber to give a witness present at the robbery scene further grounds upon...
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