Thomas v. State

• Decision Date: 26 May 1981
• Docket Number: 6 Div. 186
• Citation: 399 So.2d 915
• Parties: Steve Dewayne THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 915

399 So.2d 915

Steve Dewayne THOMAS v. STATE.

6 Div. 186.

Court of Criminal Appeals of Alabama.

May 26, 1981.

William N. Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was convicted of robbery and the court sentenced him to fifteen years in the penitentiary. He was represented by retained counsel during the trial proceedings and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal. Appellant was then found to be indigent and trial counsel was appointed to represent him on appeal. He is in this court with a free transcript.

Appellant did not testify in his behalf but offered some testimony in the nature of an alibi.

The evidence adduced by the state tended to show that, in the early morning hours of August 24, 1978, at approximately 2:15, two black men robbed Shoney's Restaurant located on Parkway East across from Roebuck Shopping Center in Birmingham, Jefferson County, Alabama. Mr. Alfred W. Adair was the night manager and Mr. Lee Drew was the busboy and dishwasher. These two employees closed the restaurant as 12 o'clock midnight on August 23, 1978, and remained on the premises until 2:15 a m. getting things in order to open the restaurant the next day. They picked up paper and other debris from the parking lot and went behind the building to a Dempster Dumpster to dispose of the waste. While at the dumpster they were suddenly confronted by the black men and were forced at gunpoint to re-open the restaurant and all four men entered. The man with the gun had a lady's sheer stocking over his face and the other man was also masked.

After the office lights were turned on, the men walked to the office where Mr. Adair was forced at gunpoint to open the safe. The two bandits removed from the safe approximately two thousand dollars. They then ordered Mr. Adair and Mr. Drew to lie on the floor where they tied them up with tape and told them to remain on the floor while they departed from the premises. Mr. Adair and Mr. Drew managed to remove the tape from their hands and feet. Mr. Adair then called the manager of the restaurant and the Police Department. When the officers arrived they were given a description of the robbers.

On October 17, 1978, during a lineup conducted by Sergeant J. C. Ferrell at the City of Birmingham Police Department, appellant was identified by Mr. Adair as one of the men who took part in the robbery.

In an independent lineup on October, 18, 1978, Mr. Lee Drew also identified appellant from a lineup which was also conducted by Sergeant J. C. Ferrell. This lineup was composed of different members with the exception of appellant.

The appellant was also identified by both witnesses in court. Appellant's counsel timely objected, moved to exclude, and at the close of the trial moved for a new trial. Additionally, the out-of-court identification of appellant was brought out by the prosecutor at the trial during rebuttal. Trial counsel timely objected to this also, preserving both of these issues for review on appeal.

There is very little direct evidence to indicate that the lineup was suggestive of the appellant. Both witnesses were told they were to view a lineup in which the man who robbed them may or may not be present. It is natural for persons called to view a lineup to understand that the suspect is in the lineup, and the fact that they are told does not contaminate the lineup. Fletcher v. State, Ala.Cr.App., 337 So.2d 58.

In addition to informing Lee Drew of the lineup, Sergeant Ferrell testified that he told Lee Drew the following:

"I told him that there were six people in the lineup room, and that the person that robbed him may, or may not, be in there, but for him to observe them, that they may have changed their facial features, that they may have had haircuts and may have shaved, and don't go by their hair, just to look at their facial features to identify them."

At the time of the lineup Lee Drew was seventeen years old. He had never viewed a lineup before. It is expected that a police officer conducting a lineup would give general instructions to an inexperienced viewer of lineups. General instructions that do not suggest a suspect to a witness or single out any particular member of the lineup or eliminate any individuals from consideration do not invalidate the lineup proceeding. Where the instructions, however, pertain directly to the defendant it is improper. In the case at bar the police officer's comments related to appellant. His comments, however, were general and not overly suggestive toward appellant. The officer in this case was merely stating the obvious and there does not appear to be a deliberate effort to influence the result of the lineup. Additionally, there is testimony on voir dire from Lee Drew that the identification could be made on the basis of facial features.

Mr. Adair testified that he recognized two of the members of the six man lineup from the fifteen yeas he worked as a warden for the jail. He was not, however, overly familiar with the two men and did not even know their names. There is no evidence that there was a deliberate attempt to place someone Mr. Adair knew in the lineup. When it is assumed one could eliminate the two who were recognized from being chosen by the witness, there remained four members of the lineup to choose from and also the choice between choosing or not choosing anyone. The fact that two members of the lineup were recognized does not in and of itself contaminate the lineup procedure. Young v. State, Ala.Cr.App., 346 So.2d 509.

The lineup viewed by Mr. Adair was composed of six black males, wearing white coveralls, ranging in height from five feet ten inches to six feet one inch. Their weights ranged from one hundred forty pounds to one hundred seventy-five pounds. On the lineup sheet no other distinguishing characteristics were noted. Mr. Adair did, however, testify that the lineup viewed by him contained about three men with beards.

The lineup viewed by Mr. Lee Drew was also composed of six black males dressed in white coveralls. There were three men six feet in height, two men five feet ten inches, and one man five feet eight inches in height. Their weights ranged from one hundred thirty-eight to one hundred seventy-five pounds.

Nothing about the composition of either lineup would suggest appellant to the viewers of that lineup. Each lineup was composed of men of the same race as appellant and contained persons of similar height and weight. All members of the lineup were dressed alike, and in the lineup in which appellant had a beard there were approximately three other members with beards.

Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Williamson v. State, Ala.Cr.App., 384 So.2d 1224. In assessing the reliability of the identification the effect of suggestiveness in the pre-trial identification must be weighed against the indicators of the ability of a witness to make an accurate identification. These indicators include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, supra. The totality of the factors mentioned above and the suggestiveness of the pretrial identification must be weighed against one another to determine the admissibility of the identification. Manson v. Brathwaite, supra.

The evidence of the lineup procedure taken as a whole does not show that a highly suggestive procedure was used. The composition of both lineups was fair and did not call attention to appellant. The instruction given to the witnesses that appellant may or may not be in the lineup was not overly suggestive. Fletcher v. State, Ala.Cr.App., 337 So.2d 58. Although it might have related to appellant's appearance, the instructions by Sergeant Ferrell to Lee Drew concerning the way hair and beards may change appearances was merely stating the obvious. Also, Lee Drew described in detail the suspect's facial features. Under the circumstances these instructions did not influence the outcome of the lineup. Likewise, Mr. Adair's recognition of the suspects in the six man lineup did not invalidate the lineup identification. Young v. State, Ala.Cr.App., 346 So.2d 509. Additionally, there was some testimony that prior to Lee Drew's viewing the lineup Mr. Adair might have told him he had chosen someone from the lineup. This, also, is not suggestive of appellant.

Against the evidence of suggestiveness, however, must be weighed the indicators of the ability of the witness to make an accurate identification. Manson v Brathwaite, supra.

One of the most important factors in assessing the ability of a witness to accurately identify a suspect is the opportunity of the witness to view the person at the time of the crime. In the case at bar, the entire robbery took place over a period of approximately fifteen to twenty minutes. Both witnesses had told the police prior to the identification that they could identify the person with the gun.

Mr. Adair testified on voir dire that, when he first saw the two men in the back of Shoney's Restaurant, they were eight to ten feet away. He further stated that the lighting outside was too dim for him to recognize either of the two robbers.

The evidence further shows that the two men walked with Mr. Adair and Mr. Drew back into the restaurant with the man identified later as appellant behind Mr. Adair followed by Mr. Drew with the other man behind him. Mr. Adair testified that, after entering the...