Weatherford v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: Weatherford v. State, 369 So.2d 863 (Ala. Crim. App. 1979)
• Decision Date: 20 February 1979
• Docket Number: 5 Div. 428
• Parties: Dennis Alphonso WEATHERFORD v. STATE.

Page 863

369 So.2d 863

Dennis Alphonso WEATHERFORD v. STATE.

5 Div. 428.

Court of Criminal Appeals of Alabama.

Feb. 20, 1979.

Rehearing Denied March 27, 1979.

Benjamin E. Pool, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was convicted for rape and sentenced to thirty years' imprisonment. Ten separate grounds for reversal of the conviction are asserted on appeal.

I

It was not error for the trial judge to excuse the police officer in charge of the investigation from a general order excluding witnesses from the courtroom. It is within the discretion of the trial judge to excuse some witnesses and not others from the operation of "the rule" of exclusion. That discretion has been upheld in the following cases involving the excusal of law enforcement officers. Webb v. State, 100 Ala. 47, 14 So. 865 (1894); Lewis v. State, 55 Ala.App. 140, 313 So.2d 566 (1975); James v. State, 52 Ala.App. 389, 293 So.2d 305 (1974); Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Browning v. State, 51 Ala.App. 632, 288 So.2d 170 (1974); Denson v. State, 50 Ala.App. 409, 279 So.2d 580 (1973); DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125 (1970); Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Ledbetter v. State, 34 Ala.App. 35, 36 So.2d 564, cert. denied, 251 Ala. 129, 36 So.2d 571 (1948); McKenzie v. State, 26 Ala.App. 295, 158 So. 773 (1935); Wright v. State, 1 Ala.App. 124, 55 So. 931 (1911). See also C. Gamble, McElroy's Alabama Evidence, § 286.01 (3rd ed. 1977).

While the discretion of the trial judge is not an arbitrary one and must not be abused, permitting one law enforcement officer to remain in court during the presentation of the evidence, notwithstanding the rule to exclude witnesses, is a common and usual practice.

At trial defense counsel gave no reason for his objection to the officer's presence in the courtroom. In the absence of any clear showing of the abuse of the discretion of the trial court and actual prejudice to the appellant we find no error.

II

Error is also predicated upon the in-court identification of the appellant by the prosecutrix.

The rape occurred between 10:30 and 12:00 on the night of August 10, 1977. At 8:00 the next morning the prosecutrix went to the Auburn Police Department, reported the offense and gave a description of her assailant. A detective then took her to a small room where she viewed the appellant through a "two way mirror". The appellant was in custody on another charge when the showup took place. The prosecutrix testified that she "insisted on seeing the person who was in jail", that she "immediately recognized" him and that she was never shown any photograph before the identification procedure.

This court has previously considered the "showup", its propriety, and its admissibility in evidence. Brazell v. State, Ala.Cr.App., 3 Div. 849, 369 So.2d 25 (Ms. June 20, 1978).

"Though the practice of showing a suspect singly to persons for purposes of identification, and not as part of a lineup, has been widely condemned, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the admission of evidence of a showup without more does not violate due process of law. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Annotation: Admissibility of Evidence of Showup Identification as Affected by Allegedly Suggestive Showup Procedures, 39 A.L.R.3d 791 (1971).

"Convinced of the dangers of eyewitness identification, the United States Supreme Court has established constitutional and procedural safeguards surrounding the use of such testimony. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson, supra; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

"Whether an out-of-court identification procedure has violated due process depends upon the 'totality of the circumstances'. Stovall, supra; Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Coleman, supra; Biggers, supra. This totality of the circumstances test is the standard in deciding whether an identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1973). Under this test the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal act at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Biggers, 93 S.Ct. 382; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850 (1969). Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

"In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson, supra. This determination involves the application of a two-pronged test.

"(T)he required inquiry is two-pronged. The first question is whether the initial identification procedure was 'unnecessarily' (Stovall ) or 'impermissibly' (Simmons) suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been 'unnecessarily' or 'impermissibly' suggestive was so 'conducive to irreparable mistaken identification' (Stovall ) or had such a tendency 'to give rise to a very substantial likelihood of irreparable misidentification' (Simmons ) that allowing the witness to make an in-court identification would be a denial of due process. United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir. 1970).

"Suggestiveness is inherent in the showup identification procedure. Wall, Eye-Witness Identification In Criminal Cases, p. 28. Nevertheless, prompt, on-the-scene confrontation may be consistent with good police work. Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623 (1973); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972); Robinson v. State, 55 Ala.App. 658, 318 So.2d 354 (1975). One-on-one confrontations conducted shortly after the commission of the crime may be justified for they allow the 'fresh' identification before memory has dimmed or the suspect has changed his clothing, the prompt release of innocent persons, and the continuation of the search for the perpetrator with a minimum of delay. Wall, p. 38. For these considerations to be effective, the on-the-scene identification must be prompt. Carter v. State, Ala.Cr.App., 340 So.2d 94, 98 (1976). ('Our consideration of Robinson, the supporting authorities cited therein, and other authorities on the subject, convinces us that most, if not all, of the applicable cases have involved periods of time of less than an hour between the crime and the confrontation.')"

"It is mere sophistry to argue that the showup was not unnecessarily suggestive. A showup by its inherent nature is suggestive because the witness is given no other choice. However it is permitted where conducted promptly after the commission of a crime or demanded by necessity, emergency or exigent circumstances."

"If, despite the violation of due process standards, the prosecution can establish by clear and convincing evidence that the in-court identification testimony, rather than stemming from the unfair pretrial confrontation, has an independent source, the in-court testimony need not be excluded. Wade, 87 S.Ct. 1939."

There is no contention that the showup was unnecessarily suggestive or tainted apart from that suggestiveness inherent in any showup procedure.

The testimony of the prosecutrix is clear and convincing that her in-court identification of the appellant was based on an independent source and did not stem from any unfair pretrial confrontation. When she saw her assailant standing near her bed she "recognized him immediately. He had been at my house February before." Though the prosecutrix gave the police a description of her assailant, the record contains no description or picture of the appellant and hence we cannot determine the degree to which the description given by the prosecutrix fit the appellant. However we note that on cross examination of the prosecutrix on this point defense counsel attempted to impeach her description only by showing that the appellant was "in the vicinity of six foot or six foot-one" with his shoes on while the victim described her assailant as approximately five foot eight inches with his shoes off. This discrepancy goes to the credibility of the victim's identification rather than its admissibility. The prosecutrix never waivered in her identification of the appellant.

There is simply no evidence that the showup tainted the victim's in-court identification. Liptroth v. State, 342 So.2d 959 (Ala.Cr.App.), cert. denied, 342 So.2d 961 (1977); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973). The appellant's argument that the one man showup identification procedure is a per se violation of due process is not supported by legal precedent. The argument that this particular procedure violated the appellant's constitutional rights is not supported by the facts.

III

The appellant asserts that it constituted "gross prosecutorial misconduct" and denied him his constitutional right to a public trial for the District Attorney to order a spectator not to return to the courtroom during the trial.

During the cross examination of the...