Williamson v. State, 6 Div. 57

• Decision Date: 17 June 1980
• Docket Number: 6 Div. 57
• Parties: Gary Anthony WILLIAMSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1224

384 So.2d 1224

Gary Anthony WILLIAMSON v. STATE.

6 Div. 57.

Court of Criminal Appeals of Alabama.

June 17, 1980.

Belle H. Stoddard, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant, a fifteen year old, was by the Family Court of Jefferson County found to be a delinquent child who cannot be made to lead a correct life, and cannot be properly disciplined under the provisions of Section 12-15-34, Code of Alabama 1975. He was therefrom transferred to the jurisdiction of the Circuit Court to be tried as an adult for armed robbery. He was indicted for robbery and counsel was appointed to represent him. At arraignment, in the presence of appointed counsel, he pleaded not guilty. He was subsequently convicted of robbery and the trial court sentenced him to ten years imprisonment in the penitentiary. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on this appeal.

Albert Ray was employed by Hendon Parking Company on October 13, 1978, and was in the main office located at 2091/2 Twenty-First Street, North, Birmingham, Alabama. He was employed as a "lot audit" to collect the daily proceeds from forty-two parking lots run by the company. The attendant at each lot would take the daily receipts to Mr. Ray's office at the close of business each day. On October 13, 1978, all lot attendants had checked in with Mr. Ray except one and he was sitting in the office awaiting the arrival of the last lot attendant. The door to the office could not be opened from the outside. Mr. Ray saw a man approach the door and thought he was the last lot attendant coming to check in. It was dark outside and Mr. Ray could not see the man well enough to recognize him. He opened the door and was immediately grabbed from the rear by a man wearing a cap. Another man immediately entered the office with a gun and told Mr. Ray to "lay down, lay down, I don't want to hurt you." Mr. Ray complied with this command. The office was well lighted and while Mr. Ray was on the floor the man held the gun about one foot from his head and he got a good clear view of the gunman's face from ten to twenty seconds. The gunman was wearing a toboggan type cap and he described the gun as chrome plated and it looked like a .32 caliber pistol. While Mr. Ray was held captive the first intruder took approximately $818.00 from the desk drawer and placed the money in a night deposit bag. Then both bandits quickly departed.

After the robbers left the office Mr. Ray called the Police Department and two uniformed officers soon responded to the call. Shortly thereafter a technician from the fingerprint division arrived but no latent fingerprints were lifted. Mr. Ray stated the robbers did not touch anything in removing the money from the drawer.

Mr. Ray made a positive in-court identification of appellant as the robber who held the pistol at his head in a well lighted place without a disguise of any kind during the robbery. He stated that he next saw appellant about a week later in the county jail.

On cross-examination Mr. Ray did not waver in his identification of appellant as the gunman. He estimated that appellant was about five feet eight inches tall and weighed between 140 and 150 pounds. He denied testifying at the preliminary hearing that the gunman weighed 160 pounds. He admitted stating at the preliminary trial that the gunman had dark eyes, "like all colored people."

Sergeant Paul Hurst stated he is a robbery investigator with the Birmingham Police Department and was assigned to investigate this robbery. He first contacted Mr. Ray on October 16, 1978. His next contacts with Mr. Ray were on November 2 and November 8, 1978. Officer Hurst testified that he did not have a report, or any reports or records relative to any investigation by an evidence technician. He was about to testify that later he and Mr. Ray went to the county jail but the trial judge interrupted him and stated he could not go into what transpired at the county jail at this time.

Thereupon the State rested subject to recalling Sergeant Hurst. At this point appellant moved to exclude the State's evidence and asked for a directed verdict of not guilty. The motion was overruled and the defense proceeded with its case.

Mr. Robert A. Jones, Jr., an attorney, was called as a witness for the defense. He represented appellant at the preliminary hearing at which time he questioned Mr. Ray. He stated Mr. Ray testified at this hearing that the gunman's eyes were dark like all colored people's and that the gunman weighed about 160 pounds. He said appellant's eyes were "sort of lightish green in color, greenish brown, with a light colored greenish."

On cross-examination Mr. Jones was asked to leave the witness stand and describe appellant's eyes from a closer vantage point. Mr. Jones left the stand and got a closer look at appellant's eyes and said his eyes were greenish brown in color.

Appellant testified in his own behalf and stated he lives with his mother at 2702 Twentieth Avenue, North. He said he was at home on the evening of October 13, 1978. He denied going to the Hendon Parking Company's office or the adjacent car lot. He also denied participating in the robbery of Mr. Albert Ray.

On cross-examination appellant stated that he was at home with his mother all day on October 13, 1978. He said he was not ill that day and no one other than his mother saw him at home on that day. He was unable to give his height but stated he weighed 120 pounds. He further testified that he did not know where he was on October 14, or 15, 1978, but that on October 28 he was sure he was in the county jail.

On rebuttal the State recalled the robbery victim who testified that Sergeant Hurst showed him four or five photographs at their first meeting at the City Hall and asked him if he recognized anyone in those photographs and he stated:

"I told Sergeant Hurst that the man looked familiar but I wasn't going to identify him by the picture, that I wanted to see him in a lineup."

Mr. Ray further stated that he now knew that it was Anthony Williamson's photograph that looked familiar.

Four or five days after viewing the photographs Mr. Ray attended a lineup of five black males and without the slightest hesitation he identified appellant as the robber who held the pistol at his head during the robbery. He denied that the police officer directed his attention to the photograph of appellant in any manner and stated that he did not look at the background of the photographs. He was looking at the faces and trying to identify the face.

Sergeant Hurst testified on recall that he showed Mr. Ray five photographs on November 2, 1978, at the City Hall and told him:

". . . that I had five photographs that I wanted him to look at, that the person that robbed him may, or may not, be in there, but I wanted him to look and if he was, I wanted him to throw the picture aside."

Sergeant Hurst was requested to produce the five photographs which were shown the robbery victim and they were produced and marked as State's Exhibits A, B, C, D, and E for identification. The defense requested that they be permitted to voir dire Sergeant Hurst out of the presence of the jury and the request was granted.

On voir dire Sergeant Hurst testified that when he showed the robbery victim the five photographs he did not have any particular suspect in mind and that he did not have any particular reason for including appellant's photograph in the photographic array as he was not a suspect at that time.

Appellant moved to exclude all the photographs from the evidence on the ground that the complexions of the individuals, other than appellant's, were either lighter or darker than appellant's complexion and this tended to single out appellant. He also contended that certain marks in the background of the photographs constituted a height chart which also tended to single out appellant. This motion was overruled.

Sergeant Hurst further testified that appellant was the only individual to appear in both the photographic array and the lineup. The lineup was composed of six individuals. At the time of the lineup appellant was not a suspect and had not been charged with this robbery and was not represented by counsel at the lineup. He admitted that he knew appellant was fifteen years of age at the time of the lineup.

While still on voir dire Sergeant Hurst stated that he conducted the lineup but did not know who arranged the details of it. He said he called the county jail and spoke to a Sergeant and requested that a lineup be arranged. When he and the robbery victim arrived to view the lineup they viewed the participants through a cardboard screen. Six young black males were placed in the lineup. The names, ages, heights and weights as related by each participant were: Gary Anthony Williamson, 15, 5 feet 6 inches, and 100 pounds; Vincent Woodard, 14, 6 feet, and 154 pounds; Lorenzo Miller, 14, 5 feet 6 inches, and 133 pounds; William Lathen, 16, 5 feet 7 inches, and 130 pounds; Theodus Emerson, 15, 5 feet 6 inches, and 100 pounds; and Donald Williams, 19, 5 feet 5 inches, and 110 pounds. Appellant's skin is medium brown in color and the others were various shades of brown and black. The lineup participants stood in the hallway about 10 or 15 feet from Sergeant Hurst and Mr. Ray. There was no special lighting in the hallway. No height charts were placed behind those in the lineup and each person was bareheaded. Each was dressed in blue jeans and denim shirts.

Sergeant Hurst said to Mr. Ray prior to the lineup:

". . . that the person that robbed him, may or may not be in the lineup, that I wanted him to take a good look and take his time, and if he saw the guy in there to tell me where he was standing which he did."

After viewing the lineup Mr. Ray pointed to appellant and...