Alabama Supreme Court 85-290.
Appellant was convicted of the offenses of burglary in the third degree (two counts); theft of property in the second degree; and attempt to commit burglary in the second degree. Pursuant to the provisions of the Alabama Habitual Felony Offender Act, the appellant was sentenced to eleven years' imprisonment for each count, with each sentence to run concurrently. From said convictions and sentences, this appeal follows. For the reasons outlined below, the convictions and sentences are due to be affirmed.
On December 7, 1984, an attempted burglary took place at the apartment of Nancy Dreaden. Also on December 7, 1984, a burglary and theft took place at Blackburn's Garage. A third burglary of the apartment of Jerome Martin occurred during the same morning.
One of the victims, Nancy Dreaden, testified that she was asleep when she heard a noise in her kitchen around 1:00 a.m. on the morning of December 7, 1984. When she went into her kitchen, glass came flying from across the room. Ms. Dreaden testified that she saw a man, whom she later identified as the appellant, standing and looking in the broken kitchen door. The victim began to scream and the appellant ran away, but not before Ms. Dreaden had observed his face and chest area for several seconds. After the appellant fled, Ms. Dreaden reported the incident to the police and gave a description of the suspect. Around 4:00 a.m. the police returned to her apartment with a suspect matching the description Ms. Dreaden had given them. She identified the suspect as the man who was trying to get into her apartment through her kitchen window. Additionally, in court Ms. Dreaden positively identified the defendant as that suspect.
Another of the crimes which occurred the same morning occurred when someone broke into Blackburn's Garage and took money from one of the drink machines. Otis Haggard testified that he observed a long-haired man, wearing blue jeans and a plaid jacket, running from the garage on the morning in question. Haggard also stated that the person he saw was carrying a box.
The third victim was Jerome Martin, who testified that someone broke through the back door of his apartment on the morning of December 7, 1984. Martin testified that the unidentified person stole a scanner, three rings, some brass candlesticks, a tool box, and a claw hammer.
Several officers with the Florence Police Department testified that on the morning of December 7, 1984, they observed a man matching the description of the burglary suspect walking down the street. This suspect was later positively identified as the defendant. When the defendant saw the police officers, he attempted to hide behind some bushes, but was apprehended by the police. The police officers transported the appellant to Ms. Dreaden's apartment, where she identified him as the person she had observed through her kitchen window. Although the police officers detected the odor of alcohol on the appellant's breath, they testified that he did not appear to be
Prior to trial, a hearing on the appellant's motion to suppress was held. The first issue raised on appeal concerns the propriety of the trial court's denial of the motion to suppress certain statements made by the appellant at the time of his arrest. The second issue raised on appeal is: "whether the identification procedures utilized support the conviction of appellant."
Appellant argues that the trial court improperly denied his motion to suppress and, for this reason, committed reversible error. Appellant contends that any statements which he made at the time of his arrest should be inadmissible as evidence because he was "intoxicated and under the influence of alcohol and drugs to the extent that he was incompetent to voluntarily give a statement." At the hearing on the motion to suppress, the appellant testified that, during the evening of December 6, 1984, he: (1) drank a "half a pint of whiskey and three or four beers"; (2) took four "blue Valiums"; and (3) took at least one "green Placidyl." Cheryl Fields testified that she observed the appellant, on the night in question, drinking whiskey and also taking Valium and Placidyl. Cynthia Abernathy testified that the appellant took "about two or three" Placidyls and "at least eight to ten" Valiums on the night of December 6, 1984. Additionally, Abernathy testified that the appellant had been drinking whiskey and "several beers."
Police officers who observed the appellant testified that they detected the smell of alcohol on the appellant's breath and noted that the appellant "appeared" to have a "bad cold." One of the officers admitted that the appellant "mentioned" that he had taken some drugs, including Placidyl and Valium. Both officers, however, testified that the appellant did not appear to be intoxicated or "under the influence."
Several recent cases from this court have discussed this precise issue. In Baker v. State, 472 So.2d 700, 702 (Ala.Cr.App.1985), this court, per Judge Taylor, concluded that the appellant voluntarily made certain incriminating statements, notwithstanding the fact that he had been "drinking heavily, and was possibly drunk at the time he was questioned." In responding to Baker's argument that the statements should be suppressed, this court wrote the following:
In another recent opinion, this court, per Judge Tyson, upheld the admission of a statement into evidence which the appellant argued was involuntarily made. In Scanland v. State, 473 So.2d 1182 (Ala.Cr.App. 1985), the appellant argued that his intoxication at the time of questioning by the police rendered any statements he made involuntary. In rejecting this argument, this court stated the following general rule:
In another recent case, this court, per Judge Tyson, concluded that the appellant's statement was properly admitted into evidence notwithstanding his claim that he was "drunk" at the time he made the statement. Smith v. State, 466 So.2d 1026 (Ala. Cr.App.1985). In determining that the admission of the appellant's statement into evidence was proper, this court noted as follows:
In the present case, conflicting evidence was presented to the trier of fact for his consideration on the issue of whether the appellant's confession was voluntary. Of course, "[m]aking decisions based on disputed facts is an essential duty of trial judges." Sales v. State, 432 So.2d 560, 562 (Ala.Cr.App.1983). Where the trial judge determines, on conflicting evidence, that a confession has been voluntarily made, such a finding will not be disturbed on appeal unless it is found to be "papabably contrary to the weight of the evidence." Todd v. State, 472 So.2d 707, 714 (Ala.Cr.App. 1985); Harris v. State, 420 So.2d 812, 815 (Ala.Cr.App.1982). See also: Sumpter v. State, 480 So.2d 608 (Ala.Cr.App.1985); Myers v. State, 401 So.2d 288 (Ala.Cr.App. 1981); Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.), cert. denied, 339 So.2d 1070 (Ala.1976). Additionally, in the absence of "clear error", however, the trial court's "`credibility choices at suppression hearings are binding on this court.'" (Citations omitted.) Murphy v. State, 462 So.2d 761, 762 (Ala.Cr.App.1984), quoting United States v. Aldridge, 719 F.2d 368, 373 (11th Cir.1983).
Testimony presented at the hearing on the motion to suppress tended to prove that the appellant was coherent and the statements which were made were voluntary. Because there was no showing that the trial court abused its discretion when it allowed the statements to be entered into evidence, the decision of the trial court is upheld. Shorts v. State, 412 So.2d 830 (Ala.Cr.App.1981).
In his second issue, appellant argues that, under the authority of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), he was not properly identified by the victims as the perpetrator of the crime.
It is apparent from the testimony of Ms. Dreaden that she had ample opportunity to view the appellant and was "positive" that he was the person who had committed the crime. The following portions of the trial transcript support this conclusion: "Q [District Attorney]: All right. What did you do when you heard that noise?
In addition to the above testimony which was elicited on direct examination, Ms. Dreaden also testified on cross-examination that she was positive of her identification. In particular, she stated that she "got a full look at [the appellant's] face"; that she was able to "look right at his face"; and that she "recognized him for sure" when the police officers brought him to her home later in the morning. Ms. Dreaden also testified as follows on cross-examination:
Based on the above, it is apparent that there was positive proof of the appellant as the perpetrator of the crime by way of the in-court as well as the out-of-court identification of the appellant.
Appellant maintains, however, that he was subjected to an impermissibly suggestive pre-trial identification when the police officers returned him to Ms. Dreaden's apartment within a short period of time. In the recent case of Cooley v. State, 439 So.2d 193, 195 (Ala.Cr.App.1983), however, this court held that "the mere fact that the appellant was subjected to a one-man showup does not necessarily render that identification procedure impermissively suggestive." (Emphasis in original.) In reaching this conclusion, this court in Cooley reasoned as follows:
Here, under the "totality of the circumstances," it is apparent that the victim made an extremely reliable identification of the appellant as the person who had committed the crime.
Additionally, "it is settled law that prompt, on-the-scene confrontations are not constitutionally impermissible, but are consistent with good police work." (Citations omitted.) Hobbs v. State, 401 So.2d 276, 279 (Ala.Cr.App.1981). A prompt on-the-scene identification of a suspect increases the reliability of the identification under the following rationale:
Under the facts presented by Ms. Dreaden's testimony, all five of the Biggers factors were established. That is, Ms. Dreaden testified that she had the opportunity to observe the appellant at the time of the crime; that she was alert and observed the appellant; that she was subsequently able to describe the appellant; and that she was certain of the identity of the appellant when the police brought him to her later that evening. After considering these
Additionally, the witness positively identified the appellant in open court. This in-court identification would be proper under the following general rule:
No due process violation occurred as a result and the in-court identification of the appellant was not thereby tainted. Tate v. State, 417 So.2d 608, 609 (Ala.Cr.App.1982). See also; Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981).
Even the fact that the victim may have been "distraught" would not be dispositive of this issue. As this court, per the Honorable Leigh M. Clark, retired circuit judge, noted:
Thus, the identification was proper, and this issue is decided adversely to the appellant.
All the Judges concur.