Carroll v. State

1977 OK CR 246, 568 P.2d 324, 1977 Okla. Crim. App. LEXIS 588
CourtCourt of Criminal Appeals of Oklahoma
DecidedAugust 19, 1977
DocketNo. F-77-113
StatusPublished
Cited by1 cases

This text of 1977 OK CR 246 (Carroll v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll v. State, 1977 OK CR 246, 568 P.2d 324, 1977 Okla. Crim. App. LEXIS 588 (Okla. Ct. App. 1977).

Opinion

OPINION

BRETT, Judge:

Appellant, Gary Wayne Carroll, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court, Tulsa County Case Nos. CRF-76-968 and GRF-76-978, on two charges of Robbery With Firearms, in violation of 21 O.S. 1971, § 801. Defendant was sentenced, pursuant to said convictions, to serve five (6) years in the State penitentiary on each charge, said sentences to run concurrently. Each five year sentence was thereafter suspended. From said judgment and sentence defendant has perfected his timely appeal to this Court.

Defendant waived jury trial and was tried to the court. By stipulation, the testimony taken at the preliminary hearing was introduced as the evidence at trial.

The first witness to testify at that preliminary examination was Alma Faye Stanley, the victim of the charge numbered CRF-76-968. She testified that on December 3,1975, she arrived at Avis Rent-A-Car, her place of employment, at approximately 7:00 a. m. After parking her car in the north lot, she began to walk toward the building when a man stepped from behind a parked car and pointed a small black gun at her and demanded her purse. Startled, the witness raised her hands whereupon the subject grabbed her purse and ran away. The witness identified the defendant in court as the person who had pulled the gun on her and had stolen her purse.

On cross-examination, the witness described the clothing the subject was wearing at the time of the robbery, and also his general appearance. She related that after notifying the police she was questioned by Officer Curtis Hanks. The officer brought several photographs with him for her to examine. After going through several photos she chose one as being a picture of the subject in question. By this time, the witness had learned that another woman, Janet Tinker, also working at Avis, had been robbed that same morning in the same vicinity by a person whose description was almost identical to that given by the witness. Three to four days later the witness and Ms. Tinker were called to police headquarters to attend a lineup. At the lineup the witness positively identified one person as the man who robbed her. She later learned his name to be Hettick. The witness also later learned that Ms. Tinker had identified the same man in the lineup on the same day. However, at the preliminary hearing for Hettick, the witness determined that Hettick was not the correct person because, “he was too big.” She later identified the defendant.

[326]*326Janet Tinker, the victim in case No. CRF-76-973, was the next witness to testify for the State. She stated that on December 3,1975, at approximately 7:30 a. m., she was walking to Avis Rent-A-Car where she was employed, as she lived only a block away. She testified that a man ran up to her with a gun, demanding her purse. After grabbing her purse the suspect ran across the street and disappeared between two apartment houses. She also identified the defendant in court as the perpetrator of the robbery.

On the afternoon of the robbery she was questioned by Officer Hanks at police headquarters and identified a photograph of a man named Hettick as being the robber. The witness related that she was shown approximately ten different photographs at that time. She stated that Officer Hanks told her, after she identified him, that he was given the picture by another officer because Hettick’s brother was in jail, and he knew they v/ere trying to raise bond money. After speaking with Ms. Stanley, the other victim, following this identification, Ms. Tinker determined that they had picked out the same suspect. She also later identified the defendant. The witness was also asked to identify a gun and a jacket which appeared to be similar to that used in the robbery.

Following this testimony the State rested its case, and the defendant’s written motion to suppress the in court identification of the defendant by the two State’s witnesses was overruled. Defendant’s demurrer to the evidence, more properly termed a motion for directed verdict of acquittal, was also denied at that time.

The only witness to testify for the defense was Curtis Hanks, the investigating officer. His testimony was limited solely to his procedures involved in the investigation of the two robberies at issue here. These facts, for the sake of clarity, will be discussed in connection with the defendant’s assignment of error.

As defendant’s only assignment of error, he asserts that the trial court committed reversible error in failing to suppress his in court identification by the two victims. He contends that the pretrial identification procedures were so unnecessarily suggestive that the in court identification by the victims could not have had an independent source. This assertion by the defendant is well taken.

The United States Supreme Court has held that a pretrial identification procedure which is unnecessarily suggestive and conducive to irreparable mistaken identification may amount to a denial of due process, and thus necessitate suppression of the tainted identification testimony. See, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); and, Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). However, on this issue the Supreme Court stated, in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968):

“[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification. . . .” (Citations omitted)

In order to determine if the pretrial identification procedures were too suggestive the United States Supreme Court provided a test to apply termed, “the totality of the circumstances” test. Under this approach the pretrial identification procedures followed by police investigators violates due process only if there is a “very substantial likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The pretrial procedures, while possibly too suggestive, may not violate due process if there is sufficient indicia of reliability of the identification to show that it had an independent source, aside from pretrial showups or photographic identification. This “totality of the circumstances” test as opposed to the “per se” approach, see Neil v. Biggers, supra, at 409 U.S. 198-199, 93 S.Ct. 375, allows courts to [327]*327determine on a case by case basis the bona fides of each claimed denial of due process. The reasons for this approach were spelled out recently by the United States Supreme Court in the case of Manson v. Brathwaite, - U.S. -, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Mr. Justice Blackmun, speaking for the majority, observed that rules of exclusion, such as this test, guard against distortion of a witness’ recollection by police as well as providing a deterrent effect to unnecessarily suggestive procedures, whether such procedures are intentional or not.

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Related

Johnston v. State
1983 OK CR 172 (Court of Criminal Appeals of Oklahoma, 1983)

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Bluebook (online)
1977 OK CR 246, 568 P.2d 324, 1977 Okla. Crim. App. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-state-oklacrimapp-1977.