Coleman v. State

211 So. 2d 917, 44 Ala. App. 429, 1968 Ala. App. LEXIS 481

• Court: Alabama Court of Appeals
• Decided: April 23, 1968
• Docket: 6 Div. 316
• Status: Published

Opinions

JOHNSON, Judge.

Appellants were indicted by the Grand Jury of Jefferson County, Alabama, for the offense of assault with intent to murder. After pleading not guilty, appellants were tried jointly by a jury, found guilty as charged, and sentenced to a term of twenty years in the State penitentiary. Following denials of their motions for a new trial, this appeal is taken.

Casey Frank Reynolds testified for the State that at about 11:30 P.M. on July 24, 1966, he and his wife were travelling south on the Green Springs Highway when he had a flat tire and pulled off onto the shoulder of the road at the top of the hill to repair it. Reynolds testified that as he was changing the tire, he noticed three people on the median of the highway running toward him; that previous to this time he had observed a car parked on the opposite side of the road headed North; that as the three people ran toward him he was shot once; that the men ran up to within three or four feet of him; and that one of the men who he identified as appellant Coleman, put his hand on his (the witness’s) wife’s shoulder. Reynolds stated that after a few seconds he observed lights from an approaching vehicle and that appellants turned as if to leave; that appellant Stephens turned and “pointed his arm” at the witness and fired a shot,' after which all three ran back across the road to the-car which was parked there; ■ and that they left the scene in the car. Reynolds stated on cross-examination that he later was called and asked to come to the city jail where he identified appellants as the men who assaulted him.

Robert Steele testified that, he, the two appellants, and one John Hodge, were together on the night of July 24, 1966; that they had been to the Sandy Ridge Club in Oxmoor; and that as the four of- them were returning from the club appellant Stephens said, “We could catch a man walking the street and rob them,” and that he (Steele) “told him I didn’t think we had to do it.”

Steele further stated that “about middle-ways up the hill” on the Green Springs Highway, he began having car trouble and that he pulled the ■ car onto the shoulder of the road where he got out, lifted the hood, and tried to get the motor running again; that while he was under the hood he heard some shots behind him; that he came from under the hood and shouted, “I’m fixing to go;” that he saw the other three men, including the appellants, on the other side of the street; and that there was a car parked on the other side. He further stated that he saw a white man and lady; that he saw appellant Stephens make “one shot after the man;” that the three men ran back to the car and got in; and that he (the witness) drove away from the scene.

Detective Hart testified for the defense that he was present at a line-up on October 1, 1966, at which time Casey Reynolds identified appellants; that there were six men in the line-up; and that all six men were required to say the words, “Let’s take her in the woods”, or something to that effect. Hart further testified that prior to the men saying these words, Reynolds had identified both appellants as his assailants.

. Appellant Otis Stephens, testifying in his own behalf, said that he, John Hodge and Robert Steele were 'all together on the night of July 24, 1966; that. Steele had been “drinking or taking pills;” and that as Steele was driving the car on the Green Springs Highway at about the top of the hill he ran onto the shoulder and that Hodge had to slam on the brakes to keep the car from going down the shoulder.' He then testified that Steele, upon seeing a car parked on the other side of the road, said he was going to rob them. Appellant Stephens then testified in part as follows:

“A. * * * I told him I wasn’t going to have nothing to do with it, and me and him got to scuffling.

“Q. You and who?

"A. Me and Robert Steele, and John Hodge broke it up, and he pulled a pistol out and went over there.

“Q.' Who-did?

’“A. Robert Steele.

“Q. Who went with him?

“A. John Hodge.

“Q. All right.

“A. And during the while they were over there, I was thinking about leaving, waiting on them.

“Q. Were you going down the hill, or up the hill ?

“A. Down the hill.

“Q. All right.

“A. Towards town, and I got about two or three feet from the front end of the 'car and I heard a shot, and then I stopped and went over there, and about the time I got over there John Hodge was getting out of the car.

“Q. Getting out of what car?

“A. The woman’s and the man’s car.

“Q. All right.

“A. With a bag, and Robert Steele was standing over the man, with a pistol, and then he broke and run, and I met. them in the center of the street, and I turned around and came back. Robert Steele shot again and then he jumped in the car, and drove it down the highway.”

Stephens further stated that appellant Coleman was not with him on the night in question.

Appellant contends that the preliminary hearing of an accused in the State of Alabama is a stage of the criminal proceedings within the assistance of counsel guarantee of the Sixth Amendment.

In their respective briefs' appellants’ counsel state in part as follows:

“It is the firm opinion and position of the Appellant’s counsel that at any time after the investigative process has become accusatory and focalized upon the defendant that the defendant has without’ a doubt, guaranteed by the Constitution of the United States of America, the right to have counsel, either retained or appointed, present with him to protect those rights. * * * In fact, with effective cross-examination by competent counsel, the accused may very well be exonerated and thereby not even bound over to the Grand Jury. On the contrary, lack of effective cross-examination might well settle the accused’s fate and reduce the trial itself to a mere formality.”

The Supreme Court of the United States in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, held that a transcript of a witness’s testimony given at the preliminary hearing was inadmissible at the trial of the petitioner where the testimony “had not been taken at a time and under circumstances affording petitioner through counsel an adequate op^ portunity 'to cross-examine.” The Court further stated in part:

“Under this Court’s prior decisions, tile Sixth Amendment’s guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case.”

The Supreme Court declined to rule on the question as to whether or not the preliminary hearing was a critical stage of the proceedings requiring appointment of counsel. The court said in part:

“In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of' Gideon v. Wainwright, supra [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799]. In making that argument petitioner relies mainly on White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, in which this Court reversed a conviction based in part upon evidence that the defendant had pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that at a Texas preliminary hearing, such as is involved here, pleas of guilty or not guilty are not accepted and that the judge decides only whether the accused should be bound over to the grand jury and if so whether he should be admitted to bail. Because of these significant differences in the procedures of the respective States, we cannot say that the White case is necessarily controlling as to the right to counsel. Whether there might be other circumstances making this Texas preliminary hearing so critical to the defendant as to call for appointment of counsel at .that stage we need not decide on this record, and that question we reserve.”

We are of the opinion that the differences in the procedures of the respective States as stated in the Pointer opinion, supra, are also present in the case at bar.

The purpose of preliminary hearing in Alabama is to determine whether an offense has been committed and if so whether there is probable cause for charging the defendant therewith. If there is probable cause to believe that the defendant is guilty thereof, then it is also the duty of the magistrate to fix bail if it is a bailable offense. Code of Alabama, 1940, Tit. 15, Secs. 139-140.

Thus, the subject matter of the preliminary hearing is temporary restraint of the accused person’s liberty. Its purpose is not to convict; that is the trial court’s function. Nor is it to procure evidence for conviction; that is the prosecution’s duty. Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318.

In extending the Sixth Amendment right to counsel guarantee to arraignment proceedings, the Supreme Court of the United States in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, said in part, “What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted.” See also White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193.

At the preliminary hearing, however, the accused is not required to advance any defenses, and failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case. Also Pointer v. State of Texas, supra, bars the admission of testimony given at a pre-trial proceeding where the accused did not have the benefit of cross-examination by and through counsel. Thus, nothing occurring at the preliminary hearing in absence of counsel can substantially prejudice the rights of the accused on trial.

We are not persuaded, therefore, that there are circumstances making the preliminary hearing SO' critical as - to call for appointment of counsel. ■

Appellants also contend that their identification by Reynolds at the pre-trial lineup was so unnecessarily suggestive as to violate due process of law, and that it was thereby reversible error for the trial court to admit the in-court identification of the accused.

Appellants concede that the right to counsel at a pre-trial line-up is not applicable in this case. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. However, appellants argue that the record reveals the injured party, Casey Frank Reynolds, was totally unable to identify his assailants prior to the line-up. Appellants base their contention on the fact that Reynolds testified that he told police officers that he did not think he would be able to identify his assailants.

The fact that an injured party tells law enforcement officials that he does not think he could identify his assailants should not preclude his making a subsequent identification, nor should such fact affect its admissibility into evidence.

Testimony from the record reveals that the line-up was not “so unnecessarily suggestive and conducive to irreparable mistake in identification that appellants were denied due process of law.”

Reynolds testified in part as follows:

“Q. Have you been over to a line-up to observe these two defendants on any other dates, or any occasion, than the one time?

“A. No, sir.

“Q. Have you ever been inside any line-up room in any city jail at any time before that?

“A. No, sir.

“Q. That is the only time?

“A. Yes, sir.

“Q. Now, have you seen either Otis Stephens, or John Henry Coleman, handcuffed any time prior to then?

“A. No, sir.

“Q. Have you seen them behind any bars ?

“A. No, sir.

“Q. Have you seen them in'the hall of the City Jail, or anywhere' else- in ■custody ?

“A. No, sir. ■ .

“Q. Had any detective said anything to you about either of these two defendants, that is, John Henry Coleman and Otis Stephens, about their identification, or suggest who they 'might be, before you went into the line-up room or any time?

“A. No, sir.”

The preceding testimony indicates no improper suggestion by law enforcement officers in the witness’s identification of appellants.

Testimony was also received to the effect that while the line-up was being conducted, appellants were required to say the words, “Get in the woods,” or words to that effect. The Fifth Amendment privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * * ” Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908.

In Wade v. United States, 358 F.2d 557 (5 Cir. 1966), the United States Court of Appeals stated in part as follows:

“* * * [E]ach of the persons in the lineup was required to repeat words something like, Tut the money in the bag’ in order that the witnesses could hear similar words to compare with their recollection of the sound of the voice of the person who gave them such instructions at the time of the robbery.”

On certiorari to the S.Ct. of the U. S., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Supreme Court stated in part as follows:

“* * * [Compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not, compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. * * * We recognized that ‘both federal and state courts have usually held that * * * [the privilege] offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ Id., at 764, 86 S.Ct. at 1832. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.”

Compelling appellants to say the words spoken at the time of the assault in question for the purpose of identification was not compulsion to utter statements of a testimonial nature; they were required to use their voices as identifying physical characteristics, not to speak their guilt.

We are of the opinion that the lineup was properly conducted and that the appellants were not required to do or say anything that would incriminate them as a violation of their Fifth Amendment rights.

We conclude, therefore, that there was sufficient evidence bearing on the identity of the assailants from which the jury might find that appellants were the assaulting parties. Gray v. State, 38 Ala.App. 508, 88 So.2d 798.

Having made a diligent search of the record and finding no error therein, we are of the opinion that the judgment in this cause is due to be and the same is hereby

Affirmed.