Hartsfield v. State

1986 OK CR 115, 722 P.2d 717, 1986 Okla. Crim. App. LEXIS 307
CourtCourt of Criminal Appeals of Oklahoma
DecidedJuly 16, 1986
DocketF-84-505
StatusPublished
Cited by15 cases

This text of 1986 OK CR 115 (Hartsfield 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
Hartsfield v. State, 1986 OK CR 115, 722 P.2d 717, 1986 Okla. Crim. App. LEXIS 307 (Okla. Ct. App. 1986).

Opinions

OPINION

BUSSEY, Judge:

Daniel Ray Hartsfield was convicted of Robbery with a Firearm in Garfield County District Court and sentenced to five (5) years imprisonment, and he appeals.

On September 17, 1983, shortly after 10:00 a.m., while working as a sales clerk at Nickell Drug, Mrs. Dorthy Harkin was accosted at gunpoint by a man she identified in court as the appellant. The man instructed Mrs. Harkin to walk to the pharmacy while he followed her with the gun. Upon entering the pharmacy the man told Mrs. Harkin to lie down on the floor and ordered the pharmacist, Truman Park, to give him Quaaludes, Demerol and Perco-dan. After searching for the drugs, Mr. Park placed those that he found in a brown paper bag provided by the robber. The man then followed Harkin and Park to the cash register at the front of the store. He ordered them to give him the money from the register and Park placed the money in the man’s paper bag. The robber told Har-kin and Park to go back to the pharmacy, lie on the floor, and not call the police for five minutes or he would kill them.

At trial, Mr. Park also positively identified the appellant as the person who robbed the pharmacy. After the appellant had been advised of and waived his Miranda rights Officer Danahy and Detective West, of the Enid Police Department, advised the appellant that he had been identified in a photo lineup as the perpetrator of the robbery of Nickell Drug. The appellant denied any involvement in the crime. He instead contended that he had been at his sister and brother-in-law’s house on the morning in question. Officer West seized two brown bottles containing white tablets from the residence of Doug Hartsfield and his brother Dennis Hartsfield. At trial both the appellant’s brothers, Doug and Dennis Hartsfield, testified neither of them had seen the two bottles of drugs prior to the search and seizure of their residence. Dennis Hartsfield also testified that on the date the pharmacy was robbed, he had loaned his car to the appellant. The car keys given to the appellant also contained a key to the apartment where the drugs were found. At trial Frank Nickell, the regular pharmacist from Nickell Drug, testified that the bottles containing the drugs seized [719]*719from the Hartsfield apartment could have been the ones taken during the robbery of Nickell Drug.

In his first assignment of error, the appellant complains that his in-court identification by Dorthy Harkin and J.T. Park, was tainted by a pre-trial photographic display which was allegedly so impermissibly suggestive as to create a likelihood of irreparable misidentification. We do not agree.

The record reveals that Officer Randall of the Enid Police Department showed a picture lineup to Park a couple of days after the robbery. Officer West testified that he showed Park a color lineup and a black and white lineup of individual photos including one picture of the appellant and one of his brother Doug. Park picked out the photo of the appellant and positively identified him as being the man who robbed the pharmacy. Two officers of the Enid Police Department showed one photo lineup of individuals to Harkin, but she was unable to positively identify the appellant although she did say there was a real similarity between one of the photos and the robbery suspect. Harkin related at the preliminary hearing that all the individuals in the photo lineup had similar facial structures and were of the same age and race. Both Harkin and Park stated that at the time of the showing none of the officers suggested which if any of the photographs were of the suspected robber. We are of the opinion that the pretrial showing followed the guidelines recommended in Thompson v. State, 438 P.2d 287 (Okl.Cr.1968), and was not suggestive. Therefore, this assignment of error is without merit.

In his second assignment of error, the appellant claims that the trial court erred in not giving the jury a cautionary instruction regarding eyewitness testimony made by the victim. We disagree.

This Court has held in Pisano v. State, 636 P.2d 358, 361 (Okl.Cr.1981), that a cautionary instruction is not necessary under the following conditions: 1) the opportunity for a positive identification was present; 2) the witness is positive in his identification; 3) there was no prior failure to identify the defendant; and, 4) the witness remains positive as to the identification after cross-examination. The facts of this case clearly establish that all of the aforementioned conditions were present regarding the appellant’s identification by Truman Park. Park and Harkin testified that they had a good look at the defendant during the robbery, both testified that the suspect was white, wearing sunglasses, wearing a brimmed cap, had a moustache and was in his twenties. They were also positive at the preliminary hearing and at trial in the identification of the appellant as the robbery suspect. Although Mrs. Har-kin was unable to positively identify the appellant in the photo lineup prior to trial, we find no reversible error since her identification was merely cumulative. Schneider v. State, 538 P.2d 1088 (Okl.Cr.1975).

In his third assignment of error, the appellant claims the trial court erred in not allowing the appellant to modify the in-court identification procedures at trial. Prior to trial, the defense counsel made a request that the appellant sit in the gallery with the spectators during the in-court identification of the witnesses, and that another individual resembling the appellant sit at the defense table. The prosecutor objected to the appellant’s request. At the beginning of the trial, the trial court overruled the appellant’s request. In Miskovsky v. State ex rel Jones, 586 P.2d 1104, 1108, 1110 (Okl.Cr.1978), we held that the trial court’s responsiblity does not extend to determining whether defense counsel is attempting an unauthorized test of a witness’ ability to identify the defendant, and that a test such as the one requested in this case may be made at the discretion of the trial court. We also stated that the defense should not be prevented from testing the ability of a witness to identify a defendant when a true question of identity is presented. In view of the circumstances in this case, that the appellant was positively identified by a witness in a photo lineup in addition to matching the description given by both witnesses of the robbery suspect, [720]*720we conclude that there is no true question of identity. Accordingly, we find the appellant’s third assignment of error without merit.

In his fourth assignment of error the appellant contends that the prosecutor violated his Fifth Amendment Right to remain silent by eliciting repeated comments on the appellant’s exercise of his Miranda rights.

On direct examination of Detective Michael Danahy, the prosecutor established that the appellant had signed a Miranda waiver and indicated that he was not involved in the robbery. The following exchange then occurred:

THE COURT: Go ahead.
A. Prior to him saying that he wanted to talk to a lawyer, we had asked him when he shaved his moustache off, as the subject that had robbed the store had a moustache. He told me that — this was on a Monday, I believe. He told me it was last week sometime, like on a Wednesday. We then again advised him that we had probable cause and he refused to talk to us and said he wanted to speak to an attorney at that time.
Q. Okay.

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Thompson v. State
1988 OK CR 2 (Court of Criminal Appeals of Oklahoma, 1988)
Hartsfield v. State
1986 OK CR 115 (Court of Criminal Appeals of Oklahoma, 1986)

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Bluebook (online)
1986 OK CR 115, 722 P.2d 717, 1986 Okla. Crim. App. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartsfield-v-state-oklacrimapp-1986.