Riley v. Commonwealth

620 S.W.2d 316, 1981 Ky. LEXIS 264
CourtKentucky Supreme Court
DecidedSeptember 1, 1981
StatusPublished
Cited by8 cases

This text of 620 S.W.2d 316 (Riley v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riley v. Commonwealth, 620 S.W.2d 316, 1981 Ky. LEXIS 264 (Ky. 1981).

Opinions

STERNBERG, Justice.

On April 9, 1979, the Grand Jury of McCracken County, Kentucky, returned a three-count indictment against movant for:

1. First-degree robbery, a Class B felony, in violation of KRS 515.-020(l)(b)(2);
2. Theft by unlawfully taking a Pontiac automobile having a value of over $100, a Class D felony, in violation of KRS 514.030(l)(a)(2); and
3. Theft by unlawfully taking a revolver having a value of over $100, a Class D felony, in violation of KRS 514.-030(l)(a)(2).

Movant pled not guilty to all counts. He and a co-indictee, Willie Holland, were tried together. After a three-day jury trial, movant was found guilty of first-degree robbery and sentenced to serve ten years’ imprisonment. He was also found guilty of the theft of a revolver and sentenced to serve ten months in jail. He was found not guilty of the theft of an automobile. On appeal to the Court of Appeals of Kentucky, the judgment of the trial court was affirmed. On March 3, 1981, this court granted review. 614 S.W.2d 538. We reverse.

There are two issues presented on this appeal, which are:

“I. The appellant was denied his due process right to a fair trial and his presumption of innocence by his forced participation in a prejudicial courtroom demonstration.
II. The trial court deprived appellant of due process of law by denying his motion to exclude any pre-trial or in-court identification evidence.”

The Mini-Mart grocery store in Paducah, Kentucky, was robbed shortly before midnight on January 16,1979. Mrs. Sue Roach Jeffords, the only clerk present on that occasion, described the incident. Two masked robbers entered the store as she was in the process of closing. One of the robbers announced that “This is a holdup.” The shorter of the two men had a dark-handled handgun stuck in the front part of his trousers; the taller man was flourishing a 38-caliber chrome-colored handgun and pointing it at her and at two customers whom he and the other robber had forced to lie down on the floor. The two robbers then went to the cash register where Mrs. Jeffords was standing and forced her to give them all of the money. The taller robber, standing close to the cashier, pointed the gun at her and demanded that she put the money in a sack, which she did. The smaller robber demanded that she pick up the drawer in the cash register; however, without waiting for her to do so, he picked it up, fumbled around, and then threw it down. The robbers ordered Mrs. Jeffords to face the wall. She did as ordered, and the robbers made their escape. Mrs. Jeffords, after waiting about thirty seconds, went to the door and locked it, then called the city police and reported the robbery. She described one of the robbers as being a young black male, approximately 5 feet 9 inches in height, slim of build, black curly hair, and wearing a black trench coat and a black silk scarf over his face as a mask. She described the other robber as being a black male, approximately 5 feet 10 inches in height, slim of build, black curly hair, and wearing a long dark blue coat and having a black silk scarf over his face as a mask. Within less than one hour after the robbery, movant and Willie Holland were apprehended by the police. Mrs. Jeffords was brought to police headquarters where she viewed movant and Holland in an identification lineup and searched through a mug-shot book for their pictures. She was not able to find any pictures of the robbers in the book, although a picture of each of them was in it. Also, she was unable to identify movant or Holland in the lineup, even though they were the only persons in the lineup. She again confronted movant at a preliminary hearing on February 13, 1979, but she was not able to connect mov-ant as the person in the lineup.

On the second day of the trial, the court, on motion of the Commonwealth’s Attorney and over vigorous objection of counsel for movant, required movant to put on the black silk scarf as a mask, take the 38-cali-[318]*318ber revolver in his hand, stand close to the cashier clerk, and make the same or similar statement that was said to her by the robber, after which the witness identified mov-ant as being in the store on the night of the robbery. The trial court, on motion of the Commonwealth’s Attorney and over objection of counsel for movant, ordered Holland to put on the black trench coat, the mask, and place the black handgun inside the front of his trousers, after which the witness identified Holland as being one of the robbers. At no time during the trial prior to this demonstration did the Commonwealth’s Attorney ask any witness to identify movant as one of the robbers.

Prior to commencing the trial, the court conducted an in-chambers hearing on mov-ant’s motion to suppress all of the pretrial evidence, which the court refused to do.

The United States Supreme Court, in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), laid down five factors which should be considered in evaluating identification, as follows: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.

In the application of factors 3,4, and 5, the pretrial eyeball identification is far from satisfactory. The initial attempt at lineup and mug-shot identification proved useless and of no avail to the Commonwealth, although there was less than one hour between the robbery and the attempted identification. The level of certainty was not such as to reliably tie movant to the robbery if we do not take into consideration other demonstrative incriminating evidence such as clothing that the robbers wore and its recovery in close proximity of the robbery, and movant’s possession of the weapon used in the robbery and its’ being found with the coat and scarf abandoned by the robber. Movant fits the general description of the larger of the two robbers. Movant and Holland were apprehended in a taxicab, and although the weather was cold, movant did not have on a coat or jacket. He only had on a pair of blue jeans and a flannel shirt.

Even in the absence of proper or adequate eyeball identification, there was adequate circumstantial evidence to bring mov-ant to trial and to support the verdict of the jury. The refusal of the trial court to suppress the identification evidence was proper.

We now turn our attention to the action of the trial court in requiring movant and his co-indictee to demonstrate to the jury the appearance of highwaymen performing an armed robbery.

Movant and Holland were tried together and on the night of the robbery were traveling together. It is logical, therefore, for a jury to consider the testimony of one of them, or the testimony of a witness as it is directed to one of them, to affect the other. Consequently, the act of each would improperly affect the other.

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Bluebook (online)
620 S.W.2d 316, 1981 Ky. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-commonwealth-ky-1981.