Shelton v. State
Shelton v. State
Opinion
Robbery; sentence: thirty-five years imprisonment.
Around 9:00 p.m. on December 21, 1978, the appellant and another entered the Quick Service Beverage Store in Madison and robbed it of approximately $500. During the commission of the crime, the appellant shot and wounded the attendant, Mark Bailey, in the leg. The appellant, after being informed by friends that the police were looking for him, voluntarily entered the Huntsville Police Department wherein he was arrested.
During the direct examination of the victim, appellant's counsel requested and was granted an in camera examination of the witness to ascertain whether he had an independent source of information from which to identify the appellant other than the photographic array. Upon completing that examination, counsel further requested that he be allowed to take a prospective State's witness, Madison Police Detective Eugene Marsh, on voir dire. The trial court denied the request indicating that it would be more appropriate at that point in the trial when Detective Marsh would be called as a witness.
A trial court is not obliged to take witnesses out of turn merely because opposing counsel wants to examine them on voir dire at counsel's convenience. The trial judge is vested with discretion in the conduct of a trial, and appellate courts will not interfere unless there has been a clear abuse of that discretion. Townsell v. State,
Nevertheless, we have reviewed the photographic array and the testimony of both the victim and Detective Marsh and find nothing impermissibly suggestive so as to taint the in-court identification. That array (only a portion of which was shown to the victim) was composed of photographs of similar quality, size, detail and clarity. All persons depicted were of the same race. No outstanding or peculiar features of the *Page 871
appellant are highlighted. Only that portion of the array shown to the victim was introduced into evidence as the remaining photographs were directed toward another suspect which the victim could not identify. No error resulted. Neil v. Biggers,
We note that the appellant's argument in brief directs itself not to the suggestiveness of the photographic array, but rather to the victim's inability to initially make a positive identification of him. Such an argument goes to the weight and credibility of the witness' testimony, which is a question for the jury to decide, not a matter for appellate review.
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- James Earl Shelton v. State.
- Cited By
- 21 cases
- Status
- Published