Young v. State
Young v. State
Opinion
Nathaniel Young was indicted for robbery in the second degree, in violation of ยง
On August 30, 1988, two men entered Busch's Jewelers in Ensley, Alabama. Jim Grantham, the store's manager, after waiting on another customer, assisted the two men. The men wanted to look at some men's diamond rings, so Grantham took three or four rings from the jewelry case. One of the men asked the total price for one of the rings. Grantham took his handheld calculator and began to figure the amount. While Grantham was doing this, *Page 45 one of the men (whom he later identified as the appellant) sprayed some aerosol substance into his eyes and shouted, "This is a stickup."
Grantham fell to the floor. He wiped his eyes and looked up to see the second man behind the counter. The men took seventeen rings, totalling approximately $8,000 and fled the store.
As the men were exiting the store, one of the men bumped into Randolph Anderson, who was standing outside on the sidewalk. Anderson later identified the appellant from a photographic array as the man who had knocked him down. He also identified the appellant in court as one of the robbers.
Lavella Gilliam, a store employee, was also present at the time of the robbery. She and Grantham, individually and at different times, viewed a lineup at the Jefferson County jail. They both picked this appellant from the lineup as being one of the robbers. Each also made an in-court identification of the appellant.
A seventh photograph was also admitted into evidence. This photograph was of the appellant and was taken the day of the lineup.
The appellant contends that the photographs were improperly allowed into evidence. He bases his argument on two grounds: (1) the "mug shots" of the appellant implied that he had a prior criminal record; and (2) Anderson failed to verify, or authenticate, that the photographs introduced at trial were those shown to him on the day that he picked the photograph of the appellant as being that of one of the robbers.
As to the contention that the "mug shots" indicated that the appellant had a prior criminal record, we note that the record on appeal is devoid of any evidence that the appellant raised this ground at trial. It is well settled that all grounds of objections not raised at trial are waived. "Appellant is bound by his specified objections, Bolding v.State,
As this court stated in Dorsey v. State,
Moreover, the photographs on which the appellant bases his argument are not found in the record. As we stated inAbbott v. State,
"A reviewing court cannot predicate error on matters which are not shown by the record. Robinson v. State,
444 So.2d 884 (Ala. 1983). The appellant bears the burden of insuring that there is a correct record. Welch v. State,455 So.2d 299 (Ala.Cr.App. 1984)."
The importance of our review of the actual photographs was shown by our decision in Lockett v. State,
As for the appellant's claim that the photographs should have been authenticated by Anderson, we disagree. Anderson testified that Sergeant Harrison showed him six photographs. From these photographs, he identified one as being the person who had knocked him down. This was the appellant's photograph. Anderson stated that, per Sergeant Harrison's instructions, he signed his name on the back of that photograph.
Sergeant Harrison testified that he showed Anderson six photographs, that Anderson identified one as being the robber, and that Anderson signed his name on the back of that photograph. Sergeant Harrison then stated that State's exhibits one through six were the six photographs shown to Anderson.
Photographs are typically admissible if they are "properly verified by a person who is familiar with the subjects of the photographs. . . ." Whittington v. State,
When a party challenges a pre-trial identification, this court must apply a two-part analysis. First, we must determine if the identification procedure was unnecessarily suggestive. Johnson v. State,
Prior to trial, the appellant moved to suppress the out-of-court identifications of him by the witnesses. On September 15, 1988, a lineup was conducted at the Jefferson County Jail. Five men were in the lineup, including this appellant.
Grantham and Gilliam, both of whom were witnesses to the robbery, were called to observe the lineup and to see if they could identify one of the robbers. Both individuals were told that the robber might or might not be in the lineup.
Grantham and Gilliam entered the observation room separately. Both witnesses identified the appellant as being one of the robbers. Sergeant Harrison, who was present at the time, recalled Grantham's stating that he was 90% sure that the appellant was the robber. He recalled Gilliam's saying that the appellant looked like one of them.
The testimony of Sergeant Harrison and Deputy A.H. Hayes of the Jefferson County Sheriff's Department (who coordinated the lineup) established that all five participants were dressed in blue pants and a blue shirt, and all had the same basic physical characteristics โ black males, between 6' and 7' tall, weighing 220 to 350 pounds.
The appellant, during his case-in-chief, called three witnesses. All three witnesses were participants in the lineup and were currently serving time in a state or county prison facility. Two of the witnesses stated that only the appellant was asked to step out of line and turn. The third witness testified that they were all asked to step forward, but only the appellant was asked to turn.
Sergeant Harrison and Deputy Hayes testified to the contrary. In fact, Deputy Hayes was called as a rebuttal witness for the State. She testified that she was in charge of lineups at the Jefferson County jail. She stated that if she asks one of the participants in the lineup to do something, all of the participants are required to do the same thing. *Page 47
Based on the above evidence, the appellant has failed to show to this court that the pre-trial lineup was unnecessarily suggestive. Therefore, we are not required to analyze the five factors of Neil v. Biggers.
For the reasons stated, the decision of the trial court is due to be, and the same is hereby, affirmed.
AFFIRMED.
All the Judges concur.
Reference
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- Nathaniel Young v. State.
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