Opinion
1 Div. 4.
February 29, 1972.
Appeal from the Circuit Court, Mobile County, Robert T. Ervin, Jr., J.
Collins, Galloway Murphy, and James H. Lackey, Mobile, for appellant.
The accused is entitled to the assistance of counsel at a police line up. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The admission of in court identification during the guilt stage of the accused's trial without first determining that they were not tainted by the illegal line-up but were of independent origin is constitutional error. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The testimony of witnesses at a preliminary hearing must be reduced to writing, and delivered to the clerk of the Court having jurisdiction of the cause or the solicitor of the County or the Circuit having jurisdiction of the cause. Code of Alabama, 1940, Title 15, Sections 135, 136.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
When a person is lawfully arrested, the police may, without a search warrant, make a contemporaneous search of the person and of those things under his immediate control. McCurdy v. State, 42 Ala. App. 646, 176 So.2d 53; Mangino v. Todd, 19 Ala. App. 486, 98 So. 323; Phillips v. State, 42 Ala. App. 64, 152 So.2d 148. Items publicly exposed or unprotected are subject to seizure by an officer legitimately positioned to see them. United States v. Grogan, 293 F. Supp. 45; Kelley v. State, 39 Ala. App. 572, 105 So.2d 687. In the absence of a ruling by the trial court on objection to either "in-court" identification or motion to suppress the evidence because of absence of counsel at line-up, the appellate court has no grounds for review. Grace v. State, 44 Ala. App. 682, 220 So.2d 259. When evidence establishes "in-court" identification to be made independent of observation made at police line-up, absence of counsel at line-up is harmless error. Grace v. State, 44 Ala. App. 682, 220 So.2d 259; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.
James Allen was convicted of robbery and sentenced to sixteen years in the penitentiary.
On October 27, 1967, Allen entered Seaboard Finance Company, a place of business on Government Street in Mobile. At gunpoint he robbed four employees of $185.00. All four of these employees identified Allen at the trial as the robber.
Appellant argues in brief that the trial court was in error in allowing these in-court identifications. He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. We have carefully reviewed the record and find that no objection whatsoever was made to the admission of these in-court identifications. Furthermore, there was no motion to suppress this testimony. With the record in this posture, nothing is presented for review. Grace v. State, 44 Ala. App. 682, 220 So.2d 259, cert. denied 283 Ala. 714, 220 So.2d 261.
Appellant further alleges error in the refusal of the trial court to grant his request for a transcript of the testimony taken at the preliminary hearing. He contends there were discrepancies in the testimony of one of the witnesses at the preliminary hearing and his testimony at the trial. This motion was made orally during trial. In reply to this motion the trial court stated:
"You understand and know that there is no transcript. That is the reason I denied it. If there was, I would have requested them to give it to you."
Tit. 15, § 135, Code of Alabama, 1940, as amended 1958, provided, before its repeal by Act No. 1106, Acts of Alabama, 1969, that the testimony of witnesses examined at preliminary hearings must be reduced to writing.
We have found no cases requiring a reversal due to the failure of a committing magistrate to comply with the above Statute. Indeed, to so hold might under some circumstances forever preclude the state from prosecuting its case. Moreover, since the nonexistence of the transcript of the preliminary hearing had apparently been established, it would have been permissible for the appellant to have established this witness's former testimony by parole evidence. Jones v. State, 30 Ala. App. 360, 6 So.2d 26; Blanks v. State, 30 Ala. App. 519, 8 So.2d 450.
The judgment in this cause is due to be and is hereby
Affirmed.
PRICE, P. J., and CATES and TYSON, JJ., concur.