Clemons v. State

Full title: DONALD WAYNE CLEMONS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Oct 23, 2008

No. 01-07-00684-CR (Tex. App. Oct. 23, 2008)

Opinion

No. 01-07-00684-CR

Opinion issued October 23, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).

On Appeal from the 263rd District Court Harris County, Texas, Trial Court Cause No. 1019997.

Panel consists of Justices TAFT, KEYES and ALCALA.

MEMORANDUM OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Donald Wayne Clemons, of capital murder¹ and assessed punishment at life in prison. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress an in-court identification. We affirm.

1 See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2003).

Background

On February 19, 2005, appellant approached two men, Sampson and Samuel Huff, who were seated in a 1993 Cadillac Sedan outside of a barber school at 10700 South Gessner and demanded the keys to the vehicle. After saying, "Give me the keys," and, "You think I'm playing," appellant started shooting. Sampson, who was in the driver's seat, tossed the keys, and Samuel and Sampson ran away from the vehicle in different directions. Appellant shot Sampson, who fell to the ground and later died. Appellant also shot Samuel and wounded him in the lower back. Samuel limped to the barber school to get help while appellant drove away with Sampson's vehicle. An ambulance drove Samuel to the hospital. One day after the shooting and while Samuel was still in the hospital, police asked him to make an identification of the shooter. Although he gave an accurate description of appellant, Samuel was unable to identify him from a photo spread. At this time Samuel was in pain and taking pain medication. About a month after the shooting, Samuel identified appellant as the shooter after viewing a live lineup with participants who repeated the phrase, "Give me the keys." Appellant was the only person who appeared in both the photo spread and the lineup. Prior to trial, appellant moved to suppress the identification made by Samuel, stating that the pre-trial identification procedures (as described above) were so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable misidentification. Samuel and Sergeant J. Parker, the officer who conducted the identification procedures, testified at a pretrial hearing regarding the pretrial identification procedures. After hearing the testimony, the trial court denied appellant's motion to suppress the identification, finding that the live lineup was not suggestive. At trial, the State presented evidence that appellant shot Sampson. Samuel identified appellant as the shooter, and he told the jury he was absolutely sure that appellant was the shooter. Prior to Samuel's in-court identification, appellant had renewed his previous objection to the admission of the identification procedures. Ashley Hickman, who was a friend of appellant, testified that prior to the shooting appellant asked her to identify areas where "there are people with nice cars." She testified that appellant's reason for wanting to know was to "hit a few licks" and move to New York. Hickman also testified that appellant threatened her with death if she told anyone about his plans. Another witness, Maranda Cole, who dated appellant, testified that she dropped appellant off at the parking lot where the incident occurred and around the time of the shooting. She further contended that, after the incident, appellant asked her for directions to Louisiana and demanded that she "keep [her] story straight" on these "issues." Lastly, appellant conceded that he had possession of Samuel's car after the incident. The jury returned a guilty verdict and this appeal followed.

Analysis

In his sole point of error, appellant contends the trial court erred when it denied his motion to suppress the in-court identification made on the basis that the pretrial identification procedures were unnecessarily suggestive and gave rise to a substantial likelihood of irreparable misidentification. An in-court identification is inadmissible when (i) the photographic display procedures are impermissibly suggestive and (ii) the suggestive procedures give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968); Burkett v. State, 127 S.W.3d 83, 86 (Tex.Crim.App. 2003). The burden falls on the criminal defendant to show by clear and convincing evidence that the in-court identification is unreliable. Burkett, 127 S.W.3d at 86. In addition, the reliability of an in-court identification "must be considered on its own facts." Simmons, 390 U.S. at 384, 88 S. Ct. at 971; see also Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App. 1995). To warrant the exclusion of Samuel's in-court identification, appellant had to show that the photographic line-up identification procedure was impermissibly suggestive. Santos v. State, 116 S.W.3d 447, 451, 455 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). A pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so. Barley, 906 S.W.2d at 34. Suggestiveness may be created in the manner in which the pretrial identification procedure is conducted, for example, by police pointing out the suspect or suggesting that a suspect is included in the line-up. Id. at 33. A pretrial identification procedure is not impermissibly suggestive, however, merely because a witness may have believed one of the individuals in the line-up was a suspect. Harris v. State, 827 S.W.2d 949, 959 (Tex.Crim.App. 1992); Abney v. State, 1 S.W.3d 271, 275 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Appellant argues that the "pretrial identification procedures were unnecessarily suggestive because appellant's image was the only image which appeared in both the lineup and the photo spread." He asserts that the procedures undermined the reliability of the identification. He also contends, "Having seen only the appellant in both the photo array and the lineup, the suggestiveness increases the likelihood that he relied on the photograph contained in the array to identify appellant later at the police station." In support of this contention, appellant cites Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969). In Foster, the witness first viewed a lineup in which the defendant, Foster, wore a jacket similar to that worn by one of the robbers involved in the crime and stood beside two other persons who were significantly shorter than Foster. Foster, 394 U.S. at 441, 89 S. Ct. at 1127. After not being able to identify Foster as one of the perpetrators, the witness was permitted to speak face-to-face with him. Id. The witness was still not able to determine whether Foster was at the scene of the crime and viewed another lineup 10 days later with Foster and four other men participating. Id. This time, the witness was convinced that Foster was one of the robbers. Id. The United States Supreme Court held that the suggestive elements in this identification procedure made it all but inevitable that the witness would identify the defendant and so undermined the reliability of the witness identification as to violate due process. 394 U.S. at 443, 89 S. Ct. at 1128. Here, the facts are distinguishable from the procedures used in Foster. See id. When Sergeant Parker interviewed Samuel at the hospital, Samuel had been shot the day before, was in pain, and had taken pain medication. Sergeant Parker testified that Samuel "appeared to be drugged." Sergeant Parker showed Samuel a photo spread containing five photographs, including a photograph of appellant, but Samuel could not identify the shooter. Although he was unable to identify appellant in the photographic display, Samuel gave an accurate description of the shooter. A month after the shooting, Samuel viewed a live lineup containing five black males, including appellant. The suspects were asked to say the phrase, "Give me the keys," and they were all of similar appearance. At that time, Samuel identified appellant as the shooter. Although appellant was in the photo array shown to Samuel right after the shooting and in the live lineup a month later, this fact alone does not make the pretrial identification impermissibly suggestive. See Cantu v. State, 738 S.W.2d 249, 252 (Tex.Crim.App. 1987) (stating, "Not every case in which several arrays or displays of a defendant containing different pictures of a defendant are [shown is] suggestive."). In light of Samuel's condition when police showed him the photo array, the pretrial procedure of having Samuel view a live lineup a month after the shooting that also included appellant as a suspect was not impermissibly suggestive. See Barley, 906 S.W.2d at 33-34 (holding that a suspect may appear in more than one identification procedure when circumstances necessitate); cf. Cantu, 738 S.W.2d at 252 ("In the abstract, therefore, the procedure of showing [the witness] several arrays on different occasions, all containing appellant's photograph, is a suggestive procedure. Such procedure tends to highlight a particular defendant since the witness sees the same face repeatedly."). Even if a pretrial identification is impermissibly suggestive, an in-court identification is admissible when the trial court has an adequate basis for concluding that the in-court identification is reliable. Harris, 827 S.W.2d at 960. To determine the reliability of the in-court identification testimony under the totality of the circumstances, the following five factors should be considered:

(1) the opportunity of the witness to view the criminal at the time of the crime;

(2) the witness's degree of attention;

(3) the accuracy of the witness's prior description of the criminal;

(4) the level of certainty demonstrated by the witness at the time of the confrontation; and

(5) the lapse of time between the alleged act and the time of the confrontation.

Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S. Ct. 2243, 2253-54 (1977); Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). First, we weigh these factors in a light favorable to the trial court's ruling; then we weigh the factors, viewed in this light, de novo "against the `corrupting effect' of the suggestive identification itself." Ibarra, 11 S.W.3d at 195-96.

Opportunity to View

Samuel testified that, as he sat in the passenger side of the vehicle, he witnessed a person walk towards the driver's side of his brother's vehicle. Samuel had the opportunity to see and hear the person as he demanded the car keys and said, "You think I'm playing?" Samuel testified that appellant's face was not even a foot away. When appellant walked up, the window was down, and it was daylight outside. Samuel testified at trial that he remembered the person who shot his brother and was absolutely sure appellant was the shooter. He based the identification on appellant's physical appearance and voice. In addition, Samuel's in-court identification of appellant was based on his observation of appellant during the offense.

Degree of Attention

The facts indicate that Samuel's attention was focused on appellant from the time appellant was dropped off until appellant came to the driver's side of the car where Samuel and the complainant were sitting. Samuel listened to appellant as he said, "Give me the keys," and, "You think I'm playing." Once appellant started shooting, Samuel exited the vehicle from the passenger side and ran away. Accuracy of Description When Sergeant Parker visited Samuel in the hospital, Samuel gave a general description of the shooter. Samuel described the shooter as a black male who was wearing a back football jersey and was around 5'10'' in height. Samuel's description of appellant was accurate.

Level of Certainty

Samuel could not identify appellant in the photo array shown to him in the hospital after he had been shot. At the live lineup, Samuel was able to positively identify appellant as the shooter. Sergeant Parker testified that Samuel also thought another person in the lineup looked similar but that it was not him because the person had a tattoo and the shooter did not. Sergeant Parker testified that Samuel stated that he was not 100 percent sure that appellant was the shooter. Samuel testified that he could not identify any of the suspects in the photo array, but he did recognize appellant in the live lineup. When asked if he was sure of the identification in the lineup, Samuel stated, "I knew him right when I seen him."

Time Between Crime and Confrontation

One day elapsed between the crime and the photo array. A month after the crime, Samuel identified appellant as the shooter at the live lineup.

Other Considerations

In this factor, we take into account that at the time that Samuel first saw the photo array, he had just been shot, he was in pain, and he was on pain medication. Thus, in examining the totality of the circumstances, we place less weight on the fact that appellant appeared in a photo array and a live lineup, considering that Samuel may not have been in a clear state of mind when he first saw the photo array. We also note that appellant testified that he did have tattoos on his hands and that he had them prior to February 2005 while Samuel testified that appellant had no tattoos. Appellant's testimony was countered by evidence from another witness who testified that she saw appellant wearing a bandana around his hands that may have precluded Samuel from noticing the tattoo. After reviewing the factors, we conclude that Samuel had sufficient opportunity to view appellant at the time of the shooting. Appellant's face was less than a foot away from Samuel, the window was open, and Samuel heard appellant make two statements before the shooting began. Although Samuel could only give a general description the day after the shooting, Samuel was in pain and under medication at the time. Furthermore, at the time of the live lineup, Samuel testified that he was sure that appellant was the shooter and that he was trying to recall the face of the shooter from the day of the shooting. Morever, at trial Samuel identified appellant as the shooter based on what he remembered from the day of the shooting. Weighing this evidence of reliability against the possible suggestiveness of the pretrial identification procedures, we conclude that the in-court identification did not create a substantial likelihood of mistaken identification. See Ibarra, 11 S.W.3d at 196. We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.