July 21, 1978. Petition for Writ of Certiorari to the Court of Criminal Appeals, 361 So.2d 19. J. Earl Langner, Birmingham, for petitioner.
The defendant should object to the composition of the jury prior to trial. Williams v. State, 342 So.2d 1328 (Ala. 1977); DeLoach v. State, 361 So.2d 19 (Ala.Cr.App. 1977), writ quashed, 361 So.2d 21 (Ala. 1978). More particularly, the court in Brown v. State, [Ms. 1 Div. 215, January 13, 1987] (Ala.Cr.App. 1987), and Swain v. State, 504 So.2d 347 (Ala.Cr.App. 1986), held that an objection should be interposed before the jury is empanelled and sworn.
A challenge which comes for the first time in a motion for new trial comes too late and amounts to a waiver of the objection. Williams v. State, 342 So.2d 1328 (Ala. 1977); Durden v. State, 394 So.2d 967 (Ala.Cr.App. 1980), cert. denied, 394 So.2d 977 (Ala. 1981); DeLoach v. State, 361 So.2d 19 (Ala.Cr.App. 1977), cert. denied, 361 So.2d 21 (Ala. 1978). An exception to this rule exists for matters which were not known, or by the exercise of due diligence, could not have been known before trial. Williams v. State, supra.
When an in-court identification is shown, as here, to have a source independent of any pretrial identification or confrontation, it is properly admitted in evidence. DeLoach v. State, Ala.Cr.App., 361 So.2d 19, writ quashed, 361 So.2d 21 (1977); Doss v. State, Ala.Cr.App., 333 So.2d 173 (1976); Speigner v. State, Ala.Cr.App., 369 So.2d 39, cert. denied, 369 So.2d 46 (1979). Soon after the robbery, in aid of the officers in their efforts to determine the identity of the robber, Modica drew a picture of defendant as the robber.
The in-court identification was properly admitted in evidence. DeLoach v. State, Ala.Cr.App., 361 So.2d 19, writ quashed, Ala., 361 So.2d 21 (1977); Jackson v. State, Ala.Cr.App., 361 So.2d 1152 (1977); Hatchet v. State, Ala.Cr.App., 335 So.2d 415 (1976); McGuff v. Alabama, 566 F.2d 939 (5th Cir. 1978). The record discloses no error prejudicial to defendant.
This was a completely black neighborhood and her attention was naturally focused on white men in that locality at that hour of the morning. Given the extensive — even intensive — cross-examination shown by the record in this case and the presence of several factors indicating the reliability of the out-of-court identification, any suggestiveness attendant to the pretrial photographic identification is far outweighed and no error was committed in the admission of Mrs. Glenn's identification. DeLoach v. State, Ala.Cr.App., 361 So.2d 19; Childers v. State, Ala.Cr.App., 339 So.2d 597; Donilson v. State, Ala.Cr.App., 350 So.2d 738. Appellant argues that the use of a mug shot of appellant in the photographic array was unduly suggestive relying on Holsclaw v. State, Ala.Cr.App., 364 So.2d 378. Under Holsclaw mugshots or similar photographs are inadmissible as being prejudicial and as evidencing a defendant's possible involvement in an unrelated crime.