Opinion
1 Div. 31.
January 13, 1970.
Appeal from the Circuit Court of Mobile County, Joseph M. Hocklander, J.
Thomas M. Haas, Mobile, for appellant.
A conclusion by a witness that his in-Court identification was not tainted by a pretrial lineup is insufficient, without supporting facts, for the State to sustain its burden of proof that the in-Court identification was not tainted by the illegally held pre-trial lineup. Harris v. State, 39 Ala. App. 139, 99 So.2d 201; Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d. 1149.
MacDonald Gallion, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.
In order for a prosecution witnesses' courtroom identification of an accused as criminal to be admissible there must be a showing by the prosecution establishing by clear and convincing evidence that the courtroom identification is based upon an observation of the suspect other than the lineup identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.
This appellant stands convicted for the offense of robbery with a sentence of ten years in the penitentiary.
Appellant's first trial resulted in a mistrial on account of the illness of a juror. In that trial the court determined illegal a lineup in which appellant was placed and where he was viewed and identified as a participant in the robbery by some of the witnesses. By stipulation of the parties the testimony taken at the previous trial was made a part of this record.
The evidence for the state tended to show that two men, one of which was the defendant, came into a Delchamps food store, located in Prichard, Mobile County, Alabama on March 25, 1968, and announced, "this is a stick-up." Both men were armed with pistols. The men took $1369.00 from the cash registers and safe. There were four eye-witnesses to the robbery: Mr. J. B. Ostini, Store Manager, Mr. Beasley, Assistant Store Manager, Mr. Loyd Gilmer, store employee, and Mr. Ralph Green, a route salesman for a local bakery. They identified the defendant in court as one of the robbers. They testified that subsequent to the robbery they were shown pictures and that they also identified the defendant from the pictures. Each witness testified he was not given any suggestions, aid or assistance in selecting defendant's picture from those shown him.
The testimony of the witnesses clearly shows that their in-court identification of the defendant was not dependent upon their having seen him in the lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; State v. Allen, 251 La. 237, 203 So.2d 705; Grace v. State, 44 Ala. App. 682, 220 So.2d 259.
The judgment is affirmed.
Affirmed.