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04/14/95 NATHANIEL LEROY DAWSON AND MARK KEITH

April 14, 1995

NATHANIEL LEROY DAWSON AND MARK KEITH GLASTER
v.
STATE



Appeal from Tuscaloosa Circuit Court. (CC-93-1278 (Dawson) and CC-93-1280 (Glaster)). John England, TRIAL JUDGE.

As Substituted. Application For Rehearing As To Dawson, Application Granted June 16, 1995. Rule 39(k) Motion Denied June 16, 1995. As To Glaster, Application Overruled June 16, 1995. Rule 39(k) Motion Denied June 16, 1995. Certiorari Denied August 18, 1995. As Amended.

Patterson, Judge, Taylor, P.j., Concurs IN Part, Dissents IN Part; McMILLAN, Cobb, Long, JJ., Concur.

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

Nathaniel LeRoy Dawson and Mark Keith Glaster appeal their convictions and sentences resulting from a consolidated trial. Dawson and Glaster were each convicted of first degree burglary, first degree rape, first degree sodomy, and first degree robbery, and they were each subsequently sentenced to four consecutive terms of life imprisonment. *fn1

I.

Both appellants argue that the victim's pretrial identifications of them were impermissibly suggestive. See Simmons v. United States, 390 U.S. 377, at 384, 88 S. Ct. 967, at 971, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967); and Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The victim was shown two photograph lineups. Each lineup contained a photograph of one of the appellants and photographs of five other men with features similar to the appellant. In the photographs of the appellants, they were wearing orange jumpsuits, which all prisoners are required to wear. The photographs depict only the appellant's faces, but the collars of the jumpsuits are visible in the photographs. Glaster was the only person wearing an orange jumpsuit in his lineup. Dawson was one of two men wearing orange jumpsuits in his lineup. Furthermore, before the lineups, the victim was informed that the appellants had been arrested and were in jail. Although we agree that these lineups were suggestive, in view of the totality of the circumstances, we do not believe that they were so suggestive as to lead to a substantial likelihood of misidentification.

In arriving at this Conclusion, we consider the five factors outlined in Neil v. Biggers. First, the victim had ample opportunity to observe Dawson and Glaster during the commission of the crimes. The crimes took place in the victim's apartment during the day. The entire incident lasted approximately 40 minutes. Neither appellant wore a mask or any other form of disguise, and the victim had sufficient opportunity to observe their faces at close range for extended periods of time. Second, the witness was paying attention during the crimes. Like the victim in Neil v. Biggers, "she was no casual observer, but rather the victim of one of the most personally humiliating of all crimes." 409 U.S. at 200, 93 S. Ct. at 382-83, 34 L. Ed. 2d at 412. Third, the victim gave sufficient descriptions of Dawson and Glaster in her statement to the police. Although she was unable to give detailed portraits while giving her statement, she asserted that she could recognize her attackers, and she pointed to her head saying, "They're here. I'd know them if I saw them in a second. I'd know them." Fourth, at the lineups, which was videotaped and which is in the appellate record, the victim demonstrated intense certainty that her identifications were correct. Finally, the lineup was conducted the same day the crimes were committed. Therefore, although the lineup was suggestive, the particular facts of this case render a false identification highly unlikely.

II.

Both appellants contend that the trial court erred in granting the state's motion to consolidate their trials. See Curry v. State, 601 So. 2d 157 (Ala.Cr.App. 1992). Dawson and Glaster both argue that they were prejudiced by "spillover" evidence -- evidence which, although admissible against one codefendant, was allegedly inadmissible against the other codefendant.

Glaster claims that he was prejudiced by the following evidence, which he contends would not have been admissible in a trial in which he was the only defendant: Dawson's wallet, which was found in an apartment rented by an acquaintance of Dawson; a photograph of the victim's sister-in-law, found in Dawson's wallet; and Dawson's extrajudicial statements that he and Glaster had robbed someone and that the photograph depicted the victim.

Dawson claims that he was prejudiced by the admission into evidence of the victim's watch, which Glaster was wearing when he was arrested. Dawson contends this watch would not have been admissible in a trial in which he was the only defendant.

Neither Dawson nor Glaster have met their burden in their advancing this argument. See Holsemback v. State, 443 So. 2d 1371, 1377 (Ala.Cr.App. 1983) (quoting United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir. 1982): "In reviewing improper denial of severance claims, courts of appeals require that the defendant demonstrate that the trial court abused its discretion by showing that the failure to sever resulted in compelling prejudice . . . . The defendant fails to meet this burden if he merely asserts that acquittal is more likely if he is tried in a separate action or that much of the prosecution's evidence relates only to one of the codefendants.").

In their briefs to this court, they complain about the alleged prejudicial impact of certain items of evidence, and argue that this evidence would have been inadmissible against them if the trial had not been consolidated. However, they fail to address the specific question of how this evidence prejudiced them. Furthermore, the evidence does not appear on its face to compel prejudice in the minds of the jurors. Therefore, the trial court was within its discretion in granting the state's motion to consolidate.

III.

Both appellants argue that the trial court erred in admitting into evidence the videotape of the victim's statement to the police, and the audiotape of her 911 telephone call to the emergency operator, reporting the crime. See Donahoo v. State, 505 So. 2d 1067 (Ala.Cr.App. 1986) (videotape), and Bridges v. State, 516 So. 2d 895 (Ala.Cr.App. 1987) (audiotape).

A.

The appellants each challenge the admission into evidence of the victim's videotaped statement, arguing that it is inadmissible hearsay and that it contains double hearsay. The victim testified at trial, before the videotape was offered into evidence. Her testimony included all of the alleged hearsay contained on the videotape, and she was cross-examined by the defense. The appellants did not object to the victim's testimony regarding the matters they allege are hearsay in the victim's videotaped statement. The ...


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