Robinson v. State

OPINION

BRETT, Presiding Judge:

Michael Wayne Robinson has appealed his conviction of Armed Robbery in Oklahoma County District Court, Case No. CRF-78-5253. Since all his assignments of error relate to his arrest and identification, some discussion of these events is necessary.

After a robbery had been committed at 3500 North Classen, in Oklahoma City, a confidential informant gave Oklahoma City Police Detective Robert Shahan the names of the robbers. The appellant was one of the men named. The informant also told Shahan that the appellant was involved in some other robberies, including one at 2300 North Broadway, in Oklahoma City. Detective Shahan then talked to one of the men named by the informant. That man admitted taking part in both the Classen and Broadway robberies, and said that the appellant had been involved in both of them. Based on this information, Detective Shahan ordered the appellant’s arrest.

It later turned out that the victim of the Classen robbery was unable to identify any of the robbers; however, the appellant was not released. As a result of his conversations with the informant and the other robber, Detective Shahan now believed that the appellant had taken part in numerous other robberies in the Oklahoma City area. He talked to the appellant without giving him the Miranda warnings, and the appellant admitted his complicity in a number of robberies, including the one at 2300 North Broadway, in Oklahoma City. Concerning the Broadway robbery, the appellant said he had not been in the store at the moment it was robbed, having merely gone in to see whether there were any customers there. But the detective’s investigation indicated that a man wearing what the appellant said he was wearing was in the store during the robbery.

The appellant was placed in a lineup, where the victim of the Broadway robbery identified him as one of the robbers in the store.

I

At the trial the appellant sought to challenge the arrest and identification proceedings and the trial judge held an in camera hearing. During the course of the hearing the State announced its intention to claim a privilege and withhold the name of the confidential informant. In accordance with Laws 1978, ch. 285, § 510 (now 12 O.S.Supp.1980, § 2510), the trial judge interviewed the detective outside the presence of the appellant and both attorneys. He found that the informant was reliable and upheld the arrest and the lineup. The appellant challenged the constitutionality of Section 2510 in the district court, and he now argues that he was denied his right of confrontation by the closed hearing.

The appellant was not denied his right of confrontation because the informant was not a witness against the appellant. The informant’s tip enabled Detective Shahan to begin an investigation, but the informant did not take part in either the robbery on Classen or the Broadway robbery for which the appellant was tried, and there was no indication that he or she could give any testimony relevant to the issues being tried. Compare Hill v. State, 589 P.2d 1073 (Okl.Cr.1979).

II

The appellant also maintains that he was illegally detained after the victim of the Classen robbery failed to identify him. He claims that when Detective Shahan talked to him without giving him the Miranda warnings, the information he gave the detective constituted an illegally obtained confession, and that the subsequent lineup was illegal as a fruit of that confession.

But at the time of that interview Detective Shahan already had independent information linking the appellant to the Broadway robbery. In his “confession” the appellant said he was not an active participant in the robbery. The informant and the other robber, on the other hand, had both said that he did take an active part. Because of their information, the detective was justified in holding the appellant and conducting another lineup.

Ill

Finally, the appellant asserts that the trial court erred in refusing to give his requested instructions on the weakness of eyewitness testimony. This Court has discussed the same issue in previous cases. A cautionary instruction might be appropriate in a case where a witness could not make a firm identification or where there had been a previous failure to make an identification. Compare Hall v. State, 565 P.2d 57 (Okl.Cr.1977).

The present case was not an appropriate one for such an instruction. The victim of the Broadway robbery had ample opportunity to view the robbers and he testified that he had seen the appellant in the store at other times.

The judgment and sentence is affirmed.

BUSSEY, J., concurs. CORNISH, J., specially concurs.