Opinion
Rehearing Denied Oct. 8, 1969.
Sheela, Lightner, Hughes, Hilmen & Castro and Howard J. Bechefsky, San Diego, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen, and Ivan Hoffman, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
WHELAN, Associate Justice.
On February 12, 1968, Susan Ward, on foot, left her home on Louisiana Street in San Diego at 8:30 p.m. to go to a neighboring supermarket. After making her He drove the car out of the lot and turned right onto Louisiana Street, going south. As he crossed the next intersecting street, he said, "Well, we can start by * * * " putting down the pistol onto the seat and picking up a paper bag that was on the seat. When Mrs. Ward saw the pistol on the seat she opened the door and jumped out, falling down and then running east on Wightman Street, from which she turned into Mississippi Street and took refuge in a house at which she sought help. The occupant called Mrs. Ward's husband and then the police, who came and returned her home and to whom he made a statement of her experience.
Keith Kelly was employed by the Food Basket market visited by Mrs. Ward. On February 12, between 8:45 and 9:00 p.m., when he went to the parking lot to collect empty shopping carts, he saw a bronze or gold colored Plymouth sedan with large tail fins in the southeast areas of the parking lot; he would identify the Plymouth sedan as a 1957 model; inside the car was a white male whom Kelly could not identify; at 9:00 p.m. Kelly secured the premises for the night and at that time noted that the Plymouth was gone; he did not hear a shot at any time during that evening.
Officer Robertson obtained the first description of the kidnaper from Mrs. Ward, who described him as a white male, dark complexion, between 35 and 45 years old, approximately five ten in height, noticeably skinny, with very heavy pockmarks on his face and very heavy lines on his forehead and one running under his chin which gave the appearance of a double chin; he had dark hair which appeared curly from what she saw on his temples; his face had a good tan; he was very ugly; he wore a dark felt hat with a band around the brim, a three-quarter length black trench coat, black pointed shoes and dark pants; he was very neat.
Mrs. Ward described the car as a 1955 or 1956 Plymouth; under the lights in the parking lot, which gave the effect of changing the colors of objects beneath them, the car appeared to be in two colors, the upper part gold, from which coloring the lower part was separated by a dark stripe. The rear fenders of the car narrowed down to a sharp edge and then cut downward.
She said the paper bag on the seat of the car lay on its side, the open end forward; it contained something she could not see, and was brown in color.
Officer Kenneth Moller of the San Diego police also took a description from Mrs. Ward that night. She stated that the attacker was a white male, between 35 and 45 years of age, approximately five feet eight to five feet ten in height, very neatly dressed in a black overcoat, a black hat and black pointed shoes; he had deep furrows in his forehead and deep furrows under this chin line.
She described the car to Moller as a 1956 Plymouth, gold and beige, or bronze and beige. From the description, based upon his experience, Moller formed the opinion that the car was in fact a 1957 Plymouth. Mrs. Ward also told Moller she thought the car was a four-door sedan Moller put out a broadcast with that additional information, then took Mr. & Mrs. Ward around the El Cajon Boulevard-University Avenue area looking for a car similar to the one described by Mrs. Ward. She picked out a 1956 Plymouth.
While with Mrs. Ward, Moller had her point out the place on the parking lot where she had been accosted. He made a search in that area, but found nothing in that search.
Alfred G. Butler of the San Diego police was on duty in a marked police vehicle, black and white in color, at about 10:30 p.m. of February 12, traveling southerly on Highway 395 to its intersection with Ash Street onto which he turned to go west en route to the police station. He had heard a police broadcast calling for the detention of a white male, approximately 40 years of age, wearing a black hat, a black trench coat, having ruddy or pockmarked complexion, driving a gold-colored 1956 Plymouth, who was wanted for attempted kidnapping, attempted rape and assault, and who was armed and had fired a shot.
As Butler passed through the intersection of Ninth and Ash, he saw, stopped for the traffic signal at the south side of the intersection, a 1957 gold and cream-colored Plymouth facing north in the left-hand lane with its signal light indicating a left turn onto Ash and with the front wheels turned to the left. Having passed through the intersection, Butler pulled over from the center lane to the south side of Ash Street and stopped his car in order to question the driver of the Plymouth when it should reach that point. After Butler stopped, he saw in his mirror the traffic lights at the intersection change and that the Plymouth did not turn left but passed across Ash going north on Ninth Avenue. Butler turned around to follow the Plymouth and saw it turn into the parking lot of a restaurant, go across to the east side of the parking lot and back into a parking stall on the east side of the restaurant building.
Having stopped his car, Butler approached the Plymouth and saw the man behind the wheel dropping his right hand from the steering wheel to the side. Butler drew his service revolver and ordered the man out of the car. The defendant alighted from the car; as he did so Butler saw an automatic pistol on the front seat alongside the position vacated by defendant.
Butler told defendant he was under arrest and searched him. In defendant's right coat pocket he found an opened pen-knife, eight inches long, with a three-inch blade. In the left coat pocket was a simulated police identification card containing defendant's photograph and the name "Kegen, D. G." and a goldcolored badge inscribed "Special Officer."
After handcuffing defendant and placing him in the police car, Butler looked in the Plymouth and saw a brown paper bag and a black hat on the front seat; the bag contained a bottle of Vodka, partly emptied.
The pistol was loaded with a clip of eight cartridges and with the breech closed; there was a ninth cartridge in the chamber in the firing position.
On the floor of the car in front of the driver's seat was a black plastic bag containing thirty-six .22 caliber cartridges, a brown holster and a pair of black leather gloves.
Also on the floor close to the bag were two rolls of adhesive tape, one two inches wide and the other one inch wide, a screwdriver and a two-cell flashlight, a brown paper bag containing two woman's garter belts, and two pairs of hose.
At about 10:40 or 10:45 p.m., while en route to the police station, Moller received a radio call to give assistance at the restaurant parking lot where Moller arrived two or three minutes later.
There he saw a gold and beige, or gold and off-white, 1957 Plymouth parked in the southeast corner of the lot. Defendant was in the rear of one of two police cars already there. He was dressed in a black about an hour and a quarter later, after he had been shown by Butler the pistol and a hat found in the car, Moller asked that the parking lot of the supermarket be searched further.
Robertson made the search of the parking lot between 12:00 midnight and 2:00 a.m. and found the casing of the shell of an automatic pistol.
Mrs. Ward was taken to see defendant's car at the place of the arrest, saw the car and got into it. She found it to be similar to the car of the kidnaper in that the car was a Plymouth, its upper part was gold and the rear of the fenders or fins came out sharp and cut down.
On the morning of February 13, Mrs. Ward was at the police station where Sergeant Duncan showed her three color photographs for the purpose of having her identify any one of the five men who appeared in the photographs, all of which showed the same five men standing in a row, each photograph showing the subjects at a different angle to the photographic lens. She picked out the second man from the left, the defendant, as her assailant.
Criminalist Joseph M. Orantes of the San Diego Police Laboratory gave his opinion that the cartridge case found in the supermarket parking lot had been fired from the pistol found in defendant's car.
EVIDENCE FOR THE DEFENSE
On behalf of the defendant, Henry I. Ford testified he occupied a room at the Altrude Hotel on Fourth Avenue in San Diego; that defendant sometimes stayed there with Ford, and had an arrangement with Ford and the manager to receive mail and telephone calls, although none had ever been received; that on February 12 between 7:00 and 7:30 p.m., defendant came to the hotel and talked to the manager; that Ford and defendant walked outside where defendant handed Ford the keys to defendant's car and said he would be back later to pick them up; that defendant had never done that before; that Ford went to a card room where he was accustomed to spend time and to which defendant came between 10:00 and 10:30 when the keys were returned to him. Defendant gave ford about $200 from a brown envelope in which there was "quite a bit"; the money given to Ford was in bills of $20 denomination with a few fives and tens.
Defendant was dressed in a suit or wore a sport jacket that evening and wore a tie.
James L. Howard testified on behalf of defendant that on the evening before he read of defendant's arrest defendant was in the hotel between 6:00 and 7:00 and talked to Ford, with whom he walked out. Defendant might have worn a dark coat and light trousers.
Defendant testified as follows: his name was Michael Lawrence; his earliest name was Robert Reynolds, but he took the name Robert Ray since his mother's remarriage to a man named Ray. He had also used other names, and on February 12, before his arrest, he had used the name George Christopher. He was a television writer, but used the name George Christopher in his work as a professional photographer.
He came to San Diego on the morning of February 12 and went first to look for a man who owed him money; it had been his intention to use the ostensible police identification to obtain information as to his debtor's whereabouts, but the address at which he hoped to get such information proved to be fictitious.
The pistol which he had had since the trouble in Watts was in its holster inside the black plastic bag.
He went to the Altrude Hotel between 7:00 and 7:30 after parking his car on the street. He left the keys with Ford with instructions to park it off the street if defendant should be late in returning, since defendant was to be picked up by a man named Ruiz and carried to Tijuana, Mexico. Defendant was driven to Tijuana to the La Sierra Motel where he met with several men on business. The conference lasted until 9:00 or 9:30 when defendant was taken back to San Diego and dropped off in front of the hotel about 10:00 to 10:30; not finding Ford in his room, defendant sought him at the card room, and there obtained the car keys after giving Ford money.
Before starting back to Los Angeles, defendant wanted coffee, and on Ninth Avenue, while looking for the freeway entrance, he saw Denny's, into whose parking lot he pulled and in which his arrest followed.
He denied he wore a coat at any time on February 12, asserting he wore a gold-colored sweater over a shirt of the same color, brown slacks and brown Beatle boots.
At the time of his arrest, he had some $9,800 in a brown envelope under the front seat of the car. That money has disappeared and has never been accounted for.
he had been given $10,000 in bills of $100 denomination at La Sierra Motel in Tijuana by Carlos Cuevas, who had jumped bail in Los Angeles and who was sending the money to reimburse the bondsman in part.
He had no knife in his pocket when arrested. When he last saw the knife before his arrest it was in the glove compartment, closed.
The garter belts, one size 22 and the other size 26, and the two pairs of hose, size 9, he had bought on February 12 as gifts for his daughter.
CONTENTIONS ON APPEAL
Defendant states his contentions as follows:
"The use of the photographic lineup to deny appellant the assistance of counsel was improper and unduly suggestive.
"A. The lineup procedure violated appellant's right to the assistance of counsel.
"B. Where the victim described her assailant as wearing dark clothing, the photographic lineup in which only appellant wore dark clothing and in which the police indicated that she had picked out the right person was improper.
"C. Where a motion to suppress the lineup identification had been denied in advance of trial principles of res judicata did not prevent the trial court from sustaining the renewed motion.
"D. The error was not harmless beyond a reasonable doubt."
CONTEXT OF THE QUESTIONS ON APPEAL
Defendant's contentions encompass several different questions that must be separately considered.
Mrs. Ward was at the police station on the morning of February 13. There she was interviewed by Officer Duncan; she left the police station at about 1:00 p.m.
Mrs. Ward's identification from the photographs was presented as one element of the prosecution's case in chief, for the purpose of supporting her in-court identification. If such identification from a photograph is subject to all the infirmities inherent in the physical confrontation in a lineup so that defendant has a right to counsel either when the photograph was taken, or when it was viewed by the witness, or at both times, then the presentation and reception of such evidence over objection as a part of the prosecution's case in chief constitutes automatically reversible error under Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, unless the error beyond a reasonable doubt did not affect the verdict.
Closely related to that problem is the question whether the police deliberately chose the method employed for the purpose of subverting defendant's right to counsel.
Also involved is the question mentioned above whether, even though the evidence of identification was not inadmissible on Sixth Amendment grounds, the use of the photographs and the methods used in taking them, so colored the in-court identification During the morning of February 13, Officer Duncan talked to defendant, who informed Duncan he wanted and was trying to reach an attorney.
Later that morning Duncan interviewed Mrs. Ward. While Mrs. Ward was at the police station Duncan telephoned the jail and asked that a photograph be taken of defendant lineup with other persons looking similar to him. Duncan did not know at the time whether defendant had gotten in touch with a lawyer as he had said he intended to do, and made no inquiry on that subject. He chose the method followed rather than attempting to have defendant stand in a lineup for Mrs. Ward's viewing without an attorney or delaying until an attorney could be reached. While Mrs. Ward was with Duncan, shortly after 1:00 p.m. three colored photographs were shown her by Duncan; they were a front view and two side views of the same five men.
Duncan told her to take her time and to look at the pictures and if she recognized her assailant to point him out. Thereafter Duncan remained silent until she pointed out, after a few seconds, the second man from the left, who was the defendant.
No mention had been made to Mrs. Ward of any criminal background of any of the subjects, no markings had been placed on any of the photographs, and no word or gesture from Duncan directed attention to any one of the subjects.
On April 19, from 10:00 a.m. and into the afternoon, Judge Roger S. Ruffin heard a defense motion to suppress the evidence of Mrs. Ward as to her identification of defendant as her assailant.
There was extensive discussion as to whether evidence of that class was a proper subject for suppression under section 1538.5, Penal Code, or under any procedure for suppression of evidence antedating the adoption of that statute. The question was raised by the court: the district attorney was willing to have the question of the legality of the identification decided prior to trial provided that if the court should deny the motion, that question, but not the probative effect of the identification, could not again be made an issue during the trial. The upshot was that a stipulation was entered into to that effect in which the defendant personally joined.
Besides earlier discussion of such a stipulation, the following occurred:
Mrs. Ward, the defendant and David Horn testified at that hearing. Horn was an attorney who came to the jail at defendant's request, first in the early afternoon of February 13 and again on February 14. Horn, on each occasion, signed an attorney's pass card into the jail on which Horn testified that on his first visit he had advised defendant to refuse to answer any questions and to say that he did so on advice of counsel; that nothing was said on that occasion about any lineup; that that subject was mentioned on February 14.
Mrs. Ward testified as follows: she had been requested to come to the police station and she went there. She recounted her story to Sergeant Duncan. She was told that the police had a suspect in custody; she had obtained that information the night before at the restaurant parking lot. As the final part of her interview with Duncan, he showed her three photographs in color of five men standing in a row; the three photographs represented three different views of the same men.
Duncan did not tell her one of the men was the suspect in custody, but she was hoping that one was the suspect. Duncan told her to be sure to pick out the right one, by which she understood him to mean that she was to be sure not to pick out someone who had nothing at all while she was looking at the photographs; he did not give her the names of any of the persons in the photographs or any information about any of them; he made no remarks on the photographs and did not point out anyone in the photographs; as far as she was concerned, the guilty person did not have to be in the picture.
She pointed out the second man from the left as her assailant, who was the defendant. It did not take her long to do so. After she had done so, Duncan told her the three other girls had positively identified him.
Defendant testified the photographs had been taken after he had talked to Horn; that when being taken to be photographed he told his police escort:
"[t]hat my counsel had advised me that it was my right to a fair trial, and that a fair trial I could not have if I participated in police line-ups without his presence; and that I should tell the officers--any officers who approached me to participate in any kind of a procedure to please notify him and give him an opportunity to be present and we would be more than happy to cooperate in any way, statements, photographs, or anything."
According to the defendant that police officer had just previously conducted defendant from the interview room and from the presence of Horn.
It seems obvious Judge Ruffin did not believe that testimony of defendant, but believed Horn's testimony.
Judge Ruffin denied the motion to suppress, ruled the arrest was made with probable cause and that evidence of both the in-court and the out-of-court identification by Mrs. Ward was admissible.
There is involved also the procedural question whether the trial court was bound as a matter of law by Judge Ruffin's determination of the motion to quash, in favor of the admissibility of both the in-court and the photographic identification.
If he was not so bound, did he commit reversible error in permitting evidence of both identifications in the face of his own apparent opinion that the use of the photographs was in violation of defendant's right to counsel, and that defendant's clothing in the picture somehow focussed attention upon him?
WAS THE USE OF THE PHOTOGRAPHS OF SEVERAL PERSONS LINED UP TOGETHER A VIOLATION OF THE WADE-GILBERT RULES?
Mr. Justice Brennan delivered the opinions of the court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, supra, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Again, speaking for the court in Stovall v. Denno, 388 U.S. 293, 296, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, Justice Brennan said:
"Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel. A conviction which rests on a mistaken identification is a gross miscarriage of justice. The Wade and Gilbert rules are aimed at minimizing that possibility by preventing the unfairness at the pretrial confrontation that experience has proved can occur and assuring meaningful examination of the identification witness' testimony at trial."
It is clear that many of the abuses to which the bodily confrontation lends itself are not inherent in the viewing of a photograph of several people lined up, of whom the suspect is one. There is in such photograph no record of anything said to or by the suspect. No word or gesture of the police present at the taking of the photograph is preserved.
The photographic identification has in its favor the fact that the photograph is a visible, tangible record of the persons in the lineup, their comparative heights, dress, coloring and gross physical characteristics. It does away with possible conflicts in evidence as to the number of persons, their manner of dress, and the resemblances and lack of resemblances among them.
The questions, then, would seem to be: Does the photograph show on its face that attention has in some way been focussed on the suspect? Either when the witness viewed the photograph or beforehand, was anything done by the police or said by them to the witness to influence the identification toward the suspect?
Some of those who have written on the subject of eye-witness identification have analyzed the identification process almost to the point of favoring the discarding of such identification evidence.
The course once seemed clear that the prosecution of innocent persons would be less likely if an eye-witness could say that a suspect in custody was or was not the guilty person. No doubt a view of the suspect alone was the earliest method employed. Later, either from a desire for fairness or to present an appearance of impartiality, there was adopted the method of the lineup, which may have been initiated by the police or imposed upon them.
Whether the lineup was adopted by the police sua sponte or otherwise, outside criticism of the method has developed with the results we have seen.
Given a choice between the physical confrontation in the lineup with the defects that have made it necessary to hold its results inadmissible against a defendant denied counsel in the process, and an alternative from which many of those potential defects are absent, the police in the case at bench thought it advisable to To us it seems reasonable that they should seek some identification before charging the defendant with a serious felony.
Some of the defects inherent in the physical line-up confrontation are noted in an unpublished article:
Despite the possibilities of ineradicable prejudice that may arise from the physical confrontation lineup in the absence of counsel, are we to say that since the suspect has the right of counsel at such a lineup any other method of tentative identification must be rejected as an evasion of the right to counsel?
We are of opinion the court condemned physical confrontation of a suspect in custody is not the sole means by which tentative identification may be made preliminary to the filing of formal charges against a person in police custody.
The reasonableness of the showing of photographs to an eye-witness for the purpose of possible identification of the perpetrator of the crime where an arrest has not yet been made has been recognized. (Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.)
Having in mind that Wade and Gilbert, by specific mention, dealt with physical lineup confrontation, we cannot say that tentative identification of a suspect chosen from among as many as five persons in a single photograph, or in a number of photographs of single individuals, requires the presence of or waiver of counsel either in the preparation of the photographs or in the viewing of them.
For that reason we are of opinion that a claim the method used was for the sole purpose of evading defendant's right to counsel in a physical confrontation lineup misses the mark if the method employed is a permissible one, and that the real question is whether that identification actually made was unfairly arrived at.
Where there is such unfairness in the photographic identification, it is necessary The question of fairness of the photographic identification does not depend upon the intention of the police to be fair. The test is an objective one. It may be noted, however, that when Mrs. Ward was shown the photographs of five men, the police had in their possession two other photographs of defendant alone and on a larger scale. One of them defendant had had in his pocket when arrested, as a part of his faked police credentials; the other, showing a front and side view, was taken the night of the arrest after defendant had been booked. Neither of those photographs was shown to Mrs. Ward.
In passing upon the question of the fairness of the photographic identification as it may have affected the in-court identification, we must consider the remark made by Duncan after Mrs. Ward had picked out defendant, "The three other girls positively identified him."
Such a remark would no doubt tend to strength in Mrs. Ward's mind the correctness of her identification. However, the three girls mentioned testified at the same preliminary hearing at which Mrs. Ward testified; she testified at the hearing on the motion to suppress at which time was argued a motion to sever the trial of the three counts of child stealing, and to dismiss those counts; and she testified at the first trial in which the three girls also testified before the court granted a motion to dismiss the child stealing counts. Mrs. Ward was the first witness at the preliminary hearing and at the first trial. It is most improbable that she would not by the time of the second trial have been fully aware of the identification of defendant by the three girls as the man who had given them a ride in his car.
The photographs seen by Mrs. Ward were of five men of the same general coloring of skin and hair; there was nothing distinctive about the hair-line of any of them; three were slightly taller and one shorter than defendant, with no two of exactly the height; all were spare of build and all appeared to be within a range of 40 to 55 years of age; all wore dark trousers and dark shoes; defendant wore an open front sweater described as gold in color over a shirt of about the same color; the man to defendant's right wore a lighter colored sweater over a lighter colored shirt; two were in shirt sleeves, and one wore a T-shirt, all more or less white in color; none wore a hat or other head covering.
Mrs. Ward described her assailant as wearing a black hat and a three-quarter length black coat, and she did not see what he wore underneath the coat.
While defendant may be said to have been distinctively dressed because of the color of his sweater, the man to his right could also be said to have been distinctively dressed because of the color of his sweater. In the absence of expert testimony on the subject it is anybody's guess whether Mrs. Ward, because she described her assailant as wearing dark clothes would instinctively pick out of the photograph a man wearing a sweater somewhat darker than the sweater of the man next to him, when she had no knowledge of what her assailant wore under his black coat.
It cannot be said as a matter of law that there was any unfairness in the selection of the subjects for the photographs or in the manner in which they are presented pictorially; and we are of the opinion the photographic subjects from among whom Mrs. Ward selected defendant's picture were not unfairly selected or unfairly clothed or presented.
Mrs. Ward's description of her assailant and of his car, as given to the police, in many respects did not match the actual appearance of defendant and his car. That does not mean that her identification of defendant in the group photograph must have been unfairly influenced.
With regard to the car, we think it may be judicially noted that a model of an Whether the two colors of the car's paint were separated by a line of a different color, and whether a separation of the upholstery of the seat along a seam was properly described as a tear are matters that go to the weight of the overall testimony of Mrs. Ward.
Nor do we think imperfect ability to record mentally and recite orally the details of the physical appearance of a person is necessarily inconsistent with the ability to recognize that person when seen in a photograph or in the flesh. The discovery that a witness is defective in powers of memory, observation or description would, of course, tend to cast doubt in the mind of the trier of fact as to the correctness of the identification.
Another inconsistency noted by defendant does little to discredit Mrs. Ward's identification. The designation of an automatic or semiautomatic pistol as a revolver is one which for many people might be found at fault.
Whatever may have been the cause of failure to produce the coat worn by defendant at the time of his arrest, that he wore such a coat at the time was testified to by several witnesses. To discredit them would be to fall in line with the claim of defendant that he had $10,000 in $100 notes, whose mysterious disappearance could only be explained on the theory it was stolen by the police. In the context of defendant's account of how he came by the money and for what purpose, the theory of police dishonesty has little to recommend it.
On the other hand, Mrs. Ward's identification is strongly corroborated by other evidence: A car matching the description of his car was at the Food Basket at the relevant time; the manner of defendant's driving just before his arrest and his actions when approached by the arresting officer gave grounds for suspicion; articles found in his car--the pistol, paper bag, hat, and the coat he wore--were such as were described by Mrs. Ward; the improbability of his attempted alibi was another suspicious circumstance; the cartridge case that had most likely been fired from his weapon was found at the market parking lot; all those matters give powerful corroboration to the victim's identification of the malefactor, unless her testimony as to what happened to her is to be dismissed as a fiction.
In Simmons v. United States, supra, 390 U.S. 377, 385, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, the court said:
"[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."
We reach the procedural question whether the trial judge should have passed upon the admissibility of the photographic identification in the light of defendant's claim it was made in defiance of defendant's right to counsel, and was otherwise unfair; and upon the admissibility of the in-court identification in the light of the same contentions; and whether, in the event the judge should find that no right to counsel had been violated, but did find the photographic identification unfair in other respects, he should have determined whether the in-court identification could be independently supported.
The question is made more critical because the trial judge, having heard the testimony of defendant, Mrs. Ward, and Duncan outside the presence of the jury made remarks indicating he though defendant had a right to counsel when the photographs were taken, and perhaps that he thought there was a deliberate flouting of the right to counsel, and also thought the It may be the latter opinion was inspired by the view that the presence of counsel would have insured that defendant would have been clothed differently. While counsel might make such a request, we cannot know that the request would be honored.
Nevertheless, the trial judge ruled he was bound by Judge Ruffin's prior decision that evidence of both the out-of-court identification and the in-court identification was admissible.
The position taken by trial counsel for defendant was ambivalent. He did not attempt to repudiate the stipulation made at the special hearing; he did not seek to be relieved of it; rather, he urged that the stipulation had been fully satisfied and had spent its force by having been recognized at the first trial. The record shows nothing of what occurred at the first trial except that three counts of child stealing were dismissed by the court on the showing made by the People, and a mistrial was declared as to the two counts involving Mrs. Ward on the jury's representation they were divided 10 to 2 without hope of reaching a verdict.
A declaration under a penalty of perjury filed by defense counsel states 10 of the jurors voted to acquit. The source of that obvious hearsay is not stated.
Whatever may have been the effect of the stipulation, it was not limited either expressly or impliedly or as a matter of law to an original trial, if there should be more than one trial.
The purpose of the special hearing, as represented to Judge Ruffin, was to dispose of the question of the legality of the identification made from the lineup photograph; Judge Ruffin stated as another issue whether the in-court identification was so unfairly affected by an illegal out-of-court identification as to be inadmissible.
Counsel at the special hearing stated: "[T]he evidence can be suppressed before trial if it's legally obtained--illegally secured. And we shouldn't have to wait until the trial to go through this, because the success or failure on this motion may very well determine whether or not we go to trial in the first place.
The stipulation offered and entered into by defendant at the special hearing could not confer upon the court a jurisdiction otherwise lacking. Clearly the court had jurisdiction to pass upon the motion to suppress evidence of an allegedly illegal in-court or out-of-court identification.
The propriety of such a motion is emphasized by the decisions in Gilbert v. California, supra, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.
Since the question is one to be passed upon by the court outside the presence of the jury, it is one that may be determined by a judge other than the judge presiding at the trial.
The motion is not one under section 1538.5, Penal Code, which, though its scope embraces intangible evidence, is restricted to that resulting from an illegal search and seizure. Whether an arrest based upon an illegal search and seizure followed by an in-custody identification would afford grounds for a motion under section 1538.5 is not involved here; since there was probable cause for defendant's arrest and detention.
Section 1538.5(n) recognizes the pre-existence of other procedures to suppress physical evidence on the ground it was illegally obtained. Prior to the enactment of section 1538.5 such a procedure was carried out in the superior court in People v. Superior Court, 249 Cal.App.2d 727, 57 People v. Beasley,
In Saidi-Tabatabai v. Superior Court, 253 Cal.App.2d 257, 61 Cal.Rptr. 510, the jurisdiction was recognized to entertain a motion prior to trial to suppress evidence of a confession.
The ruling on such a motion was not appealable. (People v. Beasley, supra, 250 Cal.App.2d 71, 58 Cal.Rptr. 485); nor was the motion one that the court had a duty to entertain; rather whether to entertain or not was discretionary, because of the fact that the People might, though the motion was granted, offer the evidence at trial (People v. Beasley, supra, 250 Cal.App.2d 71, 58 Cal.Rptr. 485; Saidi-Tabatabai, supra, 253 Cal.App.2d 257, 266, 61 Cal.Rptr. 510).
In that respect the rule was not unlike that declared by section 1538.5(j) if the People have additional evidence to that presented at the special hearing and show good cause to the trial court why such evidence could not have been presented at the special hearing.
Since Judge Ruffin had discretion to hear or to refuse to hear defendant's motion for the reasons mentioned in Saidi-Tabatabai, supra, 253 Cal.App.2d 257, 61 Cal.Rptr. 510, it seems to us that defendant might by stipulation agree that if the court heard the motion the question heard and determined would not be renewed before the trial judge.
The point raised by defense counsel at the trial that Sergeant Duncan's testimony added something to the strength of defendant's position, overlooks the fact that Sergeant Duncan had been brought to court as a possible witness at the special hearing, but was not called.
At that time defense counsel stated: "Perhaps I have been lulled into the imprudent security here, especially in view of Mr. Lux's cooperativeness, in arranging for the witnesses to be here. Mrs. Ward is here, Officer Duncan."
Because of the stipulation we need not pass upon the correctness of the trial court's reasons for ruling he would not again decide the questions already ruled upon by Judge Ruffin.
We conclude that the evidence of the out-of-court and in-court identifications was properly received; defendant was not deprived of his Sixth Amendment right to counsel; he was not denied the process or the equal protection of the laws. The evidence of guilt is overwhelming.
The judgment is affirmed.
GERALD BROWN, P.J., and COUGHLIN, J., concur.
"I'm not about to say that Mr. Bechefsky is foreclosing himself from cross examining the witness as to the manner in which she made her identification or as to whether or not this really was the person. Certainly that's not being stipulated to. But any questions as to the legality of her identification would be stipulated to and concluded at this juncture.
"THE COURT: All right.
"MR. BECHEFSKY: So stipulated, your Honor.
"Would you like a personal stipulation from the defendant?
"THE COURT: Yes.
"I wonder if he has any idea what it is that is being stipulated to?
"THE DEFENDANT: Vaguely.
"MR. BECHEFSKY: Frankly, I'm sure he understands it quite well, you Honor. He has been educating me in the law for the last week in this area. And would you let your Honor permit me to ask him? [sic]
"THE COURT: All right.
"MR. BECHEFSKY: Have you heard the stipulation between counsel just now?
"THE DEFENDANT: Yes.
"MR. BECHEFSKY: And do you understand that the stipulation would preclude you from attacking the legality of the line-up at the trial?
"THE DEFENDANT: Yes. This doesn't waive any appeal rights.
"MR. BECHEFSKY: You further understand that it wouldn't wave any rights on appeal?
"THE DEFENDANT: Right.
"MR. BECHEFSKY: So you join in the stipulation?
"THE DEFENDANT' I join in the stipulation.
"THE COURT: All right."
The improper suggestion created by the police may take many forms. One such improper form occurs when the composition of the lineup suggest that only one person in the line is believed by the police to be the criminal. Another improper form occurs when the police force the suspects at the lineup to try on clothing found at the scene of the crime, which clothing in fact fits only one of the suspects. A lineup that is conducted with only one person in the line fitting the description that the witness had previously given the police, is still another example of a highly suggestive and improper form of lineup. These techniques, due to their potential prejudice, are repugnant to any proper extra-judicial identification process.
Another procedure used by law enforcement which has a built-in suggestive effect is the viewing of the suspect(s) by all of the witnesses simultaneously, as in the case of Gilbert v. California.
Another highly suggestive and improper procedure used by the police during a lineup involves a purported voice identification by asking the suspects questions. The impropriety arises if the answers to these questions links the suspect to the crime under investigation.
The opportunities for the police to exert undue influence in the identification process are not confined to the examination procedure itself. Since the entire identification process is under the control of the police, the witness is just as submissive to suggestion prior to the lineup as during the lineup. This suggestion may occur by the way in which the police summon the witness to the lineup for a possible identification. A phone call or a summons by the police may be phrased in such a manner as to be highly suggestive and prejudical to the accused. If the witness is informed by the police that "We think we have the man, come down and make an identification (show up situation)' or, 'We have the man and are going to place him in a lineup for you to identify,' the suggestion that the actual criminal has been apprehended and is awaiting identification has already been planted in the mind of the witness prior to the lineup. The witness would then feel that an identification would be 'expected' of him since the actual criminal he observed previously was at the police station.
If the police convey an image of the suspect to the witness, there is always the possibility that a subsequent identification at the lineup will not be based solely on the physical characteristics originally noted by the witness. Subconsciously, the witness may be identifying the characteristics of the suspect previously suggested by the police.
In United States v. Wade, a more subtle form of suggestion was used against the defendant. Just prior to the lineup the witness saw Wade in the custody of F.B.I. agents "by accident."
An often-used technique in the investigation of crimes is the use of police photographs for determining if the eye witnesses can recognize the man they saw commit the crime. This technique is quite useful to the police in the search for possible suspects. However, the propriety of showing witnesses a picture of a suspect already in custody decreases when the police intend to have the witnesses subsequently view the suspect in person. If the police already have the suspect in custody and plan to show him in a lineup, they don't need any other tentative identifications from photographs.
"* * * * *
"[W]e'll stipulate and the defendant will personally join in the stipulation, that we will not question the legality of the identification--we will not question the legality of the line-up procedure, which is all we are questioning today at the trial."