Opinion
Rehearing Denied May 4, 1966.
For Opinion on Hearing, see 55 Cal.Rptr. 897, 422 P.2d 585. Robert L. Kern, Covina, under appointment by the District Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David S. Sperber, Deputy Atty. Gen., for plaintiff and respondent.
KINGSLEY, Justice.
Defendant was charged with a violation of section 211 of the Penal Code, robbery. It was also alleged that defendant had suffered prior convictions for the crimes of murder, robbery and grand theft. Out of the presence of the jury, the priors were admitted. Defendant was found guilty and that judgment was reversed, pursuant to the mandate of the United States Supreme Court in Stoner v. State of California (1964) 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, because of the erroneous admission of articles which the Supreme Court held were secured by an unlawful search. On retrial, defendant was again convicted of robbery in the first degree, the verdict finding that he had been armed at the time of the commission of the offense. A motion for new trial was denied; probation was denied; a state prison sentence was imposed. Defendant has appealed.
The notice of appeal, prepared by defendant in propria persona, also purports to institute an appeal 'from the overruling orders of the Court made, given and entered on the 20th day of August, 1964.' We treat this as an attempt to appeal from the orders denying a new trial and denying probation. Neither is separately appealable (Pen.Code § 1237), and that portion of the appeal must be dismissed.
On the evening of October 25, 1960, two men held up an employee (David Quentin Greeley) of the Budget Town Market. Defendant was ultimately arrested and charged with being one of the two robbers. It is not contended that the robbery did not take place as alleged, defendant's contention being that he was not one of the robbers.
I
Prior to defendant's arrest, the police had searched his apartment and secured, among other items, glasses and articles of clothing. It was the illegality of that search which led to the reversal of his first conviction. At the present trial, Greeley identified defendant as one of the robbers. The record shows that Greeley had first made a tentative identification of defendant from a police photograph; thereafter defendant, dressed in the glasses and clothing secured by the unlawful search, was placed in a lineup and Greeley identified him as one of the robbers. At the trial, Greeley testified that he identified defendant, then in court, because of sundry personal characteristics and claimed that the final identification was not influenced by the fact that he had earlier
Defendant wore a hat and a gray sweater at the lineup. The sweater was secured in the search; the record does not show the history of the hat.
Defendant claims that the identification testimony, at the second trial, should have been excluded as being the fruit of the illegal search and seizure. The trial court, after hearing Greeley's testimony (given on voir dire and outside the presence of the jury) ruled that the identification was not 'solely motivated or even greatly motivated by the addition of any of the wearing apparel that was taken from the apartment' and allowed the identification testimony to go to the jury.
We think that this was error. It is well settled that evidence obtained by an illegal search and seizure cannot be used against a defendant even indirectly (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441), although evidence paralleling that illegally obtained may be used if it is obtained independently (Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319). Once a witness has been led to make an identification on the basis of the illegal use of evidence illegally obtained, and has repeated that identification in court on two previous occasions, it has become psychologically impossible for him to cleanse his mind of the impressions thus illegally obtained and thereafter to make a new and 'independent' identification unaffected by the previous events, no matter how much he may wish to do so or believe that he has accomplished such a feat. Here it is clear to us that Greeley's identification from the police photograph was uncertain and tentative and that it was not until, and because of, the appearance of defendant in the lineup, attired as he then was, that that identification became certain and positive. The courtroom identification now relied on to place defendant at the scene of the crime was inherently and inescapably a 'fruit' of the condemned search of his apartment and should have been excluded.
Greeley had identified defendant at the preliminary examination and at the first trial.
The process of 'remembering' is exceedingly complex; it is composed of many factors, one of which is that of any previous 'remembrance.' The whole problem is extensively discussed in Bartlett, Remembering (Cambridge University Press, 1950).
The trial court, although admitting the testimony, held, as we have above recounted, that the current identification was 'not solely' or 'even greatly' motivated by the earlier and tainted identifications. But we cannot speculate on the degree of taint that remained; the poison remains in the fruit even after new wood has been grafted to the tree. It is only where the evidence relied on was truly arrived at and obtained quite independently of the original misconduct that it can be utilized.
II
Since the identification testimony was an important part of the People's case, its erroneous introduction was prejudicial and impels a reversal. Under these circumstances, we need not discuss the other alleged errors urged on us on this appeal; some may not arise on a new trial, other matters complained of, if they do arise, will occur in a different setting and atmosphere.
The purported appeal from the 'overruling orders' is dismissed; the judgment is reversed. JEFFERSON, J., concurs.
FILES, Presiding Justice (dissenting and concurring).
I dissent from the holding that, because the victim of the robbery had been permitted to see the defendant in the sheriff's station wearing the illegally seized glasses and sweater, he could not thereafter testify that the defendant had robbed him.
Mr. Greeley testified that as he stood at the checkstand of the Budget Town Market defendant pointed a .45 caliber service pistol at him and ordered him to put all of the money from the cash register into a paper bag. Greeley saw defendant for about 5 minutes on this important occasion. Within 30 minutes officers arrived and Greeley gave them a description of the robber, mentioning, among other things, a gray jacket or sweater and horn-rimmed glasses. Greeley next saw the defendant in the sheriff's station about a week later, when defendant was wearing the sweater and glasses which had been taken in the illegal search. At that time Greeley identified defendant as the robber. At the trial Greeley testified that he was positive defendant was the man who had robbed him, based upon his recollection of the robbery.
The issue is (in the language found in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 408, 417, 9 L.Ed.2d 441, 455) "whether, granting establishment of the primary illegality [i, e., the search of defendant's room] the evidence to which the instant objection is made [Greeley's testimony] has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."
The trial court expressly found that Greeley's testimony was not 'greatly motivated' by the use of the sweater and glasses. This finding is supported by Greeley's testimony, and there is no evidence to the contrary. My colleagues reject Greeley's testimony and the finding of the trial court upon their assertion that 'it has become psychologically impossible for him to cleanse his mind' of the impressions obtained when he saw defendant wearing sweater and glasses in the police station. I doubt that it is the function of this court to make such a pronouncement. Ordinarily we say that matters pertaining to the credibility of witnesses (including of course any psychological factors which may affect the quality of the witness' recollection) are exclusively for the trial court.
Even if we must hold that the 'fruit of the poisoned tree' doctrine means that whoever views the fruit has an unclean mind, the rule need not be applied to the facts of this case. There is nothing unique about a gray sweater or horn-rimmed glasses. Where the victim of the robbery told the officers that the robber was so attired, it would be reasonable and proper to place such a sweater and horn-rimmed glasses on the suspect when he was presented to the victim for identification. The particular articles seized in defendant's room were not essential for this purpose, and their use gave the prosecution no significant advantage.
This case was tried before the decision in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and the People placed in evidence a full confession given by the defendant following his arrest. Under the Dorado rule this calls for automatic reversal. On that ground alone I concur in the judgment reversing the conviction.
Rehearing denied; FILES, P. J., dissenting.