Summary
stating “we do not pass on the credibility or the weight of [the witness's] testimony. The question here is the sufficiency of her testimony to support its admissibility. The impact and effect of her testimony during cross-examination is for the jury”
Summary of this case from State v. ChuolOpinion
No. 39042.
Filed July 25, 1974.
1. Criminal Law: Trial: Evidence: Constitutional Law. The admission of evidence of a tainted showup does not without more violate due process. 2. Criminal Law: Trial: Evidence. The purpose of excluding evidence made as a result of a tainted identification procedure is to avoid a substantial likelihood of irreparable misidentification. 3. Criminal Law: Trial: Evidence: Constitutional Law. In order to find a due process violation, the court must determine if the independent basis of the identification when viewed in the totality of the circumstances defeats a substantial likelihood of irreparable misidentification. 4. Criminal Law: Trial: Evidence: Witnesses. The credibility of the witnesses and the weight of the testimony are questions for the jury to decide. 5. Criminal Law: Trial: Evidence. A voice identification is enough to support a conviction.
Appeal from the District Court for Lancaster County: HERBERT A. RONIN, Judge. On reargument. See 191 Neb. 505, 216 N.W.2d 504, for original opinion. Affirmed.
Paul E. Watts, J. Joseph McQuillan, Bill Campbell, Gerald E. Moran, and George R. Sornberger, for appellant.
Clarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
This case reaches us a second time on reargument after we granted a motion for rehearing. Our first opinion in this case is reported in State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504. In that opinion we reversed the judgment and remanded the cause for a new trial solely on the ground that the identification of the defendant by the witness Patricia, one of the identification witnesses, was a product of a tainted showup with no independent basis; and, therefore, should have been excluded. On reargument, we affirm the conviction and set aside that part of our previous opinion holding that the admission of the witness Patricia's identification testimony was error.
The facts of this case may be found in our previous opinion, State v. Sanchell, supra. The sole issue presented before us on reargument is whether the witness Patricia in making an in-court identification of the defendant did so as a result of a taint; and if so, was there an independent basis for the identification?
As the State concedes in its brief the showup of February 8, 1972, was "unnecessary" and possibly "impermissible." However, the admission of evidence of a tainted showup does not without more violate due process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199. The entire purpose of excluding such evidence made as a result of a tainted identification procedure is to avoid "* * * a substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247. Each case must be determined on its particular facts. In order to find a due process violation, the court must determine if the independent basis of the identification when viewed "in the totality of the circumstances" defeats a "substantial likelihood of irreparable misidentification." We find no error in the District Court's decision of admissibility at the suppression hearing.
We stated in State v. Cannon, 185 Neb. 149, 174 N.W.2d 181, citing United States v. Broadhead, 413 F.2d 1351 (7th Cir., 1969): "* * * the court held that in-court identification evidence was admissible where such identification was made on a basis independent of a tainted line-up. This case also sets out the general procedure for determination of such questions by the trial court in the following words: `Where the prosecution intends to offer only an in-court identification, the defense may challenge its admissibility. The court should then, on facts elicited outside the presence of the jury, rule upon whether a pre-trial identification by the same eyewitness is violative of due process or the right to counsel. If a violation is found, the court should then decide whether the in-court identification is still admissible because it has an independant (sic) source; indeed, it would appear in the interest of expeditious judicial administration for such a ruling to be made in any event. If the judge regards only the in-court identification as admissible, in the trial to the jury thereafter, the defense may, as a matter of trial tactics, decide to bring out the pre-trial confrontation itself, hoping that it can thus detract from the weight the jury might otherwise accord the in-court identification.'" The District Court either decided at the suppression hearing that there was no taint flowing from the showup or that there was an independent basis.
In the instant case, witness Patricia did not make an identification at the showup on February 8, 1972, nor did she do so immediately afterwards. She did not make an identification at the showup even though Patricia knew that she and several other girls were in court "* * * to identify somebody." Witness Patricia identified the defendant for the first time on January 24, 1973, at the suppression hearing. She identified the defendant based partly on his profile and hands that she saw clearly for the first time after the robbery at the preliminary hearing on March 1 and March 2, 1972. More importantly, however, she heard him speak for the first time at the preliminary hearing. She stated that the voice was the same as the voice she heard in her room on January 22, 1972. She made the positive identification only after she was sure the defendant was the same man. While it cannot be determined how much effect the showup had on Patricia, there is no doubt that the basis of her identification, the profile, the hands, and the voice was totally independent of the showup. At the showup, she did not notice anything. The defendant had his back to her and there is nothing in the record to indicate that she heard the defendant speak.
Thus, the three factors that Patricia used to identify the defendant were not affected as a result of the tainted showup. Furthermore, the basis of the identification, even if the taint had some effect on Patricia, was totally independent of the taint. The voice identification had absolutely no connection with the visual showup of February 8, 1972.
In all the identification cases, an identification has been made directly as a result of a "impermissibly suggestive," "tainted," or "illegal" identification procedure. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (post-indictment line-up without counsel); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (post-indictment lineup without counsel); Stovall v. Denno, supra (showup without counsel); Simmons v. United States, supra (pre-indictment photographic array); Neil v. Biggers, supra (a station house showup without counsel). That is not the case in the present situation. The identification was made over a period of time as a result of memory and recollection. The showup occurred prior to the filing of the information.
It must be said that some, if not all, of the difficulty in our determination of admissibility arose from a detailed, searching, and very able cross-examination of Patricia. A close reading of this cross-examination reveals that this young witness became uncertain and perhaps confused at certain times in responding to the precise questions propounded to her. This, of course, is a rather typical picture of an able and experienced defense counsel examining a young and inexperienced lay witness. In any event we do not pass on the credibility or the weight of Patricia's testimony. The question here is the sufficiency of her testimony to support its admissibility. The impact and effect of her testimony during cross-examination is for the jury. It is clear however that throughout her testimony, she never waivered from her basis for identification. Patricia was only one of three witnesses identifying the defendant. It is true that she could not positively identify the defendant until a year and one day after the crime. As to the voice identification it is argued that another witness sitting next to Patricia at the preliminary hearing when she first heard the defendant's voice only heard a "mumble." It is also true that Patricia was only able to see the intruder's face for 3 seconds. There was a question as to whether there was sufficient "daylight" available for her to observe the defendant in the 3-second period of time. But, whatever the source, she did testify that there was sufficient light available for her to observe the defendant's face for this period of time. But more importantly, Patricia did not identify the defendant at the showup or at any other time on the basis of visual face identification. Her positive identification was based, by her own testimony, upon the independent voice recognition. The trial court could have found that there was no impermissible suggestiveness or taint arising from the showup on February 8, 1972, because Patricia did not identify the defendant at that time. We cannot say as a matter of law, that there was some momentum of impermissible suggestiveness or taint that was initiated and put into motion at the time of the February 8, 1972, showup. Her failure to identify at that time, of course, may be used and was used for the purpose of impeaching her identification testimony. These questions, of course, are all for the jury. The credibility of the witnesses and the weight of the testimony are questions for the jury to decide. State v. Meyers, 182 Neb. 117, 153 N.W.2d 360; State v. Sukovaty, 178 Neb. 779, 135 N.W.2d 467; State v. Abraham, 189 Neb. 728, 205 N.W.2d 342. It was the jury's duty to weigh these factors in determining how much weight, if any, it should place on Patricia's testimony.
Since there was an independent basis, was the means of identification sufficient to support a conviction? We have held that a voice identification, without more, is enough to support a conviction. Froding v. State, 125 Neb. 322, 250 N.W. 91; Small v. State, 165 Neb. 381, 85 N.W.2d 712. In the present case, not only is there a voice identification, but such is also accompanied by the profile and hand characteristics of the defendant. Where the defendant is identified by a witness with the above physical features, the probative value of such is solely a question for the jury. Froding v. State, supra.
We adhere to our former opinion and decision except for that portion holding the testimony of Patricia inadmissible. On reargument we hold it admissible and affirm the judgment and sentence of the District Court. AFFIRMED.