*1 358 However, considering v. True them. in order to
the action is barred.” Garland
Corporation,
F.Supp.
354
330
Temper
just
indicate that
this dissent has not been
(D.C.W.Va.1973).
also,
v.
Ray Oklaho-
See
joust
an idle
with the statute of limitations
Co.,
Mfg.
ma Furniture
170
40
Okl.
issue,
I
some
I would add that while
find
(1935);
P.2d
Bank &
663
Savannah
Trust
propositions
merit in some
advanced
Meldrim,
Ga.
Co. v.
195
Actions § “ ** * in a it majority jurisdictions party
is a rule that pleading stat- is,
ute that proof, has the burden of proving
burden of the cause of ac- statutory
tion
than
accrued more
time before
commencement of the
CAMPBELL, Appellant
Richard N.
action.”
(Defendant below),
passed
seem
This court does not
to have
specifically
proof
where
burden
Wyoming, Appellee
STATE of
cases,
good many years
lies in such
but a
(Plaintiff below).
,
ago it said that
defense
of limitations
only
“becomes available on demurrer
when
No. 4820.
petition
affirmatively
shows
Supreme
of Wyoming.
Court
statutory period
elapsed
has
before the ac
tion
was commenced.” Marks
Board of
Jan.
488, 493,
County, Wyo.
Com’rs Uinta
(1903).
8(c),
the statute as an affirmative defense. Ford, Wyo.
First
Nat. Bank of Morrill
(1923),
is-said that is on proof the burden of defenses,
defendant “as to all affirmative they
whether relate to the whole case or
only-to certain issues the case.” plead
Defendant does not the statute of state, any particular
limitations of
claims that the action is barred
provisions statute, of our borrowing 1-3- §
117, W.S.1977. In this court he relies on the
District of three-year Columbia statute.
would hold that inapplicable statute already discussed,
basis and since he has
shown no governs other statute which
has possi- not shown all statutes of places run,
ble have wrong he failed this,
in his burden. it follows that From
the action be dismissed. should not assigned
While other have been errors
defendant, they have been discussed
the majority point my and there is no *2 Chapman, Stop,
Frank R. Truck the victim-attendant, Public Defender for Hughes, County, Laramie Klepping- and W. Michael got company C.B. and called for er, Program, Wyoming Defender Aid Cas- help. the police The call was received at Mr. per, signed Kleppinger the brief and patrolling station alert went and an out appeared in oral argument behalf of to Woody’s officers. Brent drove Officer *3 appellant. pointed Truck Stop where the attendant in According the 5ch Morrie. direction of and Mendicino, Gen., Atty. V. Frank Gerald Brent, Gen., immediately to off without Stack, he took Deputy Atty. A. and Allen C. Johnson, Atty. Gen., signed stopping interview the attendant.2 On Asst. the brief to appeared for appellee. way Morrie, Mr. Johnson in the and far away, oral to 5th not he argument on appellee. behalf of the radio his destination to two broadcasted cars, patrol converged other both of which RAPER, J., GUTHRIE,* Before C. and on the vicinity. Officer Brent testified that McCLINTOCK, ROSE, and THOMAS JJ. area, while he approaching was the two or away, three vehicle blocks he saw a leave RAPER, Chief Justice. off in high speed, pur- the so curb at took The defendant-appellant charged testimony Though suit. there is no with in aggravated robbery violаtion of any exit the defendant witness saw 6-66, 1957,1(§ 6-4-402, 1977), § W.S. W.S. vehicle, that he the circumstances indicate guilty by jury found and sentenced to a spotted did so because Officer Markland penitentiary eight term of not less than nor area, him after flight in in the chased and more years. appeal, than fifteen On de- apprehended him. fendant to be: defines the issues meantime, came Kolkman Officer “1. Whether the Trial Court’s refusal to up to assist. Officer Brent then went back suppress in-court identification of the to talk to the attendant where he inter- perpetrator Defendant as the of the rob- viewed. took into Brent evidence white bery by deprived Appellant victim paper appeared of due Other process of law. sack. officers to make a scene investigation. crime Brent “2. Whether the Trial Court committed took Hughes police station take a plain refusing error in to instruct statement. jury as its of consideration identifica- tion testimony.” Markland, engaged the officer while We will affirm. chase, take saw the defendant off a hours,
Early green jacket ground. in the morning Woody’s and throw it on Truck Stop was robbеd. The He testimony was of assisted in the search the defendant that after the robber left Woody’s for weapons. He identified the defendant * argument, years At the time oral while this case than for not less fifty five nor more than was under years.” advisement and at time a deci- reached, J., Guthrie, sion was was Chief Jus- appear thoroughly 2. It does Brent was tice. retired He from the court on December what, interrogated any, just at the trial as to By court, order of the entered on given by Hughes identification was undertaking pursuit. him before January he has retained been in active Hughes, judicial pursuant V, Wyo- service §to Art. however, stated on cross-examination that he ming Rooney, 5-l-106(f), Constitution and § W.S. 1977. gave following description: the officer the J., participate. did not ' Well, seven, “A. about five foot five foot 6-66, (§ 6-4-402, 1. Section W.S. 1957 W.S. eight, right pounds, around 140 to 150 had a 1977): green jacket on and had a hat. forcibly feloniously “Whoever and “Q. takes What about hair? person possession from the long hair, of another stringy “A. Had too. value, property putting violence or “Q. you anything Did tell them about a fear, deadly weap- when a firearm or other mustache? on is used or exhibited in the commission of No, they “A. too because didn’t ask much. offense, guilty aggravated robbery just pointed they way took off.” imprisoned penitentiary shall over all of the person apprehended money in the courtroom as the hand from the cash and, during register the course of that identifica- quantity paper currency— —a defendant, did, tion, Hughes at the time which after which the defend- noted ant trial, lay lei- told on the floor. After was attired in a wine colored robbery, he made an “inventory” had a mustache. He recov- sure suit and missing. found there to be He green jacket searched the ve- tes- $403.00 ered the that, departing, tified before He robber quantity paper hicle. observed a pistol shot off the over top foot or so currency blowing around in the wind and a lying of his and took After head off. there wig black In the laying ground. on the minutes, for a got company’s few he on the vehicle, seat, pistol along was a help. Hughes C.B. and called for testified currency. more loose The total amount of that, robbery, at the the defend- time on, currency Later recovered $403.00. weаring green ant had a mustache was an additional was taken from the $30.00 *4 coat, (the long stringy wig) had hair and person. defendant’s When wearing was a dark hat. handed the Kolkman, pursuing offi- one of the three courtroom, green jacket in he recalled the cers, wearing as identified defendant a T- the dark The defend- spot on the shoulder. shirt, pants, length dark hair and medium Hughes ant said the was asked to stand. having apprehen- a the time of mustache at weight. height robber was the same testimony sion. His was that the defendant preliminary hearing, pres- At the in the three blocks north apprehended about Hughes, ence of the defendant was escorted Woody’s. money He testified that the into the courtroom of the Justice blowing picked up. around was He also jail clothing Peace in and handcuffed. De- gray testified that he saw a black and objected fendant to his attire. The interro- checkered hat on the floor of the vehicle gation Hughes by county the attorney wig. investigated and the A fourth officer got hardly past introductory stage. its He scene, the Woody’s Stop, crime Truck where Woody’s had described his duties at Truck he found a bullet hole in a wooden counter Stop night as A few minutes attendant. shelf and out the prying assisted bullet. m., “guy” through before 2:00 a came the a. picked up A fifth officer that he testified door, sack on the up gun, put raised a a a .22 case from the cartridge caliber short it over”. He was counter and said “hand chief stop. floor of truck The State’s headgear, like a skull- wearing dark colored forensic scientist and director of the crime hair, was wear- cap, long-black-stringy had laboratory positively identified car- pants dark and had a ing jacket, a rain tridge comparison scope, case use of a “might” if he mustache. He was asked matching firing pin its marks with those on again. him recognize person if he saw cartridges the eases of test-fired from the que- then Hughes “yes”. answered Counsel from pistol recovered Markland Officer independent from Hughes, your ried: “Mr. identify the vehicle. He could not bul- hap- what trying recollection and to recall let other saying than that was also .22 the De- pened evening, you say that would caliber, pointed badly but out it was too some in- person? fendant was that After identify being battered to a bullet fired terchange between counsel and further from the recovered firearm. “yes, he’s in questions, Hughes answered attendant, filling Hughes, The station room; attorney.” sitting by he’s testify was the last witness to for the State. preliminary progressed That is as far as the In the courtroom he identified the defend- by the Justice when it was aborted being up ant as held him one who had Justice presiding point, Peace. At that pistol a Woody’s Stop by pointing Truck over defend- indignant of the Peace became occasion, in his face. He recalled what particularly sus- for the ant’s manner dress wearing. He testified hearing defendant was “farce” and dis- pended the as a carrying participation any further qualified robber himself from pre- The bag Hughes procedures. white directed paper preliminary further liminary was later hearing problem reconvened be- Estelle deals Peace, fore another appearance prison garb Justice of at which of defendant in jury the defendant over appearance was bound to the dis- trial and not with his transcript hearing. trict court. Estelle рreliminary No re- Nor does preliminary hearing ap- inherently ceived at the error for a defend- last hold that it is The pears during in the record. ant trial. prison garb to wear case does not concern identification trial, Before the de- commencement that, objection, holds only in the absence of suppress fendant in-court moved to in identi- appeared fact that defendant by Hughes of defendant do clothing was not error. We fiable prison ground of de- the circumstances principles of Estelle disagree with appearance prelimi- fendant’s at the first but inapplicable them to the case be- find nary so tainted identification us, fore are with a in that we concerned due denied hearing and preliminary process. judge trial denied the motion. issue. strongly The defendant relies on statements 1974, State, 59, made in Frasier v. 262 Ind. triad Following the Gilbert-Wade-Stovall 77, 1092, States, 1968, 312 N.E.2d cert. den. Simmons v. United 390 U.S. 686, 686, 1247; 967, 19 S.Ct. L.Ed.2d Estelle v. Foster v. L.Ed.2d Williams, California, 425 U.S. 402; Alabama, L.Ed.2d 126. We have no disagreement L.Ed.2d Coleman v. *5 387; 1, 1999,
with either case.
399
26 L.Ed.2d
90 S.Ct.
U.S.
1972,
188,
Neil v.
409
93
Biggers,
S.Ct.
U.S.
In
upon
Frasier
v.
the court relied
Stovall
375,
401;
34
Brath
and Manson v.
L.Ed.2d
1967,
Denno,
293,
1967,
87
18
388 U.S.
S.Ct.
waite,
2243,
98,
1977,
53
432 U.S.
1199,
L.Ed.2d
recognized
which
a rule al-
order,
Supreme
140,
L.Ed.2d
in that
ready in
inquiry
existence that
*
*
* *
*
scope of due
struggled
Court
with the
has
“whether
the confrontation
process
against the admission
protection
was so
condu-
unnecessarily suggestive and
suggestive identifica
evidence derived from
irreparable
cive to
mistaken identification
procedures.
tion
he
was denied of due
[the defendant]
301-302,
unnecessarily
at
process
court,
law.” 388
In
the issue of
1972,18
(Bracket-
suggestive
S.Ct. at
L.Ed.2d at 1206.
identification has not
pretrial
material
ed
court
been
The
supplied.)3
Frasier
met head on.
matter
concluded
test to be whether the wit-
been
at
its
not
fringes.
touched
While
was,
fact,
delineated,
ness
in
totality
clearly
Fresquez
influenced
this court in
State,
197,
of the
manner indicating
circumstances in a
492 P.2d
indicates its
Wyo.1971,
very
a
acceptance
substantial
likelihood of misidentifi-
of the rule that
the court will
cation. The case held on the facts
look
totality
before
of the circumstances
there to be no substantial
likelihood of mis-
that is
surrounding
pretrial
confrontation
identification.
agree
We
the “totali-
suggestive
identi-
or conducive mistaken
ty” test and
but
applicable
find it
not with
fication. The Court had
it Simmons
before
the same
v. Den-
urged
States,
result
defendant.
supra
United
and Stovall
3. Stovall v.
e function of Stovall was to hold
Denno is one of three
which
On
cases
presence
lineups
pur-
trilogy
involved trial
poses.
for identification
of counsel rule in
of cases
applied retroactively.
The other two were United
was
It also
States v.
not
Wade, 1967,
218,
1926,
confirmed,
already recognized grounds of
388 U.S.
on
California, 1967,
attack,
unnecessarily suggestive
L.Ed.2d 1149 and Gilbert v.
that a claim of
263,
1951,
1178,
irreparable
in
mistak-
L.Ed.2d
conducive
any right-to-
lineups
independent
both of which the
held the
under
en
Court
identification is
totality
constitutionally
depends upon
consideration
to be
infirm and
counsel claim and
surrounding
in violation of
U.S. at
the accused’s Sixth Amendment
circumstances
it. 388
guarantee to
find the con-
have
assistance of counsel for
S.Ct. at 1972. Stovall did not
offensive,
past
his defense.
In each was a
there
indictment
frontation
in the absence
lineup
conducted
the absence
counsel.
counsel.
however,
no,
not,
isolated on its
supra.
unique
It did
consider an
Its principal
facts.
rape
victim
meeting
accidental
between
value
is a demonstration
extreme
police
at the
defendant-assailant
suppress
must exist to
circumstances that
station,
totality of the
looking
at the
preliminary
at a
circumstances,
suggestive
as a
confronta-
hearing.
identification,
tion conducive to mistaken
hand,
robbery
On the other
in the bank
objection was
particularly since that
Black,
case of
6th Cir.
United States v.
at the
raised
trial.
687, F.B.I. agents took two
412 F.2d
involving pre-
cases
many
There are not
Chicago
witnesses
to a
from Tennessee
hearing,
identification.
liminary
pretrial
pretrial
courtroom
during
hearing
Strickland, 1976,
113 Ariz.
State v.
defendant, not in pris
motion at which the
P.2d
was first identified
the defendant
request
garb,
present.
At the
victim
robbery
preliminary
of a
attorney yet
district
another witness was
hearing
having
after
failed twice to identi-
taken
pretrial
to observe a
motion
fy
lineups
photo
him at two “live”
or at a
again
present.
which the defendant was
had,
fact,
lineup,
singled
out another The court held there was no violation of due
altogether
lineup.
individual
at a live
Her
process
whеther due
acknowledged
(the victim’s)
to see the defend-
opportunity
process
depended
had been violated
when,
ant was
the incident
with two
before
circumstances, citing
the totality of the
others,
past
he walked
while she had no
States, supra. See also
Simmons v. United
individual
observing
interest
charac-
effect,
Lipow
to the same
United States
grabbed
teristics of each.
from
She
itz,
where wit
3rd
401 F.2d
Cir.
money pouch
behind and a
taken from her.
requested to sit in the court
nesses were
glasses
In the
her
struggle, she lost
There was held
during arraignment.
room
afterwards. At
could not see the attacker
process
to be no due
violation.
preliminary hearing,
Springle v. Fol
In United States ex rel.
jail
wore a
county
T-shirt and
seated
lette,
cert.
2nd Cir.
435 F.2d
den.
alone with counsel at the defense table.
*6
Zelker,
980,
Springle
sub nom.
v.
U.S.
then
identify
She
found she could
de-
1214, 28
331,
L.Ed.2d
it was said that a
S.Ct.
certainty.
fendant with
had been in-
She
necessarily
totality of circumstances
means
formed that the defendant had confessed.
that the entire trial must be scrutinized to
case,
In the Strickland
the Arizona Su-
petitioner
see
re
whether on balance the
preme
“vеry
Court found there was
sub-
hearing.
ceived a fair
Clemons v. United
irreparable
stantial likelihood of
misidenti-
27,
States, 1968,
U.S.App.D.C.
408 F.2d
fication,”
States,
citing
v. United
Simmons
964,
1318,
1230,
cert. den. 394
S.Ct.
U.S.
971,
supra
at
at
19 L.Ed.2d at
S.Ct.
preliminary
hear
involved
L.Ed.2d
1247, and
the conviction even
reversed
ing
but not un
by witnesses
identification
though defendant had confessed to the
(no jail
us
der
before
the circumstances
crime. The court
on to hold that it
went
concurring opinion
handcuffs).
garb or
The
say
“positive
could not
the witness’
expressed
Judge
of Circuit
Leventhal
identification was harmless and did not con-
only
not
must assess
view that the Court
time,
At the same
tribute
the verdict.”
surrounding a
the totality of circumstances
proscribe
the court did
identification
the totali
particular
but also
identification
preliminary
for the first time at
hear-
made
bearing
likelihood of
ty
proof
of trial
ings
emphasized
suggestibility
would in
approach
misidentification. The
preliminary hearings
per
of
does not
se
the harmless
identification,
overlap
effect create an
with
taint the
in-court
subsequent
Wade,
Williams, 1976,
Supreme
error rule. The
Court
citing
v.
113 Ariz.
State
supra (footnote 3), 388
at
pretrial
545 P.2d
where the
idеntifica-
of
tion was
remanded for a determination
police
of a man manacled to a
an
(not
officer
at a
preliminary hearing). We
“whether the in-court identifications
whether,
source,
conclude that case to
which must
independent
be one
entirely to one side.* Mr. Justice
guilt
of
evidence was
event,
introduction
* *
for
the Court
opinion
BLACKMUN’S
*.”
harmless error
correctly
pitfall and
carefully avoids this
preceding
in the
cases cited
The federal
indicia of
appropriate
relies
cases,
many other
do
paragraphs,
two
itself.
the identification
reliability
place some
Digest System,
West’s
* * *”4
questioned pre
whether the
significance on
2254-55,
taken
signifi-
testimony is
identification
While
apartment.”
frequent
his
visits to
evidence,
testimony
is still
such
cant
(Footnote omitted.)
evidence, and,
presence of
unlike the
counsel,
goes to the
is not a factor that
concurring opin-
Then
in his
Justice Stevens
ad-
“integrity”
the
very heart —the
ion:
—of
versаry process.
“Second,
admissibility
evaluating
in
the
“
the
testimony it is
can both cross-examine
‘Counsel
particular
identification
argue in
other evidence
put
sometimes
to
identification witnesses
difficult
*
375], Properly
34 L.Ed.2d
part:
pertinent
4. The footnote
“
however,
analyzed,
be rele-
* * *
facts would
such
not, however,
These facts should
error,
any,
vant
whether
to a
admissibility
support
be considered to
the
testimony
admitting
was harm-
identification
eyewitness testimony
applying
when
the cri-
supplied.)
(Bracketed material
less.”
Biggers
U.S.
teria identified in [Neil
[409
v.]
causing
summation as to factors
doubts
tion that he had
pay
better
attention: “I
accuracy
as
the
to the
identification— noticed that he was a
type person,
nervous
including
any suggesti-
reference to both
bit,
began
and he
moving a little
so I did
in the
bility
procedure
identification
and what he said
quick.”
real
any countervailing testimony such as ali-
respect
With
of the accuracy
factor
”
bi.’ Fn.
2252-
U.S.
prior
criminal,
of his
the
description of
53,
tainty
confrontation,
demonstrated at the
parts
nificant
description
at
time between the crime and the
preliminary hearing
scene and
had to do
Against
confrontation.
these factors is
hair,
with
clothing,
stringy
the head-
weighed
corrupting
to be
effect of gear
weapon
and the
he carried. There was
suggestive
identification itself.” 432
suggestive
no
prelimi-
at the
last sentence which
in Neil
appear
did not
defendant was not in the same
wear-
Biggers,
gives
ing hat,
us
adorned
carrying pistol,
because
guide to what to do with the factors after-
wig.
insignificant
There
vari-
were some
we ferret them out.
description of those
ations between the
preliminary
items at the
and the trial but
then,
factors,
we see
Applying those
suspicion.
surely
exactness would
create
Hughes
adequate opportunity
had an
to
Borrowing
approach
of the Court in
defendant, perhaps
view the
a minute and a
Manson,
plays
part
that it
no
recognition
half or so. He was no casual observer but
reliability
in our
analysis
point,
at this
unforgettable
the victim of the
and danger-
ap-
of the defendant’s
experience
ous
of being confronted
pearance
hardly
crime
at the time of the
appear-
individual armed with a formidable
by the
found in
undermined
corroboration
ing weapon.
Hughes
When
was told to
the other evidence of defendant’s dress and
over,”
“hand it
opportunity
he had further
other accouterments related to him at the
to observe the
proceed-
defendant while he
time of arrest.
ed
register,
mоney
cash
removed the
placed
it on the
for
counter
The level of
certainty demonstrated
pick up.
that,
After
was re-
adequate. The testi-
confrontation
quired
lay
appears
on the floor.
It
rea-
hear-
mony
preliminary
the terminated
*8
under
sonable to believe in that time and
ing
uncertainty. Through
no
no
indicated
conditions,
those
the defendant’s facial fea-
witness,
oppor-
of the
the
no
fault
State or
placed
tures could well be
record within
on
the witness’
tunity to test
afforded
memory. Although
the witness’
defendant
certainty through cross examination. No
wig,
opportu-
wore a
he had mask. The
no
that,
light
in
showing
was made
whatsoever
nity
present.
to observe was
discussed,
suggestive
the
just
of the factors
corrupted the tes-
way
the
question
any
There is no
but that
defend-
identification in
Hughes’
handgun
Hughes.
ant had
with a
witness
While other
timony
attention
of the
considered
posi-
guilt
leveled at him.
was in such a
evidence of
cannot be
defendant,
the role of
the
the
stage,
abrupt
we can consider
this
followed
this
out-
particular witness as far as identification is
inappropriately
burst of the
and his
Justice
attempted
prosecutor
piqued
proceeding
The
the
concerned.
from
withdrawal
way
persuade
to
every
gave
opportunity
reasonable
he could
at that
State no fair
to hear the rest
the relia-
juncture
the Justice of the Peace
of
to further demonstrate
evidence,
testimony
nor
bility Hughes’
not
further
of
of
was the
identification
opportunity
that of
witnesses:
to estab-
Hughes but
other
defendant afforded an
the identification.
unreliability
lish the
of
Honor,
think,
I
Your
“BAYLESS:
Hughes’
the defendant as
of
recollection
you’ll wait
listen to the evidence
up
gun
seen when he
being held with a
indepen-
find that there’s alot of
you’ll
unchallenged.
in his
Manson
face stands
basis for the
and so
dent
identification
suggestive
makes it clear
confronta-
that
prema-
think the
are
Court’s observations
per
tion does not
command the exclusion
se
ture and I think
that
Court should
Further,
testimony.
of the
identification
listen to the
of the evidence.”
balance
Manson,
considered a “draconian
reversal is
There is no indication that
the State was
sanction,” for
cases in which
identifica-
any
attempting
way to influence the
unnecessarily sug-
tion is reliable
despite
Hughes.
testimony of
gestive procedure:
pretrial
The
confrontation
“ * * * Certainly, inflexible
of
rules
A
necessary proceeding.
case was a
funda
exclusion,
than
rather
frustrate
may
hearing,
part
preliminary
mental
as
been
promote justice,
not
viewed
have
trial,
presence
well as a
is the
de
unlimited en-
recently by
this Court
attire, he
Regardless
fendant.
his
can
thusiasm.
[citing
cases.]”
identified
virtue of his role
usually
367 requiring an plain must be deemed error direction. See footnote 2. The individual 49, W.R.Cr.P.5 automatic reversal. Rule had in his apprehended possession was a error can be Before federal constitutional pistol, a money in the same amount as harmless, held the burden is State stolen, wig, wearing green coat, a a demonstrate and the court must be able to apprehended flight, and was all as a beyond declare a belief that it was harmless result of it whatever was that the station Chapman a reasonable doubt. v. State of attendant policeman po- told the before the California, 1967, 18, 824, 386 U.S. 87 S.Ct. liceman getting wasted no time out after 828, 705, L.Ed.2d A.L.R.3d 1065. Moreover, Hughes’ testimony criminal. There are but few constitutional violations was independent substantiated other evi- so basic never that infraction can be classed dence, cartridge e. was found on g., a case as harmless error.6 We cannot find that the floor which matched stop truck of the Supreme Court United States has defendant. weapon taken from the held that the substantial likelihood of mis- prison garb showing up justification identification is itself to de- hearing preliminary handcuffed at a could indicated, plain previously clare error. As corrupt not all evidence. that decisive Wade, supra, in United the Court States be established circum- can Identification recognized harmless error to be available. jury stantial evidence which then becomes California, Foster v. remanded question. State, Wyo.1977,562 Johnson v. for a determination of whether there was P.2d 1294. applying harmless error. We turn now to standard, and will conclude there can we have examined the total After error,
be no doubt that
existed at
circumstances to determine if there was an
all, was harmless.
identification,
unduly prejudicial pretrial
totality
an evaluation
of sur
The courtroom identification of the
circumstances,
rounding
we then examine
preliminary hearing
defendant at the
the facts for harmless error. What was the
significance.
little
The defendant was not
identifying
effect of all the evidence
wearing
clothing
the same
that he was
person
defendant as the
who robbed
wearing
Woody’s
Stop
at the time
Truck
Woody’s
Stop?
Truck
Reason indicates that
wearing
was robbed. He was not
the same
there
between
must be a causal connection
clothing
robbery
kind of
the time of
at
“
irreparable
‘substantial
likelihood
he
wearing
in the courtroom the
”
misidentification,’
Biggers, supra,
Neil v.
time of the trial. He was convicted because
against
and the
viewed
guilty verdict as
against
evidence
vast circumstantial
circumstances, Simmons v.
totality of the
Hughes’
him.
is
significant
What is
de
States,
Hughes’
supra.
United
When
de
scription
he
at the scene of the
of what
saw
sequence
with the
scription
coupled
nothing
crime
like what he
which was
saw
defendant,
leading
capture of
events
at the
or the trial. He
preliminary
in the car from which the
coat,
articles found
in green
described an individual
dark
point to his
circumstances and inferences
pants,
long-stringy-hair wig,
with a
wear
exited,
having
there can
no doubt of
ing dark
headgear
pointing
pistol
guilt.
have
came,
Hughes
him. A
The witness
could
been
policеman
apparently
positive
that time
less than
doubtful wheth
did little more than state
even
heading
northerly
robber was
off in a
er the
table
defendant seated at defense
49,
Arkansas,
example Payne
5. Rule W.R.Cr.P.:
6. For
v. State of
844,
(coerced
78 S.Ct.
L.Ed.2d 975
“(a)
Any error, defect,
Harmless Error.
ir-
Wainwright,
confession);
372 U.S.
Gideon
regularity or variance which does not affect
93 A.L.R.2d
L.Ed.2d
rights
disregarded.
substantial
shall be
Ohio,
counsel); Tumey
(right
State
“(b) Plain Error. Plain errors or defects
71 L.Ed.
affecting
may
rights
substantial
be noticed
(impartial
judge).
A.L.R. 1243
although they
brought
were
to the atten-
tion of the court.”
Same as Rule
F.R.Cr.P.
*10
robber, and still the defendant’s
Defendant claims error in failure of
was the
robbery
outside
role in the
would lie
guilt
on identi
jury
the trial court to instruct the
The
reasonable doubt.
perimeter
of
The
failed to
testimony.
fication
in
view we take of identification
object
give
to
judge
to refusal of the trial
in
case
as
out
up
can be summed
set
instruction;
the offered
we will not con
State, supra:
Johnson v.
review,
State,
Raigosa
Wyo.
sider it on
“ * * *
accused,
Identification
an
of
brought
unless it can be
P.2d
therefore,
positive in order to
need not be
doctrine,
plain
undеr the
which we
error
need
obtain
conviction. The witness
exceptional
will
cir
except
not exercise
belief,
only testify
opinion
is his
or
that it
cumstances,
State, Wyo.1977,
Hampton
judgment
that the accused committed
recently this court
Only
558 P.2d
has
504.
goes only
positiveness
crime. The lack of
request
confirmed
that a
for an
position
its
his testimony.
of
weight
[Cita-
to
objection
instruction
a distinct
without
tions omitted.]
instruct, is insuffi
failure of
to so
the court
general
“The
to estab-
regard
rule with
cient
to
court’s review
allow this
stated in
lishing
identity
accused’s
is
State,
alleged
Wyo.1977,
error. Montez
Robbery
p.
77 C.J.S.
508:
§
369
contradicted,
ness of testimony, whether
handcuffed
prison
and in
clothing while the
prejudice
evidence,
shown
and to victim of the crime was attending, tainted
consider all the facts and circumstances in the victim’s identification testimony so that
court,
through
case. The
several in-
the trial
required
suppress
court was
structions,
the jury
admonished
as to the
testimony.
exclude such
Failure to do so
of
duty
prove beyоnd
the State to
a reason-
timely
that court after
motion and further
able doubt that
the defendant committed objection
alleged
the trial is
be error
the crime charged. It is not error to refuse
of such
magnitude
compels
constitutional
as
requested instructions which are otherwise
reversal.
instructions,
covered by
though
other
even
Although this court has had occasion in
principles
embodied are correct. Ben-
past
to discuss
identity
the issue of
as
State, Wyo.1977,
son v.
Affirmed.
charged,
yet
we have as
not addressed this
presented.
issue
hindrance,
I feel this no
McCLINTOCK,Justice, dissenting.
as the
Supreme
United States
Court has
spoken
I
subject
believe that the
on this
with
majority
basically
force. That
pertinent
cited the
court
authorities.
I differ in
has established sufficient standards to
application
cover the
principles
beginning
there set
issue in a line of cases
forth
Wade,
to the
my
facts of this case.
with
388
United States
U.S.
opinion
(1967),
the identification of
87
defendant as
S.Ct.
Gil-
impermissibly suggestive and of such im- 1951, (1967) and Stovall L.Ed.2d portance prosecution’s to the case that thе Denno, U.S. witness permitted should not have been (1967). trilogy This L.Ed.2d 1199 of Wade- (cid:127) me,
give this testimony. To there has been other spawned Gilbert-Stovall has cases a denial of process due which under estab- which, continuum, provide considered as a lished principles special and the facts of this framework which to weave answer. case could have affected outcome there- It is true involved that Wade and Gilbert of. I would therefore reverse and remand the right post-indictment to counsel at line- the cause for new trial. Stovall, ups, together but they provide At a preliminary hearing held November a test to pretrial determine if a identifica- Garfield, 18 before Justice of the Peace tion violates process due because it is un- defense requested clothing civilian for necessarily impermissibly suggestive. Campbell but. was refused. He was Wade, quote from brought the hearing into room a member at 1933: “ * * * force, of the county prison garb sheriff’s compelled confrontation [T]he only person handcuffed. He was the by the and the the accused State between the room objection thus attired and оver victim or a crime to elicit witnesses to counsel that any in-court peculiarly rid- identification evidence would be inherently unreliable, tainted and dangers dled with innumerable and varia- by Hughes identified as the robber. might seriously, ble- factors even which The objection was renewed and Garfield crucially, derogate from a fair trial. The suspended then hearing, disqualifying vagaries are eyewitness involvement, himself from further and de- well-known; the annals of criminal law scribing procedure “farce,” as a are rife with of mistaken identi- instances “mockery justice,” by * * * reason of the con- major fication. A factor con- duct toward the defendant. tributing high incidence of miscar- riage justice defendant frames the constitutional from mistaken identifica- issue as a process denial of due law in degree suggestion tion has been the that his compelled presence prelimi- at the pros- inherent in the manner in which the nary hearing of November presents while ecution to witnesses suspect (Footnotes Supreme The Federal Court has allowed identification.” pretrial
for exigent circum- omitted) procedures only such Stovall, stances, supra, where the vic- as in a claimed violation The determination of tim, witness, hospitalized of a of law in the conduct process of due condition. It was a situation where serious depends “totality confrontation ” the defendant be imperative it was surrounding it. . . the circumstances *12 immediately shown to the victim before Denno, 302, 87 supra, Stovall v. 388 U.S. possibility precluded any of death identifi- 1972; subsequent whether the in- S.Ct. cation. excluded, court identification should be as determination, Having this I move confrontations, made these by pretrial tainted question: to what I feel is the next depend will on whether or not the latter “independent origin.” had an Whether, considering “totality 2. California, 272, circumstances,” notwithstanding Gilbert v. 388 U.S. at and 87 will identifica- taint, S.Ct. 1951. The identification this initial the in-court error, “independent excluded or its admission determined basis” or tion had sufficient attenuated, or “procedure impermissibly sug- if the was so “origin” that the taint was passes to find gestive give very dissipated, sufficiently as to rise to a substantial constitutional irreparable likelihood of misidentification.” muster. States, 377, Simmons v. 390 United U.S. 188, In Biggers, Neil v. (1968). 88 19 1247 I S.Ct. L.Ed.2d faced with 34 when L.Ed.2d (1972), seе the test as follows: issue, identity the court noted 1. The court must determine whether question that needed to be answered identification, pre- the initial here at the whether, notwithstanding suggestive- 18, 1976, liminary hearing of November ness, the identification was reliable. In this “unnecessarily” “impermissibly
was so regard, Biggers presented several factors suggestive,” “give that it would rise to a considered, that should be and listed them very substantial likelihood of irrevocable opportunity follows: the witness misidentification.” crime; to view the criminal at the the wit- attention; degree accuracy ness’ I presence would hold that the mere prior descriptions; certainty the level of prison the defendant in clothes and hand- confrontation; witnesses at and the cuffed, preliminary hearing, at a where one the crime length of time between and purposes is the identification of the confrontation. 409 U.S. victim, alleged inherently, robber proceed I analysis. to this unnecessarily impermissibly suggestive. and This effect has noted in Foster v. been A. Opportunity to view. California, lighting There was no testimony as to (1969), court, citing L.Ed.2d 402 where the stop, other condition in the truck or around Stovall, supra, ups,” noted that “show Mr. than the statement made practice, essence, one-person lineup, of a robbery oc- that it was “dark” when the are suspect widely and condemned. I feel curred. This was around 2:00 a. m. it logical step that the next is also true: one-person up, that a show where per- that The victim claimed that he did initially handcuffed, son is accompanied by police- alleged not see the robber come in—he man, is, and dressed in prison garb heard him. to “hand it requested When be, must inherently suspect. Justice of over,” quick” he stated he acted “real Peace prelim- Garfield noted as much at the upon request then laid on the floor. He inary hearing on when leave; November never saw the robber he heard he remarked the witness would natu- lapse time go. him He testified the rally identify person in such a situation. from the one to one and one-half minutes Garfield then continued the This com down. entry initial until he laid removed he acted participation. tradicts, feel, himself from further his statement was, noted, “afraid,” “fearful,” Later he reduced the time to one Hе as we quickly. automobile; enough minute. He never saw an he but “calm” to know what the rob- “afraid,” enough Michigan he was but calm ber was dressed like. The stated Su- Anderson, preme People Court noted in know the robber and what he wore. He (1973), 389 Mich. 205 N.W.2d looking testified he was out the window and Anastasi, citing Applied Psycholo- Fields of approach, saw the robber less than one “ gy, (1964), [cjontrary ‘. . . away. block He later backed off this testi- folklore, legal strong emotion at the time him walk mony, and claimed he did not see report of observation or tends distance, subsequent up, except very for a short ” to increase the probability error.’ could not tell if he arrived on foot or car. Hughes’ contradictory, I statements are he did response see him feel, the reliability of “No, and this fact weakens approach foot, sir. replied, he his testimony. Yes.” His opportunity to view the robber *13 fair. description. Accuracy prior C. previous The in court his
B.Degree of attention. victim noted pre- identification of the defendant at the It is difficult to chronicle this factor. specifically trial. He remembered that he The victim that he noticed the testified uniform,” green wore a “kind of was hand- type person.” robber was a “nervous He accompanied by cuffed and a sheriff. jacket (“green”) was certain of the al- He claims he was shown at least “50” though he had earlier described it as dark. shots, mug but no one substantiated this. coat, spot He noticed a dark but this He was never with the defend- confronted was never in confirmed the record at trial ant after the crime until the November as fact. He “long, described the hair as 1976 preliminary hearing. At that stringy” Later, and dark. when shown a he wearing a dark described the robber as robber, he wig allegedly worn having “long-black-stringy color “skullcap” certain that he wig was the because hair”; on, pants, dark jacket “a rain he one, thought wearing the robber could be also had a mustache.” He was “sure” of his but he It was the wasn’t sure at the time. man. “same,” Later, response however. to a stated, question, direct he “I didn’t see his him, gave descrip- a As testified to he scene,
hair at the
he had a hat on at the
robbery,
tion
after the
police
dark;
time.” He described that hat as
testimony
respond-
mentioned in the
gray
officer testified it was a black and
ing
investigating
and
officers. He omitted
preliminary hearing
checkered hat. At the
and of the hair
mention of the mustache
“skullcap”
the victim described it as a
him,
length,
asked
even
because no one
dark color.
No
in the record
they
though at trial he was “certain”
were
provides a clear answer.
the same.
He
pistol, describing
was “sure” of the
D. Level
witness at
certainty
Later,
“lugar
pistol.”
as a
type
he used
[sic]
confrontation.
“revolver,”although
the term
he
he
said knew
“sure,”
firearms,
always
little about
and understood the
The witness-victim was
point,
right
difference. At one
he referred to the
was the
“certain” that the defendant
weapon
He was
on Novem-
“luger type
as a
revolver.”
him
man—the man who robbed
a dark
he was
though
sure it was the
it “was
ber
confused
same because
1976—even
color,”
acknowledged
hat,
description
that 95%of all
but he
about
in his
ranging
small,
He
dark
weapons
dark,
skullcap
of this nature are that color.
from a
small
having
hat,
a mustache
described it as
though
described the robber as
even
the officer
checkered;
5'8",”
140-
he was confused
being
gray
and
about
about
black and
“5'7" —
jacket; about
pounds.
weapon;
in the record are the
about
about the
Never
hair;
time;
his reactions
height
given.
of the defendant
even
weight
“fearful,”
between;
“afraid,”
unspecified
the event. He
at some
shots”
time
but “calm.”
there is no other substantiation of this sto-
specifically
ry,
the officers who testified
hardly appears
He
certain
to me to be
knowledge of this al-
denying any and all
anything.
about
this certainty
He claims
leged fact.
briefly viewing
wearing
after
a man
hat
hair,
description,
long
having
long
of some
3. The
is the
third factor to be considered
color,
pants.
coat of some
and dark
The
suggestive identi-
“corrupting effect of the
came at
only mention
a mustache
Brathwaite, su-
fication itself.” Manson v.
preliminary hearing of November
pra.
court,
and at
identification in
trial.
Manson,
discussing
Biggers,
Neil v.
after
proceeding
At neither
did the defendant
Denno,
the oth-
supra,
Stovall
alleged rob-
clothing anything
wear
like the
authorities, and,
adopting their
er
after
addition,
this factor
ber.
feel that
is
follows,
stated as
analysis,
If
primary.
not tо be considered as
at 1912:
distinctive level
strength
should
as-
reliability
“We
therefore conclude that
it,
signed to
I feel it should be discounted
linchpin
determining
the admissi-
appreciated.
than
the effect
rather
Once
testimony for both
bility of identification
suggestive
circumstances has come into
pre-
post-Stovall
confrontations.
victim,
play,
by repeated
the witness or
are set out
factors to be
statements,
considered
reinforcing
may simply be
Biggers.”
points
own error. As Justice Marshall
out
*14
98,
Brathwaite,
130-
Manson v.
432 U.S.
This is a factor
in Cole-
recognized
also
131,
(1977),
2243,
97 S.Ct.
are so Insofar as the claimed vio- harmless, requir “not they may be deemed rights lation of his under the Federal Con- the convic ing the automatic reversal of stitution, Chapman the rule announced in is 22, 827, tion,” at but 87 S.Ct. U.S. binding upon equal- I consider that it is us. 23-24, p. 828: pp. continued at S.Ct. pertinent ly rights asserted under our “ * * * prefer approach We of this state constitution and that test must deciding er- Court what harmless applied to the facts this case. Fahy ror in our recent case v. Connect- apply principle would also icut, 85, 229, 11 L.Ed.2d U.S. “ ‘[prejudicial error is such error as in all 171. There we said: ‘The is probability produced must have some effect possibility whether there is a reasonable ” trial,’ the final result of the State complained might the evidence Reddington, 80 125 N.W.2d S.D. Id., have contributed to the conviction.’ (1973), Pirkey, quoting from State * * * 86-87, An in turn which cited S.D. 124 N.W. relevant evi- admitting plainly error 336, 178 P.2d Britton, State v. 27 Wash.2d possibly jury dence which influenced Supreme Court (1947). reh. denied cannot, under adversely litigant to a pertinent Washington later makes Fahy, be conceived of as harmless. Cer- Martin, 73 Wash.2d observation in State error, error, in ille- tainly constitutional denied, 429, 437, reh. cert. 440 P.2d evi- admitting highly prejudicial gally 855, 21 denied 393 comments, oth- dence or casts on someone L.Ed.2d 773: prejudiced by er it a person than “ * * * appellate When the court It burden to show that it was harmless. say unable to from the record before it original is for that reason that com- whether the defendant or would would put mon-law harmless-error rule the bur- not have been but for the error convicted beneficiary den of the error either court, committed in the trial then the *15 prove injury that there was no or to harmless, may error deemed and be erroneously suffer his reversal of right the defendant’s to a fair trial re- little, judgment. obtained There is quires that the verdict be set aside and any, difference between our statement trial.” granted that he be a new v. about ‘whether there Fаhy Connecticut jury whether the is not question that the evi- possibility is a reasonable but whether the choice made a sustainable might have contrib- complained dence choice has or could process making requiring the uted to the conviction’ and evidence or improper have been affected error to beneficiary of a constitutional proceedings. in the irregularity some other prove doubt that the beyond a reasonable supra; Commonwealth Pirkey, See v. State complained error of did not contribute to (D.C.M.D.Pa.1965), Cavell, F.Supp. We, therefore, do the verdict obtained. 1004, 86 S.Ct. rt. denied 384 U.S. ce meaning of no more than adhere to the 1921, L.Ed.2d cert. denied 384 U.S. hold, as we now Fahy our case when we 1021. 16 L.Ed.2d do, constitutional that before a federal police The evidence at trial shows harmless, can the court error be held report responded quickly officers must be able to a belief that declare in his robbery. officer located and One beyond harmless a reasonable doubt. pulled patrol car followed a car which appellate ordinarily Whilе courts do not went into an out from a street curb and original applying have the task of such a standing outside courts, He observed a man test, alley. all it is a familiar standard to side who then passenger’s the car on the adoption provide and we believe its will search, his standard, although sight. ran He continued more workable out of contact, him again as that aimed then saw achieving losing the same result and Anderson, again companion People when his officer had contains an the man him in stopped placed custody. and psychol- excellent discussion of law and car, ground near the alongside ogy On testimony sug- of identification seen, of which this man had been the offi- gests dissipation of the taint neces- wig, placed sary proof independent cers found a in evidence and for on an basis must concerning Hughes which previ- proven by convincing testified as clear and evidence. ously recounted. In the car perhaps go adopt and on the We further when we ground around the car there was Chapman (as found rule stated in I think the currency, does), considerable amount of and a .22 majority but I am unable to declare a pistol caliber also found front belief that was harmless the identification seat pistol of the car. This was linked to beyond a reasonable doubt. testimony robbery by state ex-
pert ejected that an firearms who said
cartridge room where Hughes found
had been forced to lie down and a bullet counter,
had been shot into the had been
ejected from pistol. may We therefore evidence,
conclude that excluding there was by Hughes in-court identification Denius, Homer R. DENIUS Grace E. defendant, from which the jury could have Co., Appellants d/b/a Denius Cattle found defendant to have been the robber. (Petitioners below), However, is not what the jury might have done in the absence of the testimony. tainted TWELVE, INC., T R and the State Engineer Wyoming, the State conclusion, Appellees (Respondents below). greatest importance in tying the man first discovered beside that car which had No. 4925. tangible relating evidence to the crime to Supreme Wyoming. Court of the man who had committed the robbery. mayWe not properly jury surmise that the Jan. ignored Hughes’ testimony, unsatisfactory was, as it say and I am unable to beyond
identification was harmless reasona-
ble pretrial doubt. The identification was
unnecessarily impermissibly suggestive.
Measuring the evidence in this case in ac-
cordance suggested with the factors in Neil Biggers, supra, authorities, and other
am unable to say subsequent in-
court identification independent had an ba-
sis, and hence submit it was error to admit suggestive same. The per- influences
meate deeply for us too
save it. agree gener- While I that the law
ally places questions identity in the prov- State,
ince of the jury, Wyo., Johnson v. (1977),
P.2d 1294 when this
identity tangled becomes conduct such here, duty occurred this court
closely to inspect rights lest constitutional meaningless.
become