*1 26, 1968.] Bank. Jan. No. [Crim. Respondent, EDWARD PEOPLE, Plaintiff
THE Appellant. CARUSO, Defendant JOHN *2 Appellant. for Defendant and Parsons Russell E. Attorney General, James, Lynch, William E. Thomas C. Bradley Stoutt, Deputy Attorney General, A. Assistant and Respondent. Attorney General, Plaintiff and Defendant appealsjudgment MOSK, from a of convic J. finding guilty him of first upon tion entered degree robbery. verdict (Pen. 211.) Code, § did not have assistance At the guaranteed right has held to be counsel, a since been to the United and Fourteenth Amendments the Sixth v. (United States Wade U.S. States Constitution. 218 ; Gilbert v. 1149, 87 S.Ct. L.Ed.2d 1926] [18 California 1951].) L.Ed.2d (1967) 388 U.S. S.Ct. however, decided, have heretofore the rule We identifi Gilbert, requiring exclusion of in-court and Wade identify by displaying an accused to tainted cation counsel, unless the absence of his ing before trial given pros procured, is to be waiver has been an effective Feggans (1967) 67 Cal.2d application. pective pre 21].) this is a Cal.Rptr. Since 444 [62 may invoke an case, and Gilbert before Wade concept exclusionary he must demonstrate right infringed his in such unfairness “resulted 293, 299 Denno (Stovall v. process of law.” Caruso 1199, 1205, 87 S.Ct. Defendant unfair, showing lineup was that the made a has People’s to the case. in-court identification essential tainted harmless that the error was fail to demonstrate 18, 24 (Chapman California judgment must therefore 824]), and the 710, 87 S.Ct. be reversed. morning February 23, 1965, Seeley, an On Olen job employee momentarily left store, at a Robert his through matches in his car. As he walked seek some store parked hardtop
parking black two-door Ford lot he noticed nothing inside; he detected unusual about with a man or the vehicle. day, p.m., Seeley
Later about 12:45 Robert But- kus, manager, left the store the store to make a routine deposit just receipts. Butkus had inserted the ignition key wagon of his station when he heard a car pull up him, Seeley behind both he turned to look at immediately car halt it. The slowed to a behind the station wagon and blocked its exit from the store lot. complete stop the car passenger Before came to a door opened, wearing zip-up and a man dark jacket, snap hat, brim bridge a handkerchief over nose, of his approached quickly wagon. the driver’s side of station As advanced he drew his hand from the jacket, of his inside disclosing appeared pistol. what to be an automatic profile point Seeley observed the
At this driver of the ear, length “saw” him. Both testified that and Butkus seconds. five to six Both described the view was driver as wavy complexion. hair and a dark big, with dark Neither *3 although clothing, describe driver’s victim could the Butkus wearing thought a T-shirt. Their pri- he was attention was quite naturally, armed, marily focused, on the masked man moving them. When toward the masked man who was reached give wagon, ordered the station he Butkus to him money the keys quickly complied car. Butkus to his the with both response orders, and in to a further demand and Seeley he down on the seat while the robbers crouched drove off. The episode, in bag total seizure of a white that con- receipts, had tained the store’s taken no more than 30 Seeley immediately Butkus and seconds. reentered the store police. Officers and called the arrived within minutes, about p.m. 12:58 police Later that afternoon the located the black Ford approximately four robbery blocks from the scene of the in a parking area a laboratory. reserved for commercial As the laboratory’s production manager, Dulin, Tom returned from lunch annoyance he discovered to his just that a car had parked private space. in attempted his explain He to parked
was illegally off, mumbling but the hurried driver that carrying man he would later. He noted that the a be back physical paper brown sack could recall but not the man’s appearance. parking Dulin him area, watched the run leave Valley nearby intersection, diagonally across Street to Victory passed sight. then down Boulevard until he from police ear, illegally parked police informed and the vehicle, was found have been ascertained which to stolen, robbery. black used in Dulin was the Ford At trial when lunch, unable to remember he had returned from police apparently records did not reflect the time he placed telephone call. laboratory, and
Officer Ysmael Torres lived near the same question report for day on the he left his home time to proceeded p.m. police on class at the station. As he north Valley very home, Street, near his he watched a jacket alley an emerge brownish below the area object bag laboratory, place for a white resembled passenger jacket, underneath his and enter the side car pro- men car, it, him. with two then front of The Victory Valley Street and Boule- ceeded of to intersection regular stop, and then turned down vard, made a boulevard turning off. Victory for a short distance before Boulevard for than These attracted his attention no reason other events having “appeared pedestrian be some conversa- front, although car tion” the driver of the the officer noted the license could overhear its contents. He number upon learning reported he car and investigation. learned that this number license family assigned to defendant’s car. number had been person observed Dulin Since movements person substantially from those of observed differed two men could not have seen Torres, is evident that the it or events. At trial Dulin was uncer- same individual the same observed, person features Torres also tain of the physical pedestrian recall traits of the who was unable to initially hand, his On attracted attention. the other “big in front him driver the car described the Torres haired,” testify “dark he did not shouldered” and but At most, Torres’ driver defendant. observations vicinity place car in the Robert tended *4 approximate the crime. at the time of store foregoing summary testimony, From mani- found in the victims’ in-court fest must have that persuasive evidence that defendant was the robbery of the car. driver Defendant was arrested in night his home on the robbery, placed and the next lineup he was in a victims, with four other men. Both Seeley, Butkus and identi robbery fied defendant Seeley as the driver of the ear. further identified defendant as the man in the car in the Robert Hall parking lot briefly who had attracted his notice earlier that morning when he went to his car to retrieve somematches. But the uncontradicted of all those who viewed lineup that it demonstrates was cir conducted under only suggested cumstances which could have to Butkus and Seeley charged that defendant was to be with the imposing stature, offense. Defendant is of being 6 feet inch tall, pounds. weighing is Italian descent, with a very dark complexion, and wavy has dark hair. The two vic tims, in charge the officer investigation, Sergeant Allen, and defendant all that lineup testified the other participants physically did not They resemble defendant.1 were not his size, complexion, not one had his dark wavy none dark During Seeley hair. both and Butkus had noted large the driver’s dark complexion, size and and, they if were anyone lineup, choose defendant was singularly marked lineup for identification. We can conclude that suggestive “unnecessarily irrep conducive to 1On this Robert Butkus testified point as follows: "Q. And did you in that in that Mr. see Caruso? A. I lineup did. Was Tes, Q. there anyone else that looked like him? lineup A. That looked like him? Q. Tes. A. gave No. I would have to no.” say Olen Seeley description: ”Q. . . . you say you went to a station and saw Mr. Caruso in A. Q. Tes. And how lineup? many other were that people lineup? A, About four more. Q. Anyone else who looked like Mr. Caruso? investigation, A. No.” Officer who conducted Allen, was unable recall Sergeant, And makeup ”Q. thereafter lineup. were you present, Yes, some sort of a "where Mr. Caruso lineup was present? A. Q. sir. And do you recall how many other people were that lineup? A. Besides Mr. Caruso? Q. sir. A. I Tes, believe there were four. Sergeant, Q. Isn’t it fact, that there was no one else that lineup height, weight, who was actually of the same and complexion as this defendant? A. is not No, Q. a fact. That is not a fact? A. Not your Q. whole statement. There nobody who was as dark as Mr. complected Caruso? A. I would as I say, recall, probably not. Q. Do you remember, who actually, A. I lineup? No, don’t. Q. you any Do have record as to who was there that looked like A. I defendant? ant.” don’t know that anybody else looked like this defend had this Finally, “Q. recollection: Was there anyone else in weight, who was of your size and approximate with weight dark features and dark hair? A. size and My dark features and dark hair? Tes. A. Q. No. not.” Definitely *5 (cid:127) (cid:127) (Stovall v. Denno mistaken identification.’.’
arable 1199, 1206]), and we makeup deprived grossly its unfair defendant of hold that (Stovall Denno, supra.) process of law. recog- determination, than reaching we do no more In unfairly Supreme Court, that States nize, United as did the brought past lineups too often about have in the constituted th¿ United States Wade the innocent. conviction of 228-229 1158- (1967) supra, 388 U.S. major “A factor Supreme observed: contrib- 1159], Court justice miscarriage of high incidence of from uting to degree suggestion has been mistaken prosecution presents in which the the manner inherent in suspect pretrial A identification. commentator witnesses to improper suggestion upon ‘the influence has observed miscarriages probably identifying accounts for more single factor—perhaps respon- justice any other than errors than all other factors combined. for more such sible in Criminal . Wall, Eyewitness Identification Cases . . suspect dangers particularly grave are when for the And the the witness’ insubstantial, opportunity for observation was ’’ greatest. susceptibility suggestion to It was thus his pp. (at p. 229-230 388 L.Ed.2d at further observed picks a witness 1159]) once the accused at the he in rarely his identification and that retracts eases particular lineup presents “a hazard that victim’s under- may vengeful spiteful outrage excite or motives.” standable amply haz The record this case underscores the improperly lineup. By their own testi of an constituted ards glance fleeting at mony victims obtained no more than yet robbery ear, and their in-court identification convinced guilty robbery. By jury that defendant jurors persuasive alibi, disregarded defendant’s verdict the spent witnesses, three corroborated he February engagement more than 40 miles at a business robbery. Indeed, jury accepted scene of the respect required any it would been the alibi have reject Seeley’s because, it in-court identification will be to recalled, he testified he had observed defendant midmorn hand, ing lot. On the other the Robert correctly found that Officer Torres recorded could have and, therefore, number or someone the license in his vehicle was p.m. vicinity crime at 1 statement, however, impugn to effect of Torres’ strengthen testimony could alibi. His already explained, because, as case in chief prosecution’s evidentiary link between Torres’ observations no there was moreover, circumstances, lent credence Other and the crime. police of defendant’s home failed search defense: receipts. pistol missing or the the automatic reveal either interrogation consistently Despite intensive No motive for the offensewas ever innocence. maintained his employed steadily at a satisfac- defendant was established: good reputation work; maintained tory wage and pressing diffi- children, and was no financial married, has prior criminal record in this state in the culty. had no or accomplice Finally, origin, Illinois. was never state of his *6 apparently police, unknown to and remains the charged; he subject friends or associates of defendant have been no known to involvement.
The crucial circumstance remains that the victims identified lineup defendant as the driver car in a so unfairly deprived process him due conducted law. opinion in supra, Again, Wade, we find United States v. ‘‘ might The trial instructive: which determine the accused’s not may fate well be that the courtroom but that at the pretrial aligned confrontation, against with the State accused, jury, unpro- the witness the sole and the accused unintentional, against overreaching, tected intentional or and appeal or no judgment little effective from the there by (388 rendered witness—-‘that’s ’.’ the man.’ U.S. at pp. p. 1162].) Here, 235-236 L.Ed.2d at too, not counsel could free the defense from the taint of the improper lineup, and his client’s destiny was, in sense, a real sealed time the trial commenced. People In the event the try choose to again, we applied consider the rules to be to make certain that retrial does not suffer from disability through incurred lineup.2 illegal To overcome the effect of taint, People must now on voir dire show clear and convinc ing proof that the in-eourt upon identifications were based observations accused robbery. the scene of the clearly-' 2Since the in-eourt directly identifications here resulted illegal lineup, People from the áre hot entitled" tb: a mere vacation proceedings evidentiary -to .an hearing determine' -in án whether 'independent-source. (See Gilbert v. identifications:had California (1967) supra, 263, 388 1178, U.S. 1186-1187]) 272-273 [18 L.Ed.2d From the account factual case this that the obvious tainted imeourt 190 (United States v. Wade (1967) 218, 1149, 1164].)3 phrase “The *clear and con- vincing evidence’ has been ‘clear, explicit, defined as ’ unequivocal,’ doubt, ‘so clear as to leave no substantial ‘sufficiently strong unhesitating to demand the every assent of ” (In Cal.App.2d mind.’ re Jost reasonable 71].) prosecution The P.2d producing will bear the through requisite the victims the burden of level of lineup
proof. served to enhance their memories so that identify They defendant at trial. they totally could now must all from recollection observations at eliminate mind” “every they distinctly reasonable convince recall fleeting impressions during robbery-. Wade, may suggested extremelly Upon be difficult.4 As retrial the can, course, robbery, victims describe the but it identity pre- of defendant one of the robbers that is the problems grave record. on this sents present case if the in-eourt identifications are prosecution rehabilitated, the has no not evidence to connect the offense-. defendant with While offered testi near mony that defendant’s ear was the Robert Hall store at robbery, this without more would time of the establish conviction, essential to defendant’s identifications were the admission v. and therefore prejudicial (Chapman constituted of this error. 705, 710-711, 24 [17 87 S.Ct. California 824].) " previously said that manner in [t]he 3We have which the weight testimony, conducted affects witnesses’ not its admissibility.” Parham 60 Cal.2d 380 [33 Cal.Rptr. 497, evidence standard convincing But unless the "clear and process, is satisfied the context of a denial of due *7 case, the in-court in the instant is now in as admissible. Parham To the extent that and similar eases are inconsistent People (see, e.g., (1963) Cal.App.2d 388, rule v. Smith 731], Cal.Rptr. People (1962) Cal.App.2d v. McLaine 393 96,104 Cal.Rptr. 72]), they longer can no be considered authoritative. 218, United v. Wade 4See States 247-248 [18 (Black, J., dissenting part concurring part) L.Ed.2d "The 1149] : required by ‘taint’—‘fruit’ determination the Court involves difficulty. practically impossible. I think it more than considerable is capable probing How is a witness the recesses of his mind to draw a sharp exclusively between a courtroom identification line to an memory and a courtroom identification due to earlier not based on ‘ convincing prose ? What kind of clear and the cution offer an judges evidence can the prove upon particular what events memories long delayed in-eourt identification rest? How will trials be while psychologists probe turn the subconscious minds of ? questions posed opinion.” All are but not answered these Court’s also, -Ruffin, 32, The Tainted See Witness 15 U.C.L.A. L.Rev. guilt. (See beyond doubt of his proof a reasonable Cal.Rptr. 284, 104, 62 Cal.2d judgment is reversed. J., J., Tobriner, J., Burke, J., and Sul- Traynor, Peters, C. J., livan, concurred. judgment I would affirm the for McCOMB, J. I dissent. Presiding opin Ford in the expressed Mr. Justice reasons Appeal, Appel prepared by him Court Second for the ion Caruso, District, Division Three Crim. late September nonpublieation). 28,1967, certified
filed petition rehearing Respondent’s February for a was denied opinion printed to read was modified above. 31, 1968.] No. 22576. In Bank. Jan.
[S.F. STEEL, INC., Petitioner, v. COM WORKMEN’S GRANCO BOARD, APPEALS NAMON ROBIN PENSATION al., Respondents. SON et