THE PEOPLE, Plаintiff and Respondent, v. HENDERSON LYN FOWLER, Defendant and Appellant.
Crim. No. 13442
In Bank
Dec. 9, 1969
335
James H. Newhouse, under appointment by the Supreme Court, and John D. Nunes, Public Defender, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SULLIVAN, J.—Defendant Henderson Lyn Fowler was charged by information with the crime of robbery. (
In the instant case we interpret and apply the constitutionally grounded rules which were enunciated by the Supreme Court of the United States in United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]. We conclude that the commitment must be reversed because evidenсe obtained in violation of these rules was admitted at trial and such erroneous admission was not harmless within the meaning of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].
About 9:30 p.m. on August 30, 1967, three young Negro men entered the lobby of the Edgewater West Motor Inn in Oakland. Two employees of the motel—Janice Miller, the desk clerk, and Helen Woodhall, the auditor and front desk manager—were conversing near the registration desk. One of the men asked them for change for the cigarette machine. Upon receiving the change he produced a gun, pointed it at the two women, and ordered them to raise their hands. He and one of his confederates then went behind the desk and the latter took some $177 from the cash drawer. The third man remained by the door of the lobby out of the direct view of the two women. After the cash drawer had been emptied the man with the gun asked where the “big money” was and his companion suggested a cabinet drawer, which proved to be empty. The two men then took some money from Miss Miller‘s
The office was well-lighted, and the robbers were there approximately ten minutes overall. The two men who went behind the registration desk were quite close to the two women during the robbery.
Police, who had been summoned by a patron of the nearby motel dining room, arrived within a few minutes after the robbers left. After the two women had given a general account of the robbery they were asked for descriptions of the rоbbers.2 Neither was able to give any description of the man who had stood lookout, but each gave substantially identical descriptions of the two men who had gone behind the registration desk. The gunman was described as approximately 5 feet 8 inches in height, slender and delicate, with his hair combed high up on the front of his head. The man accompanying him behind the desk was said to be taller and heavier, perhaps 5 feet 10 inches in height and 190 pounds, with straight black hair. His clothing was described as dark or brown trousers and a dark blue brushed cardigan sweater. Neither woman was able to give significant details as to the facial characteristics of any of the robbers, although Miss Miller said that the gunman had “fine features.”
On the next day Miss Miller and Mrs. Woodhall went to the police department where they were shown photographs of six or seven Negro males of the approximate age of the robbers.3 Both chose a photograph of defendant Fowler and positively stated that he was the man who had accompanied the gunman behind the registration desk and who had taken the money from the cash drawer. After a brief interval, the women were shown a second group of from 12 to 14 photographs—apparently featuring defendant‘s known associates. From this group they selected a photograph of one Leon Gray as that of the gunman.4
On the basis of these identifications warrants were issued for the arrest of defendant and Leon Gray.
On September 5, 1967, Gray was arrested at his residence. Two days later he appeared in a lineup. Gray was by that time represented by the public defender‘s office, and prior to the lineup he was asked whether he
There were five participants in the lineup, including Gray. A photograph subsequently introduced into evidence shows that all of the participants were Negro men of the same approximate age and height, although there were differences in build and clothing, and Gray was slightly taller than the other participants. Each was required to speak words used by the gunman in the robbery.6 After the lineup the two witnesses were individually approached by the inspector in charge and asked to whisper her identification, if any. Gray‘s counsel sought to overhear the words whispered by the inspector and each of the respective witnesses, but he was unable to do so. After the identifications had been made in this manner counsel was informed of the result, which he then confirmed with the two women. Miss Miller made a positive identification of Gray as the gunman.7 Mrs. Woodhall, however, was less positive in her identification, and Gray was released.
On September 11, 1967, defendant Fowler went to the police and surrendered himself. He was taken to an intеrrogation room and, after being advised of his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), gave a statement in which he proffered an alibi and denied involvement in the robbery. Later that evening he appeared in a lineup and was positively identified by Miss Miller and Mrs. Woodhall as the man who had come behind the registration desk with the gunman and had taken the money from the cash drawer.
No counsel was present on defendant‘s behalf at the lineup of September 11. Immediately before the lineup defendant was asked whether he was
There were five participants in this lineup, including defendant Fowler. A рhotograph subsequently introduced into evidence shows that all of the participants were Negro men of the same approximate age and height. There were differences in clothing, however, and defendant was the only participant of a heavy build. Each was required to speak words used by the robber who had accompanied the gunman behind the registration desk. As indicated above Miss Miller and Mrs. Woodhall both identified defendant as the robber in question.9
At trial and after the jury had been empanelled defendant made a motion to suppress evidence of the lineup identification on the authority of United States v. Wade, supra, 388 U.S. 218, and Gilbert v. California, supra, 388 U.S. 263. The motion was heard out of the presence of the jury. Testimony was taken from various persons involved in the lineup proceedings10 and the facts appeared substantially as set forth above. Defendant contended that evidence of his lineup should be suppressed because counsel was not present. He further contended that he should have been advised prior to the lineup that, because he was not represented by an attorney, an attorney would be appointed to be present at the lineup in his behalf. The motion
During the prosecution‘s case in chief both Miss Miller and Mrs. Woodhall made an in-court identification of defendant as the robber who came behind the registration desk and emptied the cash drawer. Both women alsо identified the photographs of Gray and defendant which they had selected from the police files on the day after the robbery. Finally, both women testified regarding the two lineups at which they had identified Gray and defendant.
All other persons who had testified on the motion to suppress also testified at trial. At the close of the prosecution‘s case in chief defendant moved to strike the testimony of Miss Miller, Mrs. Woodhall, and Inspector Madsen, on the ground that he had been denied effective cross-examination in violation of the confrontation clause of the Sixth Amendment by the court‘s refusal to allow preparation of a transcript of the proceedings on the motion to suppress. The motion to strike was denied.
Defendant testified at the trial. He denied guilt and claimed that he was at home with his family and Leon Gray at the time of the robbery. Members of the family testified in support of this alibi, but Gray, called in rebuttal, denied that he was with defendant on the night in question.
As previously stated, the jury found defendant guilty of robbery in the first degree, and the court committed him to the California Youth Authority. This appeal followed.
In United States v. Wade, supra, 388 U.S. 218, the United States Supreme Court held five to four that a federal judgment convicting defendant Wade of bank robbery should be vacated because he had been required to appear in a post-indictment lineup, without the presence of his counsel or a valid waiver thereof—which lineup was therefore conducted in violation of defendant‘s Sixth Amendment rights; that certain in-court identifications were erroneоusly admitted unless it could be shown upon remand that they had an origin independent of the illegal lineup; and that, if the in-court identifications had no independent origin, the judgment should be reversed unless it was determined that their erroneous admission was harmless. In Gilbert v. California, supra, 388 U.S. 263, the high court held six to three that a state judgment convicting defendant Gilbert of murder and armed robbery should be vacated because of the admission during the prosecution‘s case in chief of evidence of a post-indictment lineup in which defendant had been required to appear without the presence of his counsel or a valid waiver thereof—such admission being per se erroneous—and that the judgment should be reversed unless it was determined upon remand that the error was harmless.
We have concluded that the Wade-Gilbert rules are not limited in their application to lineups occurring after indictment. Our reasons are several. First, and perhaps most importantly, we find nothing in the reasoning of those opinions, and have ourselves been able to conceive of no reason, requiring that the rules should be sо limited. The presence or absence of those conditions attendant upon lineups which induced the high court to term such proceedings “a critical stage of the prosecution” at which the right to counsel attaches (388 U.S. at p. 237 [18 L.Ed.2d at p. 1163]) is certainly not dependent upon the occurrence or nonoccurrence of proceedings formally binding a defendant over for trial.11 A lineup which occurs prior to the point in question may be fraught with the same risks of suggestion as one occurring after that point, and may result in the same far-reaching consequences for the defendant.12
Second, we consider that the review of authorities and concluding language contained in part II of the Wade opinion manifests an intention to state principles governing any сonfrontation by one suspected of crime with the witnesses against him at trial.13 It is there indicated that the right at
Third, we note that in Wade the dissenting and concurring opinion of Justice White (joined by Justices Harlan and Stewart) contains the following language: “The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information.” (388 U.S. at p. 251 [18 L.Ed.2d at p. 1171].) While we do not number among the general canons of wise judicial interpretation that of utilizing a dissenting opinion to divine the meaning of the majority, we believe that in the Wade case the reticence of the majority to meet the charge above quoted is not without significance.14 At the least it may fairly be concluded that the majority saw no startling inconsistency between its opinion and the assertion of Justice White that the rules announced applied to lineups conducted “whether before or after indictment or information“—and that therefore the majority considered its “post-indictment” language descriptive rather than limiting.
Fourth, the case of Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967], decided on the same day as Wade and Gilbert, gives
Fifth and finally, we think it clear that the establishment of the date of formal accusation as the time wherein the right to counsel at lineup attaches could only lead to a situation wherein substantially all lineups would be conducted prior to indictment or information. We cannot reasonably suppose that the high court, recognizing that the same dangers of abuse and misidentification exist in all lineups, would announce a rule so susceptible of emasculation by avoidance.
For the foregoing reasons we have concluded that the “post-indictment” language in the Wade and Gilbert opinions is simply descriptive of the facts before the court in those cases and was not meant to limit the operation of the rules announced.15 We further conclude that those rules are wholly applicable to the formal pre-accusation lineup here in question.16
The People further contend that Fowler‘s lineup in the instant case was not a “critical” stage of the proceedings, and that the right to counsel did not attach, because the lineup was conducted in substantial compliance with police regulations prоmulgated to insure its fairness.
In the Wade case Mr. Justice Brennan, speaking for the court, stated: “Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today ‘in no way creates a constitutional strait-jacket which will handicap sound efforts at reform, nor is it intended to have this effect.’ Miranda v. Arizona, supra, at 467” (Fn. omitted.) (388 U.S. at p. 239 [18 L.Ed.2d at p. 1164].)
On August 18, 1967—a little more than two months after the Wade decision—the Oakland Chief of Police issued a general order which sought to establish lineup regulations “in order to promote fairness, eliminate witness suggestion, and document the proceedings for use in court.”
The regulations in question cover six pages of letter-size paper and are broken down into two major subdivisons. The first of these subdivisions is
The regulations also provide that certain instructions are to be given to the witnesses before the lineup: They are to be informed that they are to view a lineup, but they are not to be informed that any person in the lineup is believed responsible for the crime. They are not to point to any participant or make motions indicating that a particular participant is identified. They are not to speak to any person in the room except the investigator when he directs questions to them.
As to the conduct of thе lineup itself, the regulations provide that the participants are to be numbered as they stand on the stage; that each participant is to perform identical actions of facing and walking; that if words were used or specific articles of clothing were worn in the commission of the offense, each participant is to speak such words or wear such articles; and that each participant shall speak other words or perform motions if any witness so desires. After the lineup is completed at least two photographs are to be taken “of the show-up line.” Then, after the participants have been removed, the investigator is instructed to “[i]nterview each witness and complainant separately and in the presence оf the subject‘s attorney in attendance, if he so requests.” The results of this interview, together with a notation of any special requests made by witnesses during the lineup, are to be entered on a form to be filed in the case jacket.
The second major portion of the regulation is directed to the jail division and outlines its responsibilities upon being notified by the investigator that a lineup is to be held. It provides inter alia that five persons in addition to the “subject” or subjects are to be chosen and that each shall be “closely similar in type, particularly in age, height, weight, race, complexion, physical pecularities and dress.”
It is manifest that the indicated language of Wade must be read in conjunction with part III of the opinion, which undertakes to distinguish lineup identification procedures from scientific examination procedures involving analysis of “fingerprints, blood sample[s], clothing, hair, and the like.” (388 U.S. at p. 227 [18 L.Ed.2d at p. 1158].) It is there concluded that, as to the latter types of procedures, “Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the оpportunity for a meaningful confrontation of the Government‘s case at trial through the ordinary processes of cross-examination of the Government‘s expert witnesses and the presentation of the evidence of his own experts.” (388 U.S. at pp. 227-228 [18 L.Ed.2d at pp. 1157-1158].) Thus, as Wade states, such procedures are not “characterized as critical stages at which the accused has the right to the presence of his counsel.” (388 U.S. at p. 227 [18 L.Ed.2d at p. 1157].) On the other hand, as the court points out in part IV of its opinion, lineup identification procedures have not evolved within the context of scientific techniques capable of expert scrutiny at trial. For this reason they are characterized as “critical“: because the procedure itself lacks a scientific context of high reliability cаpable of scrutiny at trial through expert witnesses, the function of insuring fairness and accuracy devolves upon counsel through the requirements of the Sixth Amendment.
Viewed in this light, it is clear that the court‘s language concerning “regulations” (found at the end of part IV) has reference to the development of eyewitness identification procedures of a high order of reliability comparable to that obtaining in scientific examination procedures. This conclusion is buttressed by the court‘s footnote 30 on page 239 of its opinion. This footnote is attached to the sentence of the court‘s opinion wherein it envisions the possibility of legislative or other regulations which might remove the basis for regarding a lineup confrontation as a “critical” stage, and it summarizes a “scientific method” of pretrial identification first advanced by Wigmore which utilizes a series of talking films instead of actual face-to-face confrontation. (See Wigmore, The Science of Judicial Proof (3d ed. 1937).) The footnote concludes as follows: “Of course, the more systematic and scientific a process or proceeding, including one for
We do not believe that the police regulations here in question are of the nature contemplated by the United States Supreme Court which would be sufficient to “remove thе basis for regarding the [lineup] stage as ‘critical‘” and thus remove the necessity for the presence of counsel to insure fairness and reliability. (388 U.S. at p. 239 [18 L.Ed. 2d at p. 1164].) Even if we assume for purposes of argument that these regulations provide substantive standards which if followed would insure a fair lineup, the United States Supreme Court has made it clear that a constitutionally adequate substitute for the presence of counsel at the lineup, in order to preserve a meaningful confrontation at trial, must provide for a means whereby the defendant can have an opportunity at trial to effectively reconstruct the procedure by which he was identified in a pretrial lineup. (See 388 U.S. at pp. 231-232 [18 L.Ed.2d at pp. 1159-1160].) The regulations in question do not provide such a means.
It is the Attorney General‘s suggestion that an adequate reconstruction may be effected in the context of a requirement that the prosecution, prior to the admission of evidence of a lineup or a courtroom identification based upon a lineup, demonstrate “substantial compliance” with regulations such as those before us. As we understand the contention, it is contemplated that prior to the admission of such evidence, and upon objection that it is based upon an unfair lineup, the court would hold a hearing out of the presence of the jury wherein testimony would be taken from persons involved in the lineup (presumably including police officers who conducted the lineup, witnesses who attended the lineup, and the defendant himself) and still photographs of the composition of the lineup would be introduced. Defense сounsel, who would be provided with a copy of the regulations in question, would have the opportunity to examine or cross-examine such witnesses on the basis of such regulations in order to determine whether they were followed in the lineup at issue. Following this hearing—so the suggestion of the Attorney General continues—the court would make a determination. If it concluded that the regulations were substantially complied with it would overrule the defense objection to the proffered evidence; if it concluded that there was no substantial compliance it would sustain the objection and exclude the evidence.
We do not believe that the procedure suggested by the Attorney General would provide the kind of opportunity for reconstruction of a рretrial
We hold that the lineup of September 11, 1967, wherein defendant was identified by Miss Miller and Mrs. Woodhall, was conducted in violation of defendant‘s Sixth Amendment rights because counsel was not present in his behalf and because defendant did not intelligently waive his right to the presence of counsel. It was error of constitutional magnitude to admit evidence of the lineup itself, and, under the rules announced by the United States Supreme Court, that error cannot be cured by any showing that the subsequent in-court identification had a source
The People have not sustained their burden in this regard. There was no evidence connecting defendant with the robbery of the Edgewater West Motor Inn other than the identification evidence and identification was the sole issue at trial. Furthermore, defendant presented an alibi supported by a number of witnesses, and the only evidence impeaching this alibi was out of the mouth of Leon Gray, whose testimony was clearly subject to doubt because of his obvious motive for disassociating himself from defendant. In these circumstances we cannot declаre it clear beyond a reasonable doubt that the lineup evidence did not contribute to the verdict obtained.
Upon retrial in-court identification evidence on the part of the two witnesses in question will be admissible only if the prosecution is able to show out of the presence of the jury that such identifications had a source independent of the improper lineup. (United States v. Wade, supra, 388 U.S. 218, 239-243 [18 L.Ed. 2d 1149, 1164-1166, 87 S.Ct. 1926]; Gilbert v. California, supra, 388 U.S. 263, 272 [18 L.Ed.2d 1178, 1186, 87 S.Ct. 1951].) Questions on retrial concerning the admissiblity of evidence of pretrial photographic identifications, and the effect of such identifications upon in-court identification, will be governed by the opinion of the United States Supreme Court in Simmons v. United States (1968) 390 U.S. 377 [19 L.Ed.2d 1247, 88 S.Ct. 967].
The judgment of commitment is reversed.
Traynor, C. J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
McCOMB, J.—I dissent. I would affirm the judgment.
Notes
Aftеr Gray‘s arrest but before his lineup on September 7, defendant contacted attorney Clarence Davis and requested that he, Davis, call the police in order to determine whether Gray had been charged and whether he, Fowler, was wanted. Davis did so and was told that Fowler was wanted and could appear in a lineup that evening if he desired to surrender himself. Defendant apparently did not so desire at that time, but after he spoke with Gray on the next day and heard of the latter‘s lineup experience at the police station, he surrendered himself on September 11. Prior to the lineup on that day the police contacted attorney Davis, informed him that defendant was in custody and was scheduled to appear in a lineup, and asked whether he represented defendant. Davis replied that he did not.
It appears that on the day of the robbery defendant had been held to answer on a charge of possession of marijuana, and that on September 11 he was free on his own recognizance awaiting trial in that matter. Defendant was represented by the public defender in the narcotics matter. At the trial of the instant case, he testified that he informed the officer who interrogated him upon his arrival at the police station—and who conducted the subsequent lineup—of this fact. The officer, Inspector Madsen, testified that he was not so informed by defendant and that he had no knowledge of the marijuana proceeding.