THE PEOPLE, Plaintiff and Respondent, v. HENDRICK BERNARD JOHNSON, Defendant and Appellant.
Crim. No. 31901
Second Dist., Div. Two.
Oct. 23, 1978.
85 Cal.App.3d 684
Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Assistant State Public Defender, and Harold E. Shabo, Deputy State Public Defender, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Lawrence P. Scherb II and Sandy R. Kriegler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEACH, J.—
NATURE OF CASE:
Defendant appeals from the judgment of conviction after a jury found him guilty of robbery and using a firearm in the commission thereof. Appellant primarily contends that the trial court erred in admitting evidence of a lineup identification where he appeared without counsel.1
FACTS:
On April 13, 1977, at about 8:30 a.m., Dorris Smith (the victim) was walking down Florence Avenue between Hoover and Vermont Streets in
On the following day she saw what she thought was the same Rambler in which she was robbed, hailed a passing policeman and showed him a copy of the crime report she had made. The police officer put the Rambler under surveillance and ultimately stopped it and questioned appellant, who was its driver. The information comprising appellant‘s name, address, and who was the owner of the car, thus obtained, was relayed to another officer who, acting upon it, obtained a photograph of appellant. On or about April 25, 1977, the photograph of appellant was, with five others, shown to Dorris, who picked out appellant as the man who had robbed her. On May 19, 1977, a little more than three weeks later, other police officers armed with a warrant naming appellant proceeded to appellant‘s residence, stated they were there to arrest appellant and were granted entry by appellant‘s sister. They discovered appellant hiding under a bed. On May 23, 1977, appellаnt was included in a police lineup. He was identified by Dorris as the perpetrator of the
Appellant is six feet one inch or six feet two inches tall, darker than the victim and had a burn mark on his left forearm. Three .38 caliber bullets were found in one of his shoes. The three bullets were not nor was the .38 Smith and Wesson revolver which Dorris identified at the police station as similar, introduced in evidence, although they were referred to, nor was any revolver appellant was charged with using. Appellant claimed to have been shopping with his fiancee and some friends on the date of the robbery. However, he had earlier told police he was then driving his mother to the hospital. He denied he had a gun or owned a gun. None of the property of which Dorris was robbed was traced to or found with appellant. He maintained his hiding under the bed when arrested was due to his fear he was being sought in connection with an outstanding traffic warrant and that the bullets found belonged to a friend. He was the only witness for the defense.
ISSUES:
- Was there an unreasonable delay?
- Was the admission into evidence of a lineup identification where the defendant appeared without an attorney prejudicial error requiring reversal?
OUR HOLDING:
We answer no to both of the above questions and we affirm the judgment of the trial court.
DISCUSSION:
1. There was no unnecessary delay.
Appellant was arrested on Thursday, May 19, about 7:30 a.m. He was arraigned on Monday, May 23.
On the other hand, using the time allowed to prepare and evaluate a case before filing a complaint is not prohibited. Where a delay within the 48-hour period occurs in order to evaluate a case the delay is not unnecessary. (Stanley v. Justice Court, 55 Cal.App.3d 244, 250 [127 Cal.Rptr. 532]; People v. King, 270 Cal.App.2d 817, 822-823 [76 Cal.Rptr. 145]; People v. Ross, 236 Cal.App.2d 364, 368-369 [46 Cal.Rptr. 41].) There may be other valid reasons for not arraigning an arrested person immediately upon arrest and for using all or the greater part of the 48 hours allowed. Some of those reasons may include study and investigation to make certain that grounds exist to support a criminal complaint. (People v. King, supra, 270 Cal.App.2d at p. 822.) A delay which is occasioned by the conscientious performance of police and which is utilized for the purposes of clerical and administrative needs and not used solely for the purpose of eliciting damaging statements from the accused is not an unreasonable delay.
2. The absence of counsel at the lineup was not prejudicial error.
Appellant and respondent both argue whether or not the right to assistance of counsel under the Fourteenth and Sixth Amendments
“Sinсe here the lineup preceded the initiation of judicial criminal proceedings, the Wade-Gilbert per se exclusionary rule is inapplicable, and defendant‘s previously recited claims of error based on that rule therefore cannot be upheld. No claim is made, nor does it appear, that the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification.” (Chojnacky, supra, 8 Cal.3d at pp. 764-765.) Although the present dissent further seeks to explain that People v. Chojnacky, supra, does not adopt the Kirby rule in California, we need not here debate that the Kirby rule was or was not adopted by Chojnacky nor need we advocate which view is the better. For the purpose of
In the matter at bench there was strong, positive, and direct evidence abundantly sufficient in amount, character, and reliability to prove the guilt of appellant beyond a reasonable doubt. That evidence was totally independent of the lineup identification of appellant by the victim. In summary, that evidence is as follows: On April 13, the victim spoke to the defendant directly in a friendly unexcited manner. The conversation and confrontation face to face in a friendly manner lasted for the greater part of the 20 to 30 minutes of the total encounter with the appellant. Victim saw appellant closely in full daylight face to face. She saw the scar on his arm. It was in the same place and on the same (left) arm as was seen by the officer and as was seen by the jury at trial. She saw the letters of at least R and D at the end of the tattooed name BERNARD which was on her assailant‘s arm and which was on appellant‘s arm. She saw this tatoo just beneath the shirt sleeves of her assailant which were rolled in the same manner as appellant wore his sleeves at the trial. After she was robbed, she immediately phoned the police and described the above details. She also immediately gave a description of the Rambler station wagon and the color of the car. In the immediate description that she gave to the police she included the assailant‘s color, approximate height, and scar, all of which matched that of appellant.
The next day she saw the same car and immediately notified two nearby officers. The car was traced and appellant was identified as the driver of the car on that day. Appellant when arrested continued to fit the description including the scar, his height, the tatoо, and at the time of his arrest, he was in possession of three .38 caliber bullets. There was not the slightest shred of evidence that either on April the 25th or at the in-person identification there was any difficulty on the part of the victim identifying either the photo of appellant or appellant personally. There was no evidence that there was any suggestion, hint, or coaching.
As a result there is no evidence that her in-court identification of appellant was dependent upon or in any way tainted by any improper prior identification.
Additional reasons why the evidence of the identification of appellant can be relied upon as worthy of belief are the following: the observation was while appellant was present in the daylight. It was not of some fleeing, obscure subject at night; there were no other victims to whom to give testimonial support or whose testimony needed bolstering or who spurred the imagination of the victim. This was a person-to-person encounter of extended duration. There was no need to confirm a guess. The problem of collusion among identifying witnesses or victims was absent. These are but a few of the items which differentiate this case from others in which the identification is critical yet problematic.
The evidence totally apart from the in-person identification overwhelmingly showed that appellant committеd the crime. Although the description and identification first came from the lips of the victim alone it was corroborated by (1) the fact that the make, model, and color of car used by the assailant and described by the victim was uncontrovertedly traced to appellant as the driver and the appellant fit the given description of the assailant in color, height, scar, tattoo, and wearing of shirt sleeves; (2) the assailant‘s photograph was pointed out by victim without hesitation, hint, or coaching. Both of these things occurred long before the lineup.
The judgment is affirmed.
Fleming, J., concurred.
ROTH, P. J.—I dissent.
When at this point in time a person residing in California is illegally arrested in his home and thereafter incarcerated incommunicado for more than four consecutive days, actually in excess of 100 hours, before he is arraigned before a magistrate, such an event compels an analysis of
The facts recited by the court‘s opinion as they will be amplified are undisputed and show appellant was deprived of two rights of constitutional dimensions by the arrest procedure followed and herein criticized. He was illegally arrested at 7:30 a.m. without a legal warrant in nonexigent circumstances in his residence.1 The arrest was not a “Constable‘s mistake” but was made pursuant to an alleged arrest warrant sought and obtained by a calculated illegal procedure designed to enable the production of appellant at a formal lineup at which he could not insist upon and at which he was not represented by counsel. The procedure involved is encouraged by the principal law enforcement officer of the County of Los Angeles, i.e., the district attorney, and requires the participation of the investigating officer and the assistance of a judicial officer acting as a magistrate. It is conceded that the warrant was not issued as required by
Appellant‘s motion to suppress evidence of the arrest and what had occurred during its execution, was denied but during the hearing thereof it was developed without dispute that:
“Q. Prior to that lineup—and I believe the lineup was held on May 23rd, 1977—did you attempt to have this case filed with any member of the District Attorney‘s Office?
“A. Yes, I did.
“Q. And was that with Mr. Myron Jenkins?
“A. Yes, it was.
“Q. And was it because of something Mr. Jenkins said to you that you then sought to have a lineup for this case?
“A. Yes.
“Q. And on the date when you went to have the case filed, would you indicate what you were told by Mr. Jenkins?
“Mr. Jenkins indicated to me that a photo lineup identification was insufficient for his office to file a complaint.
“He rejected the filing, and requested that I return with the case after getting a formal lineup.”2
The deputy district attorney in court admitted:
“... the case wasn‘t filed; had the case been filed the attorney could have been there and alleged some type of misconduct or active intention on the part of the police officers or law enforcement to deprive Mr. Johnson of an attorney.
“... this was not done. And I believe that the law in California has followed the Kirby case; and since the Kirby decision, in every case involving this decision it is held that a preindictment lineup did not require the presence of an attorney. I know of no case to the contrary.”
The court, denying appellant‘s motion to suppress, said in pertinent part: “That the officers did not act in bad faith in order to deprive the defendant of counsel at a lineup.”
The district attorney, to legally justify the arrest procedure in this case, refers to and relied upon Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877] as authority that due process requirements are adequate protection to the accused prior to the initiation of an adversary judicial proceeding which would be initiatеd by a complaint. On appeal, the Attorney General relies upon
It is clear from the record that on or about April 25, when Dorris picked one of six photos identifying appellant, the investigating officers had all the facts in connection with the robbery committed on April 13, and that appellant could have been arrested at any place outside of his residence at any time after that date, but the district attorney on May 19 nevertheless refused to file a complaint because of the inherent weakness of a “one-on-one case.” In addition, the record shows that the jury had some difficulty in reaching a verdict of guilty.4
It is significant too, that appellant was not arrested the day after the crime when the victim identified the Rambler appellant had been driving but did not identify the driver of the car who was the appellant. The officer following the Rambler eventually spoke to appellant and days later showed up with six photos one of which Dorris selected as a photo of the man who had picked her up on April 13, but the record shows no other police action with respect to appellant until May 19.
To me, it is completely irrelevant that appellant on the admitted facts might have been arrested on the street on probable cause without any warrant the day after the commission of the felony charged or could have been arrested without a warrant on the street on the same day he was arrested in his house approximately three weeks after the crime was committed if the constable had waited for him to come out on the street.
There is no contention that the warrant by the authority of which appellant was arrested in his home was a search warrant which required a search of the premises in which aрpellant resided.
It was clear to the investigating officer that a formal lineup was required by the district attorney, whereupon the investigating officer obtained an arrest warrant based upon his affidavit. Neither the affidavit nor warrant was made part of the record. Based on this warrant, appellant was arrested in his home. Four days after the arrest, a formal lineup was held. Appellant was not, nor is it contended that he was, advised of his right to counsel at such lineup, nor did he, and it is not contended thаt he did, waive said right. Within hours after the victim had identified appellant at the formal lineup, a complaint was filed charging the robbery of which a jury ultimately found him guilty.
It‘s bromidic to reiterate the principle that a person‘s privacy in a home, whether such person be a suspected felon or a paragon of virtue, and whether the home be a hovel or a palace, is sacred and that such privacy can be intruded upon only in strict compliance with law.
There are settled rules which bear upon the establishment of identity which we examine infra. These rules of constitutional dimension were violated in this case by a calculated and what appears to be an intolerable practice of the district attorney‘s office inspired by a miscalculation of what the law is in California with respect to the issuance of arrest warrants and the rights of a defendant on a formal lineup.
On June 12, 1967, thе Supreme Court of the United States in three cases concurrently decided (United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926]; Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]; cf. Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967]) enunciated protective constitutional principles generally thought to be applicable by a respectable portion of both the federal and state judiciary in all instances in which a person suspected
The federal doctrine announced in the above cases was meticulously analyzed by the California Supreme Court in People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643] in an opinion by Sullivan, J., Traynor, C. J., Peters, Tobriner, Mosk and Burke, JJ., concurring, and McComb, J. dissenting, and was interpreted to so hold. The Fowler court said in pertinent part:
“Fifth and finally, we think it clear that the establishment of the date of formal аccusation 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. We further conclude that those rules are wholly applicable to the formal pre-accusation lineup here in question.” (Fns. omitted.) (People v. Fowler, supra, 1 Cal.3d at p. 344.)
It was clearly established by Fowler and in my opinion remains the law today that in-court identification of the defendant based upon or not independent of lineup identification as well as evidence of the prior lineup identification itself are not permissible when it is clear from the record as it is at bench the appellant had no counsel at the time of the lineup identification.
A seeming departure of the doctrine enunciated by the Fowler court has been created by the majority opinion in Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877]). Kirby holds that the Wade-Gilbert rule requiring counsel or a valid waiver thereof at lineup does not apply when such lineups are held prior to the initiation of formal criminal judicial proceedings. (See also Moore v. Illinois (1977) 434 U.S. 220 [54 L.Ed.2d 424, 98 S.Ct. 458].) Respondent contends the Kirby rule was adopted by the Supreme Court of this state in
In Chojnacky, defendant‘s counsel was present and it was thus not necessary to arrive at the conclusion reached there by reference to Kirby. Defendant in Chojnacky complained his counsel was ineffective at the lineup. There is language by the majority in Chojnacky to the effect: ”Fowler and other California decisions were based on the federal Constitution and are not controlling....” (People v. Chojnacky, supra, at p. 764.) But it is also clear from a separate concurring opinion by Mosk, J. that “Counsel was in fact present throughout the staging of the lineup“; and the concurring opinion further states in pertinent part:
“Manifestly ‘any’ pretrial confrontation and ‘all’ confrontations for identification imply no limitation to post-indictment proceedings. Thus our court properly interpreted Wade-Gilbert to apply to every lineup, no matter when held. (People v. Fowler (1969) 1 Cal.3d 335, 342-344 [82 Cal.Rptr. 363, 461 P.2d 643].) It would seem obvious that if an accused is entitled to the protective presence of counsel at a lineup, the chronology of the lineup with respect to other proceedings is of no consequence.
“I have heretofore expressed reservations concerning the role which attorneys may assume at lineups and have indicated its limitations (see my dissent in People v. Williams (1971) 3 Cal.3d 853, 858 [92 Cal.Rptr. 6, 478 P.2d 942]). But I have not doubted that Fowler is the law of California....” (People v. Chojnacky, supra, 8 Cal.3d at p. 767.)
Chojnacky was decided by a six-judge court. The Mosk opinion concurred only in the judgment. Sullivan, J. dissented and was joined by Tobriner, J. I am aware others have viewed Chojnacky differently. (People v. Williams (1977) 68 Cal.App.3d 36 [137 Cal.Rptr. 70]; People v. Strawder (1973) 34 Cal.App.3d 370 [108 Cal.Rptr. 901]. See also People v. O‘Roy (1972) 29 Cal.App.3d 656 [105 Cal.Rptr. 717]; People v. Faulkner (1972) 28 Cal.App.3d 384 [104 Cal.Rptr. 625].)
But in my view even though it is assumed that the doctrine enunciated by Fowler was limited by Kirby, no assumption can be made that it was erased or modified by Chojnacky. The facts in Chojnacky fulfilled the requirements of the Fowler doctrine and it is clear that Mosk, J. concurred in the Chojnacky judgment for that reason.
It is equally clear, in my judgment, that under the facts here present even Kirby supports a conclusion of error. The better understanding of
We are left, nevertheless, with the question whether appellant should not be accorded the benefit of the Fowler doctrine by virtue of the requirements of article I, section 15 of our state Constitution.6 In this respect we are mindful of the observation: “As we noted in People v. Longwill (1975) 14 Cal.3d 943, 951, footnote 4 [123 Cal.Rptr. 297, 538 P.2d 753]: ‘[I]n the area of fundamental civil liberties—which includes not only freedom from unlawful search and seizure but all protections of the California Declaration of Rights—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental civil rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual prоtection than is guaranteed by California law.’ We have consistently adhered to the foregoing rule of interpretation and in our nation‘s system of federalism it is as fundamental a principle of constitutional law as that which rests ultimate authority for interpretation of the federal Constitution in the United States Supreme Court.” (Fn. omitted.) (People v. Hannon (1977) 19 Cal.3d 588, 606 [138 Cal.Rptr. 885, 564 P.2d 1203].)
In Wade, the issue simply stated consisted of whether “the assistance of counsel at the lineup was indispensable to protect Wade‘s most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined. ...” (United States v. Wade, supra, 388 U.S. 218 at pp. 223-224 [18 L.Ed.2d at p. 1155].)
“In sum, the principle of Powell v. Alabama and succeeding cases requires that wе scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant‘s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant‘s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” (United States v. Wade, supra, at p. 227 [18 L.Ed.2d at p. 1157].)
It was reasoned that: “... the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from
“The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. ... Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused‘s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness—‘that‘s the man.’ ” (Fns. omitted.) (United States v. Wade, supra, at pp. 234-236 [18 L.Ed.2d at pp. 1161-1162].)
Similarly, in a dissenting opinion in Kirby, Justice Brennan pointed out: “In view of Wade, it is plain, and the plurality today does not attempt to dispute it, that there inhere in a confrоntation for identification conducted after arrest the identical hazards to a fair trial that inhere in such a confrontation conducted ‘after the onset of formal prosecutorial proceedings.’ Id., at 690 [32 L.Ed.2d 418]. The plurality apparently considers an arrest, which for present purposes we must assume to be based upon probable cause, to be nothing more than part of ‘a routine police investigation,’ ibid., and thus not ‘the starting point of our whole system of adversary criminal justice,’ id., at 689 [32 L.Ed.2d at p. 418]. An arrest, according to the plurality, does not face the accused ‘with the prosecutorial forces of organized society,’ nor immerse him ‘in the
I find the reasoning articulated in favor of a broader application of the Wade-Gilbert rules not only persuasive but compelling, and agree that: “... surely the assistance of counsel, now established as an absolute post-indictment right does not arise or attach because of the return of an indictment. The confrontation of a lineup . . . cannot have a constitutional distinction based upon the lodging of a formal charge. Every reason set forth by the Supreme Court in Wade . . . for the assistance of counsel post-indictment has equal or more impact when projected against a pre-indictment atmosphere.” (Wilson v. Gaffney (10th Cir. 1972) 454 F.2d 142 at p. 144.)
Nor do I regard my conclusion only a means of expressing disagreement with the plurality in Kirby. To the contrary, I accept the premise there is no inherent virtue in expanding state constitutional safeguards beyоnd those existing at the federal level and that such a course should be followed only where there is a sufficient basis in state law for the result. (People v. Hannon, supra, at p. 606.) That basis, I believe, is contained in the posture assumed by our Supreme Court in Fowler and it is, of course, irrelevant to the question at hand whether that decision as such was or was not overruled by Kirby since its ratio decidendi applies equally to any consideration of article I, section 15. In People v. Hannon, supra, though that case was concerned with the right of a defendant to a
If it is true one named in an arrest warrant may enjoy appropriate constitutional protection, even though the warrant has not been served, a fortiori must that be the case where he has been arrested, with or without a warrant.7
Of course, an objection may be made that the necessity of counsel on formal identification occasions will unnecessarily delay pursuit of the matter involved and impede effective police procedures. However, I cannot grant that consideration controlling effect since it should never be the case that constitutional safeguards may be sacrificed to expedience. Nor is the burden imposed by the requirement any different in essence than those arising out of other protective requirements whose efficacy is no longer even argued. (See e.g., Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]; Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758].) Accordingly, and for the reasons set forth above, the judgment appealed from should be reversed if the error committed creates a conviction in the mind of this court that it is reasonably probable a different result would have been reached if it had not been committed. (People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243]; cf. Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Fowler, supra, at p. 350.) My review inclines me to conclude it is reasonably probable a more favorable result to appellant would have occurred in the absence of the lineup evidence. The jury, after a limited retirement, indicated to the trial court a preliminary inability to reach a verdict and were encouraged to proceed further. Later, they requested the victim‘s testimony be re-read to them in full, thus focusing on its importance to their deliberations. No other personal identification testimony was present to
The foregoing review of the evidence is made on the theory that the warrant under which appellant was arrested was legally issued based upon an officer‘s affidavit which was deemed to be a filed complaint initiating adversary proceedings. On that theory, what occurred at the time of and during the arrest was admissible. However, if the filing of the officer‘s affidavit is not considered as a complaint and the arrest was illegal, then the evidence of appellant‘s hiding under the bed, his excuse therefor and all the testimony of the officers as to what they saw and heard at the time of and during his arrest were not properly before the court, and the motion to suppress the same should have been granted. In that posture of the case, it becomes emphatically clear to me that it is reasonably probable a result more favorable to appellant would have been reached.9 I would therefore reverse the judgment.
On November 14, 1978, the opinion was modified to read as printed above. Appellant‘s petition for a hearing by the Supreme Court was denied December 20, 1978. Bird, C. J., and Tobriner, J., were of the opinion that the petition should be granted.