*1 940 v. SIMS STATE of
Danny Arkansas Jerome CR 75-85 2d 530 S.W. delivered December
Opinion *2 Ross, Defender, for Bill E. Public appellant. Tucker, Gen., R. Asst. Atty. by: Terry Kirkpatrick, Guy Jim Gen., for
Atty. appellee. Sims was tried Fogleman, Appellant Justice. John and found of murder of Mrs. Hazel Elmore in the guilty of an armed and sentenced to life im- perpetration robbery We find it to reverse that sentence and prisonment. necessary reversal, first for viz: upon appellant’s ground judgment CONSTITUTIONAL RIGHTS OF APPELLANT WERE IN VIOLATED THAT APPOINTED COUNSEL FOR APPELLANT WAS NOT NOTIFIED OF A PRETRIAL LINE-UP HELD WEEK PRIOR THE ONE TO TRIAL. *3 Banks, defender,
The record indicates that Charles as public March, was to Sims as as 1974. His appointed early represent Elmore, trial commenced on October 1974. the hus- Clay of Elmore, band Mrs. Hazel was also a victim of the robbery which was killed. took on wife during robbery place 31, 1973, March at Elmore’s service station off just 140 exit from Interstate 55 near Highway Osceola. Highway He was found wounded and the road- bleeding, lying along station, side 175 feet from his for approximately yelling help. He was taken to room at Osceola emergency Hospital and arrived there about of Officer Garland Bobo midnight. the Osceola Police was there Department on and saw duty Elmore to the come door of the room in a emergency crying loud, terrified voice that he had been shot. Bobo observed that Elmore had been in wounded his left shoulder and hand He said that Elmore to be in shock. by gunfire. appeared in After treatment Bobo in an rode ambulance emergency which Elmore was to a Bobo transported Memphis hospital. returned 3:00 about a.m. and made a check on certain things, Elmore, as had he been to do who Bobo the requested by gave to the station. keys
While at the Elmore first told Bobo black hospital, two males were the robbers and later said there were three. He was unable to other that give any Bobo also description night. testified that en to route the Memphis Elmore hospital gave him a of three of Chevrolet description automobile categories Bobo, said the car to Elmore robbers. used According Chevrolet new two-tone left was a small in the robbers which the colors mentioned colors. Bobo different but three gave have said that he in but might his blue and black at this time said that and black. Bobo recorded them green daze, with consciousness coming in a Elmore be seemed and going. for the Police Moore, Osceola Criminal
Lt. Investigator males that three black he was aware said that Department, and Otis Franklin, Robert Earl Richmond named Myron on been the morning Sunday, April Franklin had arrested three, These of the automobile. on Elmore’s description from Osceola who as they were approached apprehended were fingerprinted Interstate Highway, photographed and a half. were in for an hour while about custody which included Moore took stack photographs to the of these hospital three persons photographs Elmore, week and all them later showed Memphis three. Moore said who out the of these picked photographs medication and no condition to that Elmore under it evident that further information. He that was stated give the time. Elmore was not coherent or alert at mentally witness, Banks When as a re- Elmore called Clay he an in camera anticipated hearing, quested saying *4 Banks Elmore would be to asked sought identify appellant. to in a the order to the facts pertaining lineup hearing explore of the in Osceola Sims Elmore at jail during by trial, of Banks. the absence The week the in the preceding that the was admitted candidly lineup prosecuting attorney Sims held had identified as and that Elmore then positively in one of three who the and the persons robbery participated stated that murder of Mrs. Elmore. attorney prosecuting he mention of the did not to make any lineup, propose had that he could Sims the because Elmore said identify upon him commis- basis to observe the of the opportunity during crime, sion of and not from him in the He the lineup.1 viewing further that the for the state’s benefit in was explained lineup testify at this hear appear be Elmore did not and should noted that 1It by only robber was the identify to the stated ability ing. purported His by Elmore. made purportedly of statements attorney’s recall prosecuting order determine to whether Elmore could and positively doubt without as of Sims one those identify of the guilty crime. The trial and facts, all judge any cir- suppressed cumstances to statements the held but pertaining lineup, call the state would be to Elmore for that the pur- permitted could, Sims, of if he even pose identifying though nothing could be said about a The court also lineup. expressly gave defense counsel to into the matter permission go during this testimony. examination,
On direct Elmore identified positively Sims, he that first saw in the door saying appellant standing of the service station with rifle in his hand. He related the restroom, brutal murder of his inwife the men’s story that stood Sims at least feet three the door saying away rifle, with his while another robber shot her twice with a thirdA shot wounded pistol. Elmore. Elmore said that the whole covered a four episode about minutes. period cross-examination,
On Elmore admitted that was emotional, as be highly might expected. Elmore said he had to see Blytheville Sims gone jail there, him, because he wanted look at but the sheriff just would not him to so. do He admitted been permit pre- having sent when Sims was at the term of court. arraigned preceding him, When asked to describe without Sims at Elmore looking said he did not measure the defendant he to see how tall know and didn’t how much he He said that at weighed. time Sims’ hair “bushed out” more than it robbery did in courtroom. He could not describe clothing worn at the time of the man said he robbery Sims. admitted seen He Sims a few in court having days previously when, occasion, on another a sheriff’s office had brought water, Sims to the for the courthouse a drink of lobby well as on occasion of the Elmore said all lineup. those in the were dressed alike wore white shirts. lineup he cre- said he wore when out Although dit only glasses making cards, he them on when he viewed Sims the lineup put *5 at the because he to look had two “bunches” of jail, through wire and wanted be He also saw to sure. stated that when he Sims, did in he not look at four other the the persons lineup. Elmore testified that he did not remember shown being any
945 in at the the April hospital evening photographs at the time. he was that “doped up” saying Memphis, occurred the whole “pretty Elmore said that robbery episode when he and the robbers his back was toward fast” and that she killed and where taken to the bathroom his wife were he shot. or the
No about the lineup composition of Elmore what occurred at that time that appears except is had been the record. It clear that Banks appointed time neither nor at that but was present appellant’s attorney evidence, At conclusion of the state’s notified. the appellant there was no evidence to moved for a directed verdict because connect him with crime other than Elmore’s identifica- the tion. that admits General candidly appellant Attorney notified should have been lineup his attorney in order to to be present an attorney given opportunity v. States set out United
meet the constitutional requirements Wade, L. 2d 1149 and 218, 87 Ed S. Ct. U.S. 1951, 18 L. Ed. 2d 263, 87 S. v. 388 U.S. Ct. Gilbert California, conducted without that when a 1178. He also lineup agrees counsel, establish must of accused’s State by the presence courtroom clear and the subsequent evidence that convincing such who identified accused a witness by observation rather a was based upon lineup independent infirm than lineup procedure. constitutionally upon State, 885; 645, 473 2d United v. 251 Ark. S.W. Montgomery Wade, state relies On v. this entirely States supra. point, was clear and there convincing upon argument was not tainted evidence that Elmore’s courtroom testimony lineup. We has us This troubled considerably. question this court the circuit had an advantage judge recognize observe the witness not, of his does because opportunity If identification. only simple and his courtroom establish that sufficient to of the evidence was preponderance tainted, was not we might Elmore’s courtroom identification have rely in this case. We well hold with the state might we could not upon say they because the trial judge’s findings *6 were of the the evidence. But clearly against preponderance tests, when we look to the Wade we that the re- cannot say of Wade were met the in on quirements recognized Montgomery us, record in view the before of fact that the particularly only Sims, case, i.e., in real issue the identification of turned upon alone, this as attorney aptly pointed appellant’s here, out in the trial in court. It is also significant Wade, the was conducted to the lineup “crystallize [witness’] Wade, of the identification defendant for future reference.” In some factors to be considered in the whether determining identification was tainted were enumerated as examples. them were: Among
1. Prior observe criminal act. opportunity 2. of The existence between any discrepancies any pre- and the defendant’s actual description lineup descrip- tion.
3. another Any pre-lineup person. 4. of time between the act Lapse alleged lineup identification.
5. Facts disclosed conduct of the concerning lineup. of Elmore to observe the opportunity robber he said sufficient, was Sims it probably although subject some reasons, limitations. there dis- Regardless were between crepancies pre-lineup descriptions pre-lineup identifications of others and the of Sims and his description in-court identification. There was a of more than lapse months trial, between the crime and the which during Elmore well have been may influenced by suggestion, arising from his observed the accused in and at having custody pre- trial No doubt these matters raised a proceedings. question the minds of those about conducting prosecution Elmore’s to eliminate ability reasonable doubt about the any of this who identity This person participated robbery. was serious question to cause them to enough satisfy themselves about Elmore’s in this ability important respect counsel, absence defense who would seize undoubtedly additional Elmore any hesitation on part any upon their commendable However arise. that might discrepancies to con- not sure that were asking jury to be motivation *7 uncertain crime serious upon of a vict the defendant not constitutional did method pass the pursued testimony, Gilbert, i.e., to and of Wade muster. The basic very purpose for cross- be searching counsel to accused’s prepared permit examination, was subverted. consider the it we should
In is that a dissent urged as harmless of lineup to advise appellant’s attorney failure to ad- fact that the failure overlooks the error. This suggestion whether is is issue. The not the question vise the attorney an un- was tainted by of in-court appellant for inadmissible that conducted constitutionally lineup was harmless when error reason. We cannot say to connect evidence no other appellant there is absolutely of his crime, attorney’s with the was deprived appellant about witness cross-examine the to ability identifying As we from observation proceeding. lineup personal rule, an error of constitutional propor- before understand the harmless, harmless it must be be considered tions may doubt, be to and we must able say reasonable beyond the defendant’s untainted evidence of overwhelming guilt is harmless. even whether the error before can consider we 1726, 250, 23 L. 89 S. Ct. Ed. v. 395 U.S. California, Harrington State, (1975). 2d 284; v. 258 Ark. 527 S.W. 2d Freeman evidence, course, when, here, Of there no other is rule be harmless error cannot applied.
We not are record ignorant appellant’s on motion to for an confession in- suppress alleged voluntariness, which was the circuit We suppressed by judge. that, are aware of the fact on cross-examination Sims fully chambers, at this took hearing following place: Well, Orr and Q. your accomplices, this Charles Freddy Coleman, were at the with time of this kill- present you and, weren’t or were with ing, them they, you present there?
A. Yes. So when to confessed in this you
Q. participating and— robbery,
MR. If the Court BANKS: we are to ob- please, going I to that line of don’t it see ject relevant questioning. this on the voluntariness. hearing particular COURT: What was your question?
MR. PEARSON: When he confessed to participating this confessed in this robbery participating killing it was true?
A. I had done—
COURT: The will be overruled. objection A. I had done listened to the statement Orr Sheriff, to Coleman had and I know given exactly what had. When had denied to the sheriff and the officers
Q. you times, several weren’t there present and didn’t you it, and didn’t know participate about were anything you weren’t lying, you? honor,
MR. BANKS: If the Court I have please, to your to that also. He is object this man to point requiring himself, and we are here testify against to determine or whether not this confession is on his voluntary part; not to into what the confession is. go MR. PEARSON: It to his goes honor. credibility, your COURT: This will be objection sustained. All did at first several
Q. times right, you deny having in or been at the time participated present killing, did not not?
A. Right. to them statement make a truthful did then And later Q. not? did not and killing, in the robbery as to your part Yes, on tape. it, then first change your after denying didWhy Q. you, what happened? the truth about them mind tell was— A. Because I I honor, am the Court your If
MR. BANKS: please, attorney but the to prosecuting have object, sorry this man make testify terms couching questions about not him something He is himself. asking against He is about the confession. asking voluntariness of told the truth. whether or not he You overruled. may will be COURT: objection proceed. not have
It is
could
self-evident these answers
possibly
Even
used
as evidence-in-chief.
though
been
the state
at-
made by appellant’s
court’s
on the
rulings
objections
inconsistent,
were
seem
improper
torney
questions
even on
be considered for
answers could not
any purpose,
404 U.S.
v.
voluntariness.
Twomey,
question
Lego
State,
*9
v.
254
619,
618
Rhone
S.
(1972);
Ed. 2d
92 Ct.
30 L.
S.
Commonwealth,214 Va.
(Miss., 1971);
750
v.
2d
Washington
Burke,
244,
27 Wis. 2d
737,
(1974);
204 S.E.
266
State v.
2d
Thomas,
2d
548,
La.
23 S.
v.
208
N.W. 2d 753
State
(1965);
133
State,
69,
555
202 S. 2d
44
(1945);
v.
Ala.
212
Isbell
App.
(1967);
Inman,
v.
Cir.)
U.S.
monwealth, Walker, v. 374 331, Mich. People N.W. supra; also, Burke, 2d 87 v. (1965). Thomas, See State State v. supra; supra. doubt about of admissions
Any inadmissibility from the accused this is laid to wrung cross-examination by States, 377, rest v. Simmons United 390 U.S. by S. Ct. case, L. (1968). Ed. 2d 1247 In that the court said: The rule the courts below does not by adopted a defendant a condition which merely impose upon may deter him from a Fourth Amendment asserting objec- tion —it a condition of kind imposes a to which this Court has sensitive. For a defen- been always peculiarly dant to who wishes establish do must so at the standing risk that the words which he utters later be used to may incriminate him. Those courts which have allowed the admission of to establish have given testimony standing reasoned that there is no violation of the Fifth Amendment’s Self-Incrimination Clause because the matter, As an abstract this testimony voluntary. well be true. defendant is may in A to “compelled” testify of a motion to in the support only sense that suppress if he refrains from he will have to a testifying forgo benefit, and is not as a always involuntary matter of law because it to is a simply obtain given However, benefit. which underlies this assumption is that the defendant has a choice: he reasoning may refuse to the benefit. testify When this give up is to a situation in assumption applied which “benefit” to be is that afforded another gained provi- sion of Bill of an undeniable tension Rights, Thus, in created. this case Garrett was to either obliged believed, counsel, what he with advice give up to be a or, effect, valid Fourth Amendment claim legal waive his Fifth Amendment self- privilege against circumstances, incrimination. In these we find it in- tolerable that one should constitutional to be have right surrendered order to assert We another. therefore hold that when a defendant testifies in of mo- support tion on evidence suppress Fourth Amendment *10 not thereafter be grounds, admitted may testimony him at trial on the against issue of unless he guilt makes no objection.
951 to a reference was used with True it is that this langugage seizure, it but of a the fruits search to motion suppress v. confessions. has to cases Lindsey been involving applied 1973). Craven, Cal., cannot con- We (C.D. F. Supp. for not be reason that could applying ceive of any given evidence. and all motions rule of Simmonsto suppress any must do that Elmore’s We not mean to testimony say if other than be on a retrial excluded testimony necessarily Gilbert, Here, as in we are us be that before should developed. instance, the told at the For little about what lineup. occurred of the that about only composition lineup testimony white No ever of five shirts. one Elmore that all wore persons or differences in the undertook to resemblance show any Elmore of whose photographs appearances people picked crime, or mis- out and the of the reason for any perpetrators than other that Elmore identification misdescription in shock. under medication perhaps an We have heretofore avoided independent requiring in case where the admissibili- of the Denno every type hearing on the in-court ty of questioned We have assertion that it is tainted by pretrial procedures. hearing a held should be conducted in that such a recently State, 2d 528 S.W. 258 Ark. v. case. Wright particular ad- come to time has case. The such is another (1975). This whe- basic to the question more directly ourselves dress law, there our own Under are such required. ther hearings are that be addressed to the question many inquiries might direct could not be that admissibility, eliciting permitted State, 867, 302 v. 227 Ark. evidence. See Trimble & Williams State, 752, 447 2d 83; S.W. 2d & v. 247 Ark. S.W. Spivey Payne of ad- 846. It is to determine the difficult extremely question direct when entire particularly missibility examination, examination, in the of the There is conducted jury. presence is, least, in statement of the a suggestion say strong v. United States Court Gilbert California, supra, Supreme identification without viz: “The admission the in-court were not tainted first illegal determining was constitutional but were of origin lineup independent We that this error.” are aware fact fully specific ques- court, but it seems essential was not the trial tion raised We the court on retrial. we treat it for guidance *11 date, that, in now conclude after an in- cases tried this chambers should be conducted to determine ad- hearing of in-court identification whenever an missibility testimony is made on it is tainted un- objection by ground constitutional or identification pretrial lineup “showup” It well trial be that the court cannot make a procedures. may final determination at iden- without a courtroom attempt tification, but this should not be done in the presence Furthermore, in such a other than witnesses jury. hearing heard be on the person giving testimony may of even their question admissibility, though testimony might state, not be admissible in the In trial. this case the on the us, record before not met burden of on has its the ad- proof retrial, of the identification. On other available missibility on the evidence should be heard. subject There are other which are not to arise questions likely arise, new trial. will a We those that are discuss upon likely i.e., the that the evidence of death was insufficient argument a and that mistrial on should have been declared account of statements of the prosecuting attorney closing argument.
There was as to of a cause death mortician. by Police Officer found Mrs. Elmore on the service Riney lying restroom station floor on saw near the which he bloodstains where her head was He found no did spot but lying. pulse, wounds, find two of her one which was head gunshot the other her breast. She to him be dead. appeared mortician, who had examined with bodies many gunshot wounds his 30 of who years had during also experience, had occasion to ascertain from burns the of powder proximity bodies, a wound in a found a bullet hole weapon inflicting breast, about an inch below Mrs. Elmore’s left which he classified as an entrance wound because of the presence burns. He an exit wound found inch below powder about one her shoulder blade. He in her a right found left ear wound he called burns, an wound because of entry powder larger exit wound about one inch below and one inch to right her ear. He Mrs. testified that Elmore was dead and right in his her death caused these opinion gunshot wounds. Mrs. Elmore’s was at the when he body hospital it A up. Mrs. Elmore’s as it picked photograph body restroom floor introduced. was made and on the found knew she was wife because he he left his Elmore testified that dead. on this hinges point apparently argument
Appellant’s *12 aor of an of evidence of the results absence autopsy the upon not of death. This is the cause medical doctor’s opinion have held that Ark. case. We heretofore in every required the ad 1973) did not affect 42-611 et Stat. Ann. seq. (Supp. § of evidence vic or the of death of a of death cause missibility or an tim crime medical on report of a expert autopsy medical ex other than the state a medical prepared by expert State, 754, 733. We 519 S.W. 2d aminer. v. 257 Ark. Stewart or anof have also held that the testimony attending physician admitted without reference on be the may surgeon subject State, Furthermore, an v. Stewart supra. expert autopsy. or deci is not No statute always judicial testimony required. State, 720, v. 34 Ark. sion the of Edmonds has efficacy impaired of death of death and cause where we held that both fact and circumstantial be shown might by strong unequivocal doubt, no for reasonable evidence such as to leave ground delecti, that, its is some where there corpus proof also, to the is left See and sufficiency jury. weight properly State, 1163, Ark. 63 335. been 187 S.W. 2d It has McDaniels v. evidence of the fact of death said that most satisfactory who were when it or of those present happened testimony deceased, with who, been personally acquainted having after life is extinct. have seen and recognized body State, Ark. 331. There is no v. 43 Cavaness requirement State, 1002, v. 211 204 Glover Ark. there be medical testimony. 2d 373. S.W. held the sufficient to show
In McDaniels we
evidence
when it was shown that a deceased
shot
cause of death
the left
below the
and in the
heart
through
eye,
leg
We
an undertaker
thereafter took
body.
shortly
charge
direct and
also took into consideration there
positive
was shot in such a
undertaker that the victim
testimony
here was
The evidence
suf
manner as to
death.
produce
State,
904,
799;
489
2d
v.
253 Ark.
S.W.
ficient. See Mosby
State,
State,
193,
361;
v.
154
v.
120 Ark.
179
Outler
S.W.
Johnson
598,
Ark.
Appellant objected prosecuting attorney’s undenied, reference to as uncontradicted and as a comment on defendant’s failure to and moved for a testify, mistrial. to declare a Overruling objection refusing State, 1197, mistrial was not error. Moorev. 244 Ark. 429 S.W. State, 122; 996, 923; 2d Edensv. 363 235 Ark. S.W. 2d Ferrellv. State, 742, State, 15; Ark. S.W. 2d v. Davis 96 Ark. S.W. 2d 547. is reversed and the cause remanded for a judgment
new trial.
Jones, dissents. J.,
Roy, not J., participating. *13 with Fred I do not Jones, agree Justice, dissenting. J. the reversed in that the conviction should be majority opinion this case.
This was a station case attended typical robbery filling the additional of feature murder to avoid future by identifica- tion which is also in In cases. the typical robbery becoming case at bar three individuals drove into a station filling attended Mr. Elmore and his wife and while one of them by
waited in their automobile the other two confronted Mr. and Mrs. Elmore with rifles and the cash without emptied register and of the robbers without resistance. One took Mr. difficulty .38 Elmore’s caliber from near the cash revolver register. herded the Elmores into a restroom and while one of They rifle, them barred the door with a the other one executed Mrs. Elmore her the and chest by shooting through through the head with the revolver. then to execute They attempted Elmore, Mr. the him only eyewitness, remaining by shooting with the revolver his wounds were but not fatal. The gunshot with robbers then drove reason to there believe away ample would no be who could them if identify they living person and, were ever that their constitutional apprehended; rights, if and court properly by pleaded presented appointed counsel, would and insulate them fully against possi- protect ble conviction evidence. on circumstantial Coleman, were robbers, and Orr of the two
Apparently con- recorded and made tape in Missouri apprehended the Sims as which the appellant in implicated fessions into and was taken Sims custody member the trio. third two, the other he the statements of ap- recorded after hearing confession, but his confession a recorded also made parently trial court the was as involuntary partially by suppressed Sims, effect, in said continued after because the interrogation “-Drarco” At the in-chambers hearing he had nothing say. that he was with Sims admitted on the motion to suppress, As when the crimes were committed. and Orr Coleman brief, “Yes Freddie Orr Sims said: abstracted appellant’s me of this were with at time and Charles Coleman present was I with This statement and was them.” killing present it of the and I mention made outside the only hearing jury Elmore not iden- for that Mr. did here as my opinion preface trial man at the or line-up. tify wrong not the trial court erred in I do suppressing suggest or else confession. does the Sims’ Neither anyone majority Mr. man. Elmore identified the Sims wrong suggest in a and was identified by surviving placed line-up readily case, nullifies victim. reverses this majority thereby sur- the in-court identification eyewitness only crime, victim of because viving simply appellant’s not notified the time court-appointed attorney There no mind that my place line-up. question Mr. Elmore in-court from the made his Sims he ordeal he when was murdered and wife experienced *14 was wounded under the inside of his station lights filling than from Sims in rather a line-up. seeing Mr. said he was not the life of the Elmore seeking Sims one who killed his Sims because was not the appellant said first time he wife. He that the he saw Sims was standing a rifle in his hands. the office door in his station with filling was also in main He said another part filling person He testified station and that he likewise had a rifle. then follows: part
“Q. your station wife shot Where killed? bathroom;
A. In the the men’s bathroom. Were there? Q. you present Yes, A. sir. And was this
Q. defendant there? present Yes, A. sir. Where?
Q. door, A. at the sir. Right What was he Q. at that time? carrying A. He was a rifle. carrying Did he himself Q. shoot or wife? you your A. He did not shoot wife. my The other did? man Q.
A. The other man did. did What he shoot her
Q. with?
A. Sir? Whát did he shoot
Q. with? her A. A .38 calibre pistol. Do know
Q. you where the came from? pistol It was It came from the my pistol. side cash or out of the register drawer there. Do how know
Q. you shots were fired? many *15 A. Five shots. In the restroom?
Q. A. restroom, In the sir.” yes, Mr. Elmore said it was between and 12:00 o’clock .11:00 at when the men night at his station. He stopped said filling he did not deal of attention to pay great them until after he had serviced a car and it had left. He said he then went back into station; that one of the men filling was at and he then telephone, testified as follows: . . “A. . on the water sitting fountain and [0]ne he throwed a rifle on me and said ‘Turn out your lights like just you’re closing up.’ And
Q. was that this defendant? No, sir,
A. it was another one. And did do that?
Q. you Yes,
A. sir. Did turn off Q. you like your lights were clos- just you ing up? Yes,
A. sir. Then what
Q. happened? A. We the cash and told opened register them to take what wanted don’t hurt us. Did
Q. cash you open your register?
A. wife did. My And did defendant, or
Q. wife tell this you your take want, what you and don’t hurt you? Yes, sir. Did
Q. before the they say anything shooting? *16 them.
A. said that we would identify They what? Said Q.
A. said that we would them. identify They statement Did this defendant make that Q. you? No, sir, me. A. the other one made that statement Then what Q. happened?
A. and told in the us to They got money go bathroom, in the and tried to us same coat. put Tried what now? Q.
A. Tried to us the same coat put together. ?Coat Q. Yes,
A. sir. I don’t understand what are about. Q. you talking wear, A. a coat like old an you army jacket, Just believe. wanted to both wife in Q. They you put your that? Yes,
A. sir. mean You both arms in the same coat? Q. put your Yes, A. sir. What then?
Q. happened A. her shot wife and I her and let They my grabbed down to the floor. her? Who shot
Q. I A. other was with him. don’t know his guy name. her? But he shot wife
Q. your you grabbed I her let her down. And grabbed Then what Q. happened? *17 fired,
A. The second shot he was still at her. shooting me, The third shot hit in and went there and came right I out there bent over. (indicating). Were shot more than once?
Q. you times, A. I was shot three sir. yes, on, When the where was this Q. shooting going defendant standing?
A. in the bathroom door to us in standing keep He there. You think he was there to from
Q. standing keep you out of the room? running
A. Yes, sir. he, How close to wife was
Q. you his your holding rifle to hold in there? you I would at least three feet.”
A- say It is obvious from Mr. Elmore’s on direct examina- testimony tion the he had see ample assailants. opportunity
The basis of Mr. Elmore’s identification of Sims was out on his cross-examination. clearly brought On cross- examination Mr. Elmore testified as follows: part Elmore, Mr.
“Q. that have you testimony just indicates given that identified you that positively Danny Sims took events? part night Yes,
A. sir. And the have here Q. before you given this would what we consider emotional? jury highly Yes, sir. This is I would Q. like something express my sincere for loss. we sympathy your What you tragic for, are here understand, will is the you most positive in order that we proof achieve may Is that cor- justice. rect?
A. That is correct. And we want Q. to be positive doubt that beyond any no mistake has been made. Is that correct?
A. That is correct. *18 Are me and
Q. you this telling that telling jury are you have not made a positive you mistake?
A. am man, I that that is the so God telling you be my helper.
[*] [*] # A. I don’t want this man’s life. He didn’t kill wife. my This man didn’t.
[*] [*] [*] Tell ... us how this Q. noticed you again particular individual there at station? your A. When a man has come in to rob look at you, you him When that will them if good. say they you identify didn’t hurt look at better. them they you, you I believe testified on Q. direct examination that you in, when first came used they they phone? Yes, A. sir. So didn’t know at
Q. you were point they go- to rob ing you? No,
A. sir. Then how can tell Q. started you jury you making such a identification of them? good A. me, Because when throwed rifles on I looked at them. You looked at
Q,. them instead of the rifles? Yes,
A. sir. I assume Q. were fear of life? you Is that cor- your rect?
A. I said I looked at them real good. And Q.. stood in you court and looked open you around the entire courtroom and out picked Danny Sims one man in station that with a rifle? your night Yes, sir. [*] [*] [*] How was his hair?
Q. or short? Long *19 A. His hair was bushed out more than it is now. How was he dressed? Q.
A. I don’t recall his dress because I was looking in the face. straight Did look at the
Q. you other two? No, sir, A. one didn’t out of the I car. didn’t get see him.
Q Q. One didn’t out of the car? get A.A. One didn’t out of the car. get What did the Q. other one look like?
A. The neck, other had a a little darker com- large Sims; than plected a little Danny a little heavier. higher; I believe Q,. stated you that on direct examination that turned the they out? Is that lights right?
A. out, turned They part sir. lights yes, What did Q. turn part out?
A. All outside my on; We left the lights. inside lights like I just was closing up. didn’t
Q. turn the They inside off? lights No, A. sir. You are
Q. that? positive A. I am sure of it. Was the bathroom
Q. on? light Yes, sir.” Mr. Elmore was then the defense counsel questioned by as to the He said that in line-up procedure. there line-up shirts, were five men all white and that he wearing recognized Sims as soon as he him saw and did not appellant too pay much attention to the other individuals He was line-up. asked to the other describe individuals in the and he line-up said:
“A. I I After saw didn’t look at the Danny, rest of I them. turned and walked out. You didn’t look at them at all?
Q.
963 I knowed him at the time I saw him.” Mr. Elmore identified Sims positively emphatically trial who at the as the robber confronted him with the rifle and the one who barred the restroom door while his wife was executed with his own and with which he revolver was being also shot. The fact that Mr. Elmore exonerated Sims one who did the credit to his iden- adds actually shooting tification. The identification was not mentioned line-up by at the trial and it was prosecution mentioned although by counsel, defense there was whatever to nothing suggest witness Mr. Elmore have identified the prosecuting may trial, his at the or at the or that in-court wrong person line-up identification was based at all on observation. line-up officers should be censored for
Certainly police not Sims’ of the time advising of the attorney intended place but there is to indicate the line-up, was im- nothing line-up conducted or in properly To reverse any. this way suggestive. case and the in-court identification thereby nullify victim who looked his assailant in the face while only living the crime committed, because being Sims’ at- simply is, not called to torney attend the line-up my opinion, substance, form above putting under the evidence in this this case. court should be concerned with whether Certainly man, witness identified the prosecuting but wrong reverse this case because of the dereliction of the of- police ficers in not advising appellant’s intended attorney is to reverse the conviction because of harmless error. line-up I am not unmindful of the United States Court Supreme Wade, decision in UnitedStates v. U.S. Ct. 1926 S. (1967). In the trial of that two case bank employees, robbed, who had been when asked on direct examination if courtroom, the robber was in the to Wade. simply pointed The prior without Wade’s line-up knowledge was then attorney elicited from both on cross- employees examination, and the Court of that case as Supreme disposed follows:
“We, therefore, think the to be appropriate procedure followed is vacate the conviction to determine whether the in-court identification had an independent *21 the event, the introduction
source, or whether in any error.” was harmless evidence Wade if retrial of at the occurred no record of what We have bank the two to trial. Perhaps he was brought again the never would forget that on retrial they testified employees he when in his eyes or the on Wade’s face expression look their and that will kill or I said, you,” over the “Hand money face- on such was based independent identification in-court in the him encounter, than on again rather seeing to-face retrial, in all at was the If such line-up. police it hand the other convicted. On was Wade again probability at the have testified witnesses may is prosecuting possible “We saw the first trial. did at the retrial as they apparently — in the courtroom he is now at a defendant line-up police the man.” and is that left in Wade the decision me that
It is obvious to The such “independent for procedure. open just logical have meant referred to in Wadecould source” only “indepen- Court dent of the identification.” Surely line-up Supreme vacuum, retried in did not remand the Wade case to be as to the did it remand Wade for further neither inquiry It remanded Wade for at the line-up procedure identification. and whether it further as to the in-court inquiry identification was from some source of the identifica- independent line-up tion. in Gilbert v. U.S. California, Supreme
Also of in-court identifications that the admission Court held were of first independent without determining an was constitutional not tainted by illegal line-up origin error, court also said: in that case the but Wade, “However, an in- record does not as in permit in-court identifications at whether the formed judgment an source. of the trial had the two independent stages con- a vacation therefore entitled only Gilbert as the of such viction pending proceedings holding af- deem California Court may appropriate Supreme in- that the to establish State the ford the opportunity source, or that an court identifications had independent their event harmless introduction in evidence was in any error.”
I am in the at bar there convinced that case thoroughly of Sims evidence of ample totally pre-trial identification, independent line-up evidence exists in this case that was already required Court remand Wade and Gilbert. Supreme upon out that Mr. had seen the Elmore majority point times in- Sims at other Sims’ appellant during pre-trial in- *22 carceration indicate that Elmore have been might fluenced extent in his in-court some identification. thereby the would void an in-court not Surely majority if the victim of crime chance see the accused should by between the commission of the crime and the trial of ac- the cused.
I am andWade opposed requirements extending Gilbertone bit therein set out as beyond requirements I of those perceive to state. If plain language opinions Elmore’s did not reveal an supra, testimony, independent identification, source for his in-court I cannot conceive of what could become an source under the possibly independent facts in this case. If the evidence in the case at bar not does Gilbert, meet “constitutional muster” under Wadeand I think the court where that was coined should so phrase say better what would language constitute an defining indepen- dent source.
Of course the United States Court will have no Supreme to better define opportunity source” so “independent long state courts conclude that it means other appellate something than face-to-face confrontation at the commission of the crime and remand the to the cases trial court for additional identifications, into the or reverse inquiry validity line-up and dismiss because of or tainted iden- in-court improper tifications.
Sims elected to not personally affirmatively testify the case at bar and it is obvious to me from the clear and con- evidence, that Mr. Elmore’s in-court identification of vincing Sims was based on observation of the accused entirely
during the commission crimes and was not tainted It is further- slightest degree by line-up procedure. conclusion, more failure to advise at- my appellant’s conducted, when the was to be harmless torney line-up error under the circumstances and evidence in totality this case.
I would affirm. Raymond FITZGERALD et al Jr.
v. INVESTORS PREFERRED LIFE
INSURANCE COMPANY 2d 195 75-132 S.W. delivered Opinion December