*1 Iowa, Appellee, STATE of
v. Essary, ESSARY,
Bryan Merrill a/k/a Appellant. 53766.
No.
Supreme of Iowa.
5,May 1970. Hart,
McCarthy ap- Davenport, & for pellant. Turner, Gen., Atty.
Richard C. Michael Laughlin, Atty. Asst. and Edward Gen., J. Wehr, Atty., County ap- N. Davenport, for pellee.
MOORE, Chief Justice. Defendant, Bryan Essary, charged, tried, convicted and sentenced for crime of robbery aggravation, violation Code section has appeаled. 711.2 and We affirm.
Defendant asserts the trial court erred failing to sustain his motion to strike the of Ivan testimony Stiff and Thomas On- dracek identifying him as participant armed of the Probstei Inn on 2, thereby 1968and denied him a fair trial.
Defendant states in his is only brief there questiоn in this case—“Can witness permitted to make an identification of an accused in court if testimony pre- ceded an improper pretrial viewing some sort?” argues each of *2 855 379, 384, 967, 1247, to him out pointed S.Ct. 19 L.Ed.2d defendant 88 witnesses 1253; Denno, lineup was not suрra, a station where Stovall v. 388 U.S. police 293, 301, 302, 1967, S.Ct. L.Ed.2d 87 used. 18 1199, 1206; Hanks 10 States, v. United brief and filing of defendant’s I. Since Cir., 171, 174; 388 F.2d Caruso v. United v. in State argument in case we have this States, Cir., 558, 2 559; F.2d Bates 406 v. Wisniewski, Iowa, 882, con- N.W.2d 171 States, 36, U.S.App.D.C. United 132 405 length the author- at and discussed sidered 1104, F.2d 1106. relies, namеly, United he ities on which 1926, record, 218, includ- Study Wade, III. of the entire 87 S.Ct. v. U.S. States 388 about transcript, ing 388 the trial discloses California, 1149; Gilbert v. L.Ed.2d 18 1178, 2, en- four men 1951, 12:45 a. 263, 18 m. 1968 87 L.Ed.2d U.S. S.Ct. Denno, 293, in Daven- tered Probstei Inn located 87 v. S.Ct. and Stovall 388 U.S. two coming door and port, two in the 1967, east 1199. L.Ed.2d 18 pair armed of each the west door. One Stiff, pistol. proprietor, a The Ivan with repeat we said not what We need and there three behind the bar were 884 except page from this Wisniewski bartender, recently a off du- customers and noted that “It 171 should N.W.2d: ty, рresent. They stickup” said “This is a pro illegal an identification out-of-court everybody present told stand and up to necessarily bar identifica cedure does not put their hands on bar which all ex- It at testimony by that witness trial. tion Schneckloth, cеpt the cus- Victor the ‘tainted’ merely precludes the use of tomers, room. was then in the rest who clear, requires and con identification and he he thrown returned therefrom was When proof that identification made vincing to the down front pulling flоor. After independent origin and does had an at trial shades tavern those of the validity upon the illegal not for its depend put bar ordered their hands on the were to lineup procedure.” In addition to Wade bar. the rob- their wallets on the Onе of Gilbert, see, Fitts v. cited therein picked up as he wallet searched bers each 518, 519; States, Cir., F.2d United 5 406 personal and took from victim certain Cannito, 575, 183Neb. 162 N.W.2d State v. property. After searched each 261; State, 260, Fla.App., 215 Anderson v. searching ordered on After to the floor. lie State, 618, 621; 620, Shepard Fla. v. So.2d bar, front went behind 11, State, 12; App., Tyler 213 5 So.2d v. billfold, him, took Stiff’s searched ordered 595, 596; 158, 592, Md.App. 245 A.2d floor, regis- him to lie on the the cash rifled Carrothers, 347, 443 P.2d State 79 N.M. v. ter, property personal took certain and Stiff 517, 519. questioned money and about additional keys his to automobile. II. The rule now well estab lished that each case must be considered on completing After their activities behind its own facts and that convictions based on the bar rоbbers went three out eyewitness following at The asked door. the location of fourth pretrial a set identification will be aside telephone, took a shot at it then left. pretrial if the so identification was of the to Some victims rushed window а impermissibly suggestive as rise give get observed the men a Pon- four irreparable substantial very likelihood away. police tiac automobile and drive In misidentification. such an event, immediately notified. Each robber at defendant would be denied process due attempted part conceal of his scene law. A claim such as made defendant dickey face. Two over wore black scarves here must be light evaluated in of the total the lower part large of his faсe. One wore ity surrounding fourth, circumstances. group, A goggles. tallest of the States, 377, Simmons v. United 390 U.S. large paper over head a sack with keep- ticularly thin line He had trouble noticed mus-
eye holes. and mouth looking tache peculiar had a another ing it on. nose—“sort of a bulbous end”. iden- two robbery after the A few minutes tified the found in the Pontiac as guns Island, police ob- Illinois officers those used and identified his *3 the automobile, which a fit Pontiac served billfold, keys a pouch, trucker’s his cаr and watch description they been alerted to personal property by rob- other taken the bridge for, Mississippi the River come off bers. driven at being It was Island. after a short high speed a and rate On cross-examination that Stiff testified by officers. There pursuit stopped was the days three or four after robbery the he was They the fit four men the Pontiac. were Davenport City called to the Hall and had been de- description the four that by told Detective Fee—“I am take going tо up the scribed as who held tavern. you around you here to a window and have right Essary occupied rear Defendant the look and you recognize any- see if can the They put seat. under arrest and body.” He to was then taken the door оf the automobile searched thereafter with Davenport the Municipal room and written of the permission driver. Fee they said “There are in there.” When through Stiff looked glass of the closed upon searching The officers the Pontiac сourt room door he observed at least five seat, wal- guns found two under front persons. Two were where he lets, pouch, bills and a trucker’s coins under later learned was in front bench. of the seats, cigarette both coins in the wells and He was аble part to see a of the court items which several were identified on room through when he looked glass. as being used or taken in the Probstei Inn Fee, He said to “Those are the men.” He robbery. Two black dickies were found on identified defendant and another Essary right and rear floor a watch taken from who he Gary later learned was Adams. one of the victims found on rear Essary was wearing clothing the same seat automobile. by robbery observed Stiff scene. direct examination testified On Stiff Thomas Ondracek related the events of entry from the time of their he concentrat- including taking his bill- ap- ed a study of the He had robbers. fold, a check from his employer and five proximately five minutes observe and to dollars cash. His testimony on direct ex- study them as he stood with his hands on amination includes: the bar while other victims were they searched and later when came behind “Q. you And would jury describe to the the bar and searched He stated while him. the man that came in first? Well, A. he on the flоor he was oh and his back con- foot, ten; was about five and he a hat his tinued observations as rifled the cap, or hat, kind fishing type of a register personal cash prop- took other large pair a of goggles motorcycle likе erty from behind the He stated de- bar. goggle, kind of orange, that covered most Essary fendant keeping had trouble of his face. paper head, sack over his “it stay didn’t on times”, it, a it few had three holes in was “Q. And did he have other dis- loose and position that from on the floor tinguishing features on him? A. got good he a Essary’s look at face. mustache, a a pencil-type mustache. sary had talked to Stiff and where asked “Q. Was he carrying anything? A. money. there was more posi- Stiff made a Yes, he had gun in his hand. tive Essary. in-court Stiff also described apparel “Q. wearing And could you describe that disguises worn par- Well, the robbers. He jury? A. it was a small automatic you really didn’t other fellows “Q. it pistol, or type of revolver ** A. true? it, closely at, isn’t that too see. look on I could shiny sides white or right. That’s him in? A. Now, follow did a man “Q. certainly not at- you And would “Q. Yes. anybody identification of tempt make an that man you describe “Q. And would goggles and the except this man with the dressed, A. jury? and how he had, isn’t that true? this fellow mustache Well, attention pay too much this didn’t Positively. A. or the other him, to the one that was behind Now, that, later, you say “Q. Yes. side; my attention the other on night you I believe that identified Throughout, first one. more on Island; Essary in Rock am I correct glancing throughout the incident I was *4 you in quoting that ? A. I saw him with which; one was know which just I don’t —I Riedel— dickey-type of I two of them know one had their nose and up over sweaters “Q. Now —A. The other one— head; I don’t know but paper sack on “Q. go I would like to that with * * * him. came in behind which one you. yоu Byron Essary? Where did see A. In Island the Rock Police Station. Now, you see did have occasion to “Q. evening? that any men later on of these “Q. And in whereabout the Rock Island shortly Yes; after very them I saw A. I guess booking Police ? A. in the Station Police Station. that Rock Island station, they it. call there? And see over “Q. you whom “Q. they in a lineup there? A. Were one, Well, of I the A. identified first No; just the— mustache; course, and there with “Q. you ever asked to Were them view ones him. three other lineup in the A. No. ? you one the three “Q. And do see of anybody And did “Q. point out that with him here in other ones you Essary to at the Rock Police Island Yes, do. A. I courtroom? people as being Station? A. the four Just caught. that were you out “Q. point And him would people? A. “Q. As four gentleman is jury, please? A. This Right. right over here. you “Q. And course now base your “Q. is And he dressed? A. With how upon you saw at identification then what sport glasses. shirt on and green Station; isn’t that Island Police right. That’s correct ? A. the record show
“MR. Let BERGER: defend- that the witness has indicated the upon you “Q. any And not observation ant, Essary.” Mr. night? at that A. No. made the tavern policeman you those “Q. Did some tell Ondracek’s cross-examination includes: men were the four men? A. four your that Now, ‘had your testimony, stuff’. “Q. recall examination, prеliminary both here and on “Q. They up are the four men that held you got man that at look good No, tavern? A. the four men that night, at night the tavern that and the our stuff. 2nd, early morning goggles the man dark “Q. your with the and the That had stuff. And outside mustache; Right. isn’t you attempt that corrеct ? A. of that wouldn’t to make iden- “tainted” iden- viewing was a except whether that anybody,
tification, you, would tification. the one. A. man? Just supports amply Adams, A. The record correct? “Q. Gary made an court’s not Ondracek finding Right.” as one in-court of defendant testimony de- At of Ondracek’s the close robbery. present identi- strike the moved to fense counsel assigned errors Defendant’s unten- it are basis on the testimony of Stiff fication able. He afforded a fair trial. showing pursuant was made Municipаl sary Davenport in the Affirmed. of his constitutional room violation rights Amend- the Fifth and Sixth under LARSON, STUART, MASON, BECK- ments to the Constitution of United ER, UHLENHOPP, JJ., REES and con- iden- to strike moved States. Counsel cur. testimony of on the tification Ondracek therein grounds same constitutional RAWLINGS, LeGRAND and dis- JJ., stated: if identification was “That sent. witness, Ondracek, of made Thomas Byron Essary, also LeGRAND, the defendant it must (dissenting). Justice *5 upon his shown necessarily based agree testimony I the identification pointed defendant out the Ivan an independent was based on Stiff sary in Island as Police Station origin properly and was admitted. one of was at tavern of men, who alleged Ivan at the time the Stiff However, ground I dissent on occurred; and that the identification testimony admission of Thomas 'On- by lineup.” not made in dracek, whеther it amounted to an in-court not, identification was error. Defend- or considering After defendant’s cited cases ant by was described as Ondracek Wade, Gilbert, Stovall Simmons caught” the “four that were as one of trial court denied defendant’s mоtion the “four stuff.” that have [our] strike testimony the identification of Stiff testimony my After this it is futile witness stated: “The did not Ondracek does, opinion say, majority as the identify defendant as one of identify did not Ondracek defendant present in the tavern time robbery. of those believe committing alleged robbery, and the motion therefore his testimony designed to—and did— as to the application testimony establish defendant was one of the four overruled.” participants by in the crime. evidence which this was proрerly done was not ad- agree rulings We with the by any missible standard. It was based en- trial court. The in-court identification of tirely on improper police an defendant has independent Stiff an procedure. prejudicial It was and I would origin depend validity does not for its reverse for a new trial. upon alleged illegal of defend viewing ant in municipal courtroom. Under
record question RAWLINGS, we do not reach the J., joins this dissent.