State v. FerrisState v. Ferris
- Reporters:
- , ,
- Before:
- White
Thе defendants, Norma and Daniel Ferris, were found guilty of two counts of assault in the county court for Lancaster County, Nebraska. Each defendant was sentenced to 6 months’ imрrisonment on count I and to 9 months’ imprisonment on count II, with sentences to be served consecutively in the county jail. The defendants appealed to the District Court fоr Lancaster County, which affirmed the convictions but reduced the sentences to 1 month’s imprisonment on count I and to 3 months’ imprisonment on count II, to be served consecutively. The defendants appeal to this court, assigning as error (1) that they were denied due process in an in-court voice identification procedure in the cоunty court,
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and (2) that the county court erred under
The victim, who is blind, was assaulted in her home where she resided alone. The record reveals that the victim had known Norma since Norma’s birth, and Daniel since 1978. On May 27, 1981, the defendants went to the victim’s residence, requesting a $125 loan to use as a downpayment on a car. The victim refused to loan the money. Before the defendants left, they told the victim that “We’re going to have that car, one way, or another.”
On May 30, 1981, the defendants returned to the victim’s home and repeated their demands for the $125. The victim refused, whereupon Daniel Ferris grabbed the victim’s arm and began to twist it while Norma Ferris slаpped her in the face. The victim begged the defendants to stop, which they agreed to do if she would get her purse. Upon doing so, the defendants ordered her to аccompany them to a used car lot. The defendants proceeded to purchase the car they wanted on the lot, with the victim providing $125 as a downpaymеnt. The victim was then returned home. Several bruises appeared on her arm a few days later.
On June 17, 1981, the defendants again returned to the victim’s home and forced their way in. The defendants knocked the victim down and repeatedly kicked her while she was on the floor. When the victim pleaded with the defendants to quit beating her, they replied: “Well, why did you call your sister, and tell her?” The victim stated that she did not call her sister, but, rather, her sister had called her. The defendants admonished her to say nothing of the incidents or she would receive more of the same *837 treatment, and next time “wouldn’t be able to talk.” Shortly after defendants had left, the victim received a telephone call from hеr sister inquiring if anything was wrong. She informed her sister of the beating. The sister told her to call the police immediately. The police investigated, and the defendants were charged with two counts of assault in the third degree.
At trial in the county court a voice identification was conducted due to the fact that the victim was blind. The court selected six vоices, three males and three females, which included the defendants. Each male stated: “My name is Daniel Ferris. I am unemployed. I live at 418 North 27th, Lincoln, Nebraska.” Each fеmale stated: “My name is Norma Ferris. I am unemployed. I live at 418 North 27th, Lincoln, Nebraska.” The victim picked out the voices of both defendants from among the other voicеs. The county court then announced from the bench that the victim had identified the defendants.
The defendants contend that the county court violated their due procеss rights by conducting an in-court voice identification which was unduly suggestive. The specific ground for the defendants’ due process argument is that the people whose voiсes were offered in the identification process for comparison with those of the defendants were markedly different because they were better educated.
A determination as to whether identification procedures were unnecessarily suggestive and conducive to substantial likelihood of irreparable mistaken identification is to be made by consideration of the totality of the circumstances surrounding the procedures. State v. Harris, 205 Neb. 844, 290 N.W.2d 645 (1980).
We do not think that the admission of testimony relative to the in-сourt voice identification of the defendants deprived the defendants of due process of *838 law or in any way violated their constitutional right to a fair trial. The circumstances under which the defendants’ voices were exhibited in court for identification were not unnecessarily suggestive and conducive to irreparable mistaken identification. State v. Harris, supra. When there is a sufficient basis established for a voice identification, there is no essential difference between requiring the defendants to speak and having them stand for purposes of identification.
There was sufficient foundation establishing the victim’s familiarity with the defendants’ voices. The victim knew Norma Ferris since she was bom and knеw Daniel Ferris for at least 3 years prior to the assaults. The victim had heard each of the defendants speak several times on the days in question. The basis for her identification was challenged on cross-examination. Under, the circumstances, we find that her in-court voice identification of the defendants was admissible.
The defendants mаintain that merely because other voices were offered for comparison, a lineup was held. However, all that occurred in this case was an in-court idеntification with additional voices offered for comparison. An in-court identification for a blind person may be conducted without any other voices, just as if the victim wаs sighted and the proper foundation laid. By analogy we look to previous holdings which state that an identification based upon a complaining witness’ independent recollection has an origin independent of any lineups held. See State v. Franklin, 185 Neb. 62, 173 N.W.2d 393 (1970). It was more to the defendants’ benefit that the other voices were offered for compаrison at trial when it was not necessary for the court to do so.
The defendants’ second assignment of error is that under
The relevant portion of
We note that the plain language of
Again, it may have been to the defendants’ advantage to use neutral phrases rather than requiring them to repeat certain words which the victim said were used by the persons who assaulted her. This action on the part of the trial court avoided the effect of requiring the defendants to partially rеenact the scene.
Finding no error, we affirm.
Affirmed.
McCown, J., participating on briefs. Caporale, J.,concurring.
I concur with the result in these cases but must ex *840 press my perturbation at the trial judge’s active participation in the prosecutorial function. It was the county judge, not the prosecuting attorney, who selected the persons to speak and who conducted the examination for purposes of enabling the victim to identify the defendants. Although the reсord does not support a finding that defendants were prejudiced by that action in this instance, we must bear in mind that justice is better served when judges remember they are adjudicators, not litigators. The proper administration of the law demands not only that judges refrain from actual bias but also that they avoid all appearance of unfairness or impropriety. See Franks v. Franks, 181 Neb. 710, 150 N.W.2d 252 (1967). A judge should never assume the role of prosecutor or advocate; his position is one of neutrality and he should never cross boundaries.