Aftеr a jury trial, the defendant-appellant, Ernest Duane Grierson, was convicted of forcibly raping two women in Boise; the two separate incidents upon which the conviction was based occurred on the nights of October 14 and November 25, 1968.
In this appeal, the appellant asserts that he had a constitutional right to counsеl at a pre-information lineup; he also challenges the validity of a voice demonstration which took place at that lineup. In addition, the appellant submits that the record contains no competent evidence proving beyond a reasonable doubt that he was at the scene of either crime.
*157 On December 19, 1968, the Idaho Falls Police Department asked the appellant’s employer to have the appellant contact the Department, which he did; arrangements were then made for the appellant to appear at the police station that afternoon. Upon his arrival, the appellаnt was told that the police were investigating assaults and rapes in the Boise area and a murder in Idaho Falls. The investigating officers asked the appellant to read a form which contained the following provisions:
“YOUR RIGHTS:
Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against yоu in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed to you, if you wish, if and when you go to cоurt. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.
“WAIVER:
I have read the statement of my right shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.” Emphasis added.
The appellant then subscribed his signature to this waiver document.
After the execution of this waiver, the police told the appellant that they would like him to participate in a lineup. At this timе, the appellant was a “suspect,” but he had not been arrested or formally charged. The police told the appellant that he was entitled to have an attorney present at the lineup if he so desired, and the appellant then subscribed another waiver document:
“I Duane Grierson this date 12-19-68 do hereby agree to stand in a lineup at the request of the Idaho Falls Police Department.
“I have been advised of my rights. I am aware that I need not do this without the presence of my attorney, unless I agree.
“At this time, I waive this right.”
The two prosecuting witnesses were waiting together behind a one-way-glass device when the appellant and four other men were linеd up before them. One of the victims recognized the appellant as her assailant almost immediately, became visibly upset, and began crying. Each of the individuals in the lineup was then asked to repeat in a forceful manner various expressions purportedly uttered by the rapist at the time of the attacks. Only after hearing thе appellant’s voice was the second prosecuting witness able to positively identify him as the man who had attacked her. The appellant was then placed under arrest and transported to Boise, where a complaint was filed charging him with two counts of rape.
Relying upon the Sixth and Fourteenth Amendments, the apрellant contends that he was deprived of a constitutional right to the assistance of counsel at a pre-information lineup. The answer to the appellant’s contention is contained in Kirby v. Illinois,
The appellant next contends that his Fifth and Fourteenth Amendment privilege against compulsory self-incrimination was violated because he was forced to repeat certain words purportedly uttered by the rapist. This contention is without merit. United States v. Wade,
“[Compelling Wade to speak within heаring distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. * * * [T]he Fifth Amendment privilege against self-incrimination * * * ‘offers no protection against comрulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, »to assume a. stance, to walk, or to make a particular gesture.’ * * * None of these activities becomes testimonial within the scope of the privilege because re *159 quired of the accused in a pretrial lineup.”388 U.S. at 222-223 ,87 S.Ct. at 1930 .
Moreover, we note that in this case the police adhered to the more desirable procedure of having the identifying witness listen to the voices of several other persons in addition to that of the suspect.
See
Crume v. Beto,
The appellant also contends that he was prejudiced because the prоsecuting witnesses were allowed to view the lineup in each other’s presence. Pointing out that he was not identified by one of the victims until after she had seen the other identify him, the appellant suggests that this second identification may have been unduly influenced by the first. Law enforcement officers should avoid the practice оf having witnesses view a lineup and make identifications in the presence of one another. Thompson v. State,
The appellant’s final contention is that there is no competent evidence to prove beyond a reasonable doubt that he was at the scene of either of the rape incidents upon which his conviction is based. We note initially that the testimony of the victims places the appellant at the scene of both crimes; hence, it is not true that there is no competent evidence to prove his presence at the attacks. Relying upon alibi defenses, however, the appellant apparently suggests that in spite of the eye-witness testimony of the prosecuting witnesses, the evidence in support of his alibis was sufficient to require a directed verdict of acquittal.
When the first rape occurred at about 9:30 p. m. on October 14, the appellant was employed at the AVI-Simplot plant in Nampa; his time card for the week ending October 19 shows that on October 14, he checked in at 5 :15 p. m. and checked out at 4:15 a. m. the next morning. The appellant’s foreman testified that the appellant could not have been gone from work without his knowledge for substantially longer than the thirty-minute period allowed for lunch. But the foreman also testified that on one occasion he had permitted the appellant to leave the premises whеn the appellant said that his wife was in the hospital; and on another occasion, the appellant was gone for an hour or an hour and a half because he needed some medication. In addition, one of the appellant’s coemployees testified that the appellant was sometimes gone for an hour or an hour and a half. In State v. Ross,
“Appellant asserts that his alibi, i. e., that he was at work at the time of the alleged offenses, was not properly considered. The jury heard the testimony that appellant did ‘punch in’ and ‘punch out’ at work at the normal times on the days in question, that he was not missed at work and that he always ate lunch with a friend. However, the alibi was not conclusive as to the appellant’s whereabouts at the times and on the dates in question, and indeed appellant does not so contend. In such an instance the alibi is merely evidenсe to be weighed together with other evidence by the jury in arriving at its verdict.” Id. at 717,449 P.2d at 377 (emphasis added).
At trial, the appellant asserted that he was in Idaho Falls when the second rape incident occurred in Boise, shortly after nine p. m. He notes that the state’s own witnesses placed him in Idaho Falls at least until it was “just dark;” and that these same witnesses testified that at six a. m. the next morning, they found him asleep in their living room in Idaho Falls. In order to prove an alibi defense, the accused must show that at the time the crime was committed, he was at a place different from that where the offense occurred; it is not sufficient merely to show that it was improbable that he was at the scene of the crime when it was committed. State v. Davis,
Judgment of conviction affirmed.
Notes
. The appellant argues that his consent to participate in the lineup wаs vitiated because the rights warning given him stated that: “We have no way of giving you a lawyer, but one will be appointed to you, if you wish, if and when you go to court.” Although we do not adjudicate the question raised, we note that it appears to be a close one. The United States Court of Appeals for the Seventh Circuit has recently сondemned the use of such a provision in a Miranda Warning:
“We hold that the warning given here was not an ‘effective and express explanation ; ’ to the contrary, it was equivocal and ambiguous. In one breath appellant was informed that he had the right to appointed counsel during questioning. In the next breath, he was told that counsеl could not be provided until later. In other words, the statement that no lawyer can be provided at the moment and can only be obtained if and when the accused reaches court substantially restricts the absolute right to counsel previously stated; it conveys the contradictory, alternative message that an indigent is first entitled to counsel upon an appearance in court at some unknown, future time. The entire warning is therefore, at best, misleading and confusing and, at worst, constitutes a subtle temptation to the unsophisticated, indigent accused to forego the right to counsel at this critical moment.
The practice of police interrogation of an accused, after informing him that counsel cannot be provided at the present time, is a practice anticipated and expressly prohibited by the Miranda decision.”
Williams v. Twomey, 11 CrL 2501 (7th Cir. 8/18/72) ;
accord,
United States v. Cassell,