*1 clerk of money a sum deposit required at- the defendant’s order, to this Pursuant the court. on January $42,130 torney deposited confirma- time of at the entered order distribution entitled found 17, 1972, plaintiff on August tion here remedy seem the proper It would $29,188.28. to redeem. mortgagor require be to permit would Joseph appellee, Sanchell, Nebraska, State appellant. W. 2d 504 N.
Filed March 1974. No. 39042. *2 Joseph Campbell, E. J. McQuillan, Paul Bill Watts, George Sornberger, appel- Moran, Gerald E. and R. for ant. Meyer, Attorney
Clarence A. H. General, Chaun- and cey appellee. Sheldon, C. for J., Spencer, Smith,
Heard before White, C. Boslaugh, McCown, Newton, JJ. Clinton, and J.
Clinton, charged rape Defendant was on one count of forcible and robbery, three counts of guilty and was found jury. during morning early The offenses occurred January 22, 1972, hours of a women’s residence hall campus University on Nebraska. The vic- tims were three female students who in the resided depended solely upon hall. The convictions identifica- tion of the defendant victims. There was no circumstantial or other evidence to connect the defend- ant with the offenses. significance ap-
Previous to trial two issues of on this peal were raised. The defendant moved to dismiss through acting prose- information the State, because cuting agreement attorney, had violated an charges defendant dismiss the if defendant sub- “passed” polygraphic mitted examination. The court denied the motion. moved to The defendant also suppress the identification of the witnesses
507 alleged product they of consti- it was because tutionally pretrial were so tainted identifications give suggestive unnecessarily impermissibly toas irreparable misidentifi- rise to substantial likelihod v. Cali- the mandates of Gilbert in violation of cation 1951, 1178; 18 Ed. 2d 263, 388 87 L. fornia, U. S. S. Ct. 1926, 218, Ct. 18 Wade, v. 388 U. United States S. S. 293, S. 1149; L. 2d U. S. Stovall Denno, Ed. v. California, 394 Foster 1967, 18 L. Ed. 2d 1199; Ct. 402; 22 L. Ed. and thus 89 Ct. U. S. S. 2d process of trial. his defendant was denied due law suppression hearing on the A was held motion any making fact motion trial court denied the findings. without assigned: (1) following appeal On this errors are suppressed have because should identifications been aat one denied of counsel defendant was assistance (2) man show- 8, 1972. One man ups *3 February violated 2, 1972, 1 and 8 March (3) principles process The identifications of law. due independent origin at trial had made the witnesses no of the tainted and therefore should have identifications suppressed. (4) granted been the The court should have motion the to dismiss because breached State its agreement poly- passed if to dismiss the the defendant (5) graphic examination. The erroneous admission had taken a innuendo of the fact that the defendant (6) polygraphic evidence was insuf- examination. The the ficient sustain verdict. assignments may
Three of sum- the be dealt with marily. showup prior 8, 1972,
The occurred complaint any the time in the been had filed matter Kirby against 682, 406 U. S. the defendant. Illinois, the Ed. 2d makes that 411, 92 S. it clear Ct. L. right to not attach until after counsel does at or proceedings adversary and that these time commence begin charge. with in case formal that court specifically held entitled to accused was not counsel police aat station- occurred which before formally charged. assign- had been defendant The first ment therefore is merit. without assignment
The fifth is likewise No unmeritorious. reasonable inference can be drawn from the trial record jury lead the to conclude the defendant polygraph rape a taken test. The record shows the purpose determining victim took such for the test truth her claim that an com- offense had been mitted. The same officer who administered that testify test later as was called a rebuttal con- witness to cerning a conversation had with There the defendant. nothing testimony by any in this to indicate rea- sonable intendment ato the any related conversation was
polygraph In test. was no there ob- event, jection to testimony no motion for mistrial. assignment depend upon
The merits of the sixth testimony whether the identification must be stricken entirety. its Since we conclude that some but testimony jury question all this is admissible, on the credibility accuracy of the presented. assignment The sixth is not well taken. preliminary hearing agreed,
After the it was in let- May May ters dated ,1972,between defend- lawyer county attorney’s ant’s and member charged prosecuting staff case, de- if the passed polygraph charges fendant test would be prosecutor only dismissed. The stated: “The reserva- tion I that would have is the event the De- Lie charges tector Tests inconclusive, would be *4 not would be dismissed.” In no results event were the proceeded to be used if the case trial. The tests were to administered June Lin- a member of the on - police department qualified polygraph coln who awas following Immediately examiner. the the examination his client told the defense counsel examiner report passed However, tests. when the written prosecutor, “His reactions he was made to the stated: been involved on a had never normal individual who type man, innocent in this offense would indicate subject polygraph this however, the reaction on the on activity, experience indicate other his in thefts and with guilty party.” my opinion is the me, that he to that in hearing At the on the motion dismiss because agreement, testified: examiner violation of you reaching on “Q. in after said Sir, conclusion you person pass, a normal he used extraneous would conclu- matters included draw the test to telling I told sion he A. Yes. wasn’t the truth? ... passed thought honestly it; Mr. here I he had Watts Q. I but I ... will restate should not have said that. excluding matter, he it. The test the extraneous itself, passed? A. Yes.” examiner
The matters considered extraneous hearsay largely information based on were conclusions experience in thefts [the defendant’s] about “his activity.” other It is the defendant our conclusion that agreement. meaning passed the test within the certainly contemplated extraneous no considerations subjective judgment involving the tests defendant’s unrelated the examiner matters to the on charged. guilt crimes innocence agreement question The Is is: enforcible? State, 228 S. 2d relies Butler v. defendant cites and 421, 1969); App., (Fla. 36 A. L. 3d 1274 State R. 1966). (Fla. App., Jn cases these Davis, 188 S. 2d agreements de- honor the. held the court a refusal process prived of law and of due the defendants charges dis- and the ordered convictions reversed agreements somewhat cases were those missed. The present Davis instance. than in the In different degree charged mur- first defendant was case the *5 agreed passed der. if defendant charge dropped test the would be if he failed plead guilty manslaughter. he would to If test were neither inconclusive, side was bound. In Butler charge rape. agreement The was that if de- passed charges fendant the test the would be dismissed. If he did results not the could be admitted in evidence against agreements him. In both cases the had been approved by the trial court. anything discourage
We do want not to do the use polygraph it as ais useful tool in prosecutorial many work and no doubt results in deter- prosecute. judgment minations not to It is our agreement, present such requires an instance, approval binding. court 29-1606, be Section R. R. S. provides preliminary that after examination the county required attorney is file an information and if he determines he should not do so he must seek court permission justify permission his action. If is de- bring nied he must then file the information and matter to trial. The reasonable construction this requires approval statute is it of the court to dismiss an information once it has been filed. In this case the approval. agreement court binding denied approval. without court assignments
The second and third related and are together. will be dealt with The determination of those assignments requires summary portions of certain the evidence, insofar as it relates to the identifications allegedly suggestive showup tainted and to the question related of whether not the evidence dis- closes that the in-court identifications have sources inde- pendent summary of the taint. This is also relevant question any to the we will determine later whether beyond error is harmless a reasonable doubt. We will applicable first, legal however, principles. state the supra, In United States Wade, v. the United States in-court identification Supreme that an held Court post in a exhibited accused was to whom witness ex- must be lineup of counsel in the absence indictment such identifi- established that could be cluded unless independent origin the tainted evidence had cation In harmless. lineup admission was error in its or that pre- supra, question was the same California, Gilbert present. *6 factor an additional sented as Wade but apparently as sub- admitted, had the trial court There identifying testimony by identity, the proof of stantive lineup pretrial tainted had a the witness witness con- this held that The court the identified defendant. concerning (1) required the error stitutional (2) in- the lineup excluded, and identification be the regard the excluded, without court be identification question identification the in-court of whether supra, estab- independent Denno, v. Stovall source. as issues process for identification lished a test” “due unnecessarily so . . . was If the “confrontation follows: irreparable identi- suggestive mistaken and conducive to process due “denied defendant has been fication” the process of due violation However, . a claimed of law. . . depends on the conduct confrontation of law in the of surrounding it.” totality of circumstances the principles applications the United the The latest supra, Supreme California, v. Foster Court are in States and Neil v. Biggers, 375, 34 L. 188, 93 Ct. 409 U. S. S. supra, Biggers, sum- 401. In court Ed. 2d Neil v. principles in applicable development marized way: four oc- following on have considered “We against protection scope process of due casions suggestive deriving identifi- from admission of evidence 388 U. procedures. Denno, S. In Stovall cation claim (1967), that the defendant Court held unneces- . . was so confrontation conducted . that ‘the irreparable mistaken sarily suggestive conducive to process law.’ due denied that he was identification Id., at 301-302. This, held, we ‘on must be determined totality of the circumstances.’ We on went to find process the facts of the case then us, before due emphasizing was not violated, the critical condi- injured justified tion of the witness her hospital room. At trial, whose view witness, suspect at the brief, time crime testified the out-of-court identification several did present hospital officers in her room, and also made an in-court identification.
“Subsequently, in a case where the witness made in- arguably stemming previous court identifications from exposure suggestive photographic array, ato Court governing restated the test: ‘“ [W] e hold that each case must be considered on its eye-witness facts,
own and that convictions based on following pretrial identification identi- by photograph fication will be aside set on that ground only photographic if pro- impermissibly suggestive give cedure was so as to very irreparable rise ato substantial likelihood misidentification.’ Simmons v. States, United *7 (1968). U. S.
“Again procedure we found the identification to be supportable. . . . only
“The case to date which this has found Court procedures process to be violative of due is Foster (1969). v. California, 394 U. S. There, the witness failed to Foster the first time he despite suggestive lineup. him, police confronted a arranged showup, a then at which the witness only make a Ultimately, yet tentative identification. lineup, another confrontation, this time the witness was able to muster a identification. held definite We all of the observing identifications inadmissible, that the identifications were ‘all but inevitable’ under the Id., circumstances. at 443. . . . emerge general guidelines cases from these
“Some suggestiveness relationship mis- between pri- apparent all, of that is, first identification. very mary ‘a substantial likelihood be is evil to avoided irreparable v. United of misidentification.’ Simmons phrase coined States, S., 390 U. While the determining iden- an in-court for whether as a standard sugges- admissible in the wake of tification be would of identification, with the deletion out-of-court tive ‘irreparable’ equally as a standard for it serves well concerning admissibility the out-of-court of likelihood misidentifica- identification itself. It is the right process, to due tion a defendant’s which violates of the exclusion was the basis it is this which Suggestive are dis- confrontations evidence in Foster. approved, they of mis- the likelihood increase because unnecessarily suggestive are identification, ones reason the chance further for condemned gratuitous. But makes is as Stovall misidentification without clear, admission evidence process. due more does not violate whether, as in is less from our cases is “What clear unnecessary suggestive Court, timated the District requires evidence. While alone exclusion of ness agree inclined courts we are below seeking persons possibility all did exhaust physically comparable respondent, not think we do . . . excluded. evidence must therefore be present place case, a rule have no in the Such would preceded and the Sto since the confrontation both gave supra, notice Denno, when we first vall any procedures suggestiveness of confrontation jury. argued thing to the other than a matter to be question, under turn, then, whether to the central “We ‘totality the identification circumstances’ procedure though confrontation even reliable *8 by to suggestive. the factors cases, be As indicated our evaluating considered in the of misidentifica- likelihood opportunity tion include the of the witness the to view degree at the crime, criminal time of the the witness’ accuracy prior descrip- attention, of the of the witness’ certainty tion by criminal, of the the level of demonstrated length the witness the confrontation, and the of time Apply- between crime the and the confrontation. ing disagree factors, these we with the District Court’s (cid:127) (Emphasis supplied.) conclusion.” appears Biggers, to supra, us in Neil v. implicitly, although expressly, court has overruled per exclusionary se rule of California, v. Gilbert supra, prosecution under which, if the its case direct by bolsters an in-court evidence of pretrial identification at a confrontation violative of due process standards, a reversal of the cause and exclusion mandatory. of the identification evidence is This seems Biggers, supra, true because Neil v. evidence con- part testimony concerning sisted in visual victim’s suggestive showup. voice identification at a Our is conclusion reinforced fact Foster supra, rely upon per California, the court did not exclusionary though se even rule came cause to by way it for direct review than rather of a habeas corpus proceeding. surrounding
We now summarize evidence We will refer the identi- fying witnesses their first names. Renee was the rape robbery. victim of and a crimes These took place occupied the time 5:30 6:15 a.m. between robbery place Patricia awas victim and crime took robbery. 6:30 a.m. about the victim a Ann was time of this offense is not fixed with reference hours clock, but circumstances indicate it occurred during span. about the The coincidence same time general description per- time, used, methods petrator by prove all witnesses would tend *9 by person. were committed one the offenses Complaint promptly made the matter and was was police police investigated by campus and Lincoln department. of Renee As a an result interview with “drawing,” composite a front of the attacker’s view, line by face made with the aid of an was one officers transparent overlays of identikit. kit consisted of This portions outline over of facial and features. Laid one drawing. they complete photograph the other make a A preserved of taken it in the the result is record. wide-nosed, clean-shaven, a broad-faced, rather shows Negroid features, a cut, male with medium Afro sideburns, apparent is it used moderate could be particular only not to but to note a individual possibility Shortly- identity. a resemblance a of pictures the incident after Renee of was shown football players apparently game program. from This was done because she stated the attacker a red wore jersey athletic white with the 41 on numeral it. picked couple She made no identification, but out pictures of individuals resembled who the attacker. mug Some time later she was shown shots black photo A among males. of the defendant these. picked picture She out three. Later the com- posite was seen an officer of the Lincoln de- partment. resembling He stated that a black the draw- ing jail been had time some earlier. This was the Mug defendant. shots of the defendant then were picture shown to Renee. She added this to the list bearing those a resemblance. Whether or not the de- picture fendant’s separately was shown to her or to- gether pictures previously with the same shown is not clear from the record. viewing
The other victims photographs the same picked pictures bearing out two a resemblance. Neither picked picture. Only picture defendant’s one did girls Renee and the other two choose in common. All January 22, day or so of occurred this within ar- to be the defendant On charge, presumably the one raigned unrelated an custody three The earlier. he been had for which an girl seen who other students and two victims time were same hall about residence intruder in county campus police to the officer of taken arraignment place. to take courtroom where proceedings. during together sat The witnesses understanding their victims as of the three they is in taken there purpose for *10 sup- contradictory. significant respects theAt some hearing on direct examination: pression Renee testified to come in and sit down told we were “We were happened just then later some- observe what question On going us what we saw.” to about one was prodding, acknowl- she after some cross-examination hearing edged preliminary testified had at the that she February brought on 8 for that she had been to court purpose identifying person attacked the “the who they you.” testified that Renee told her Patricia identify showup there to After the on man. some February 8 Renee made an identification of the defend- pre- ant attacker as her and then identified him at the liminary hearing. sup- the On at cross-examination pression hearing she “I stated: was told some time they person thought they raped had had me, saying but I am not on what I occasion was told this, pre- I because don’t I remember when told.” was Her viously mentioned admission to her as at the preliminary hearing suggestion shows the made be- February fore her identification on 8. The statement police, clearly suggestive the whenever made, was any the since no had evidence at time other than the witness’ identification and no identification had February been made until after the on 8. If suggestion previous the February was made to 8, it later then made If it was course unfounded. of her own on the basis had to be made reinforce it. only intended have been sup- at the on direct examination testified Patricia why she hearing not pression know that she did no identification made She on there immediately perpetrator thereafter. defendant as hearing January suppression night on before the day year first ad- crime, she after 24, 1973, positive prosecutor make a that she would vised hearing suppression testi- she At identification. night that him last “I told fied cross-examination: today.” going On exami- him direct I was following leading ques- nation she answered . . from “Now, . the observa- the affirmative: tion in your particular you room this made in tion which you in and observations made individual preliminary hearing County in this Courtroom speak hearing here in and from the defendant matter you opinion today have an do as courthouse your person room on whether morning early January is here 22nd, today?” identified the courtroom then defendant She she the man. On cross-examination admitted that hearing preliminary at the she testified that he “fits *11 description.” the that she She testified had never heard hearing. suppression the his until the voice night suppression hearing the that she decided before testify positively the she that defendant was would hearing preliminary that at robber. She admitted identify could not him because she not she seen his features time the crime. She also whole at acknowledged told officer she she had identify person [her]”. not “could that robbed prosecutor suppression stated to the court hearing that he no other knew than Renee witness identify positively the defend-
and Patricia who would responsible. party as the ant police department was of the Lincoln Jacobson
Officer him that she that Renee told testified called. He perhaps identify positively she she said . . . “couldn’t recognize she voice but wasn’t the voice he had He admitted that writ- certain the face.” about reports, apparently after the defendant was in his ten under identify definitely suspicion, him not “could she being party responsible.” told she Also: “. . . as definitely identify the you not man that she could attempted testimony Yes.” This assaulted her? A. “ explained as ‘So to be on cross-examination follows: identify telling you that she could not when she was simply person mean assaulted her did who had On A. Yes.” that she did know who was?’ quoted testimony. he redirect reiterated his earlier campus security testi- Officer force Edmunds relative to Renee that if she fied as follows: She “said thought . . could see him that she could . she him.” especially
We turn with now to the opportunity reference for observation both the Supreme United Court and court have em- States this phasized importance of this item in determina- question tion of the in-court whether the identifica- independent tion source has a of the tainted identification. placed Renee was awakened a hand over her mouth. very large, very She saw black face to her close face. you.” you heard a She threat: “If look at I kill me will away, looking She then looked but was unable to resist eyes person. back and turned her toward the The same repeated. eyes threat was She then covered her her hands because she was so scared she could not close eyes. lights her She then blindfolded, were rape on, the turned door locked, two acts of accomplished through threats of death. While acts *12 occurring peering the blind- she, were from underneath caught glimpses parts fold, of the attacker’s features. way It in this the at- was that either or after before jersey tacks the athletic she observed and the numeral thereon. Her earlier brief defendant’s views of unlighted facial features were made room with drapes early morning drawn, but she stated: “. . . was light coming Following in the windows.” attack perpetrator lengthy carried on a rather conversation Renee. She testified there when asked whether any question was in her mind about the of her attacker: “None At whatsoever.” testified she pre- identification on 8, 1972, at the liminary hearing. jumped Patricia was awakened when someone — big, “lurched” on her. “It a black man, black — just
and I I stared at him for about three seconds ”— eyes and then she closed her because of his threats. eyes She was blindfolded. The blindfold covered her and she did not see him At thereafter. trial she made positive identification of the defendant as the robber. transpired event she described before 6:30 a.m. She stated she was able to see because it real “just starting dark. get light. I The sun just think beginning to rise. There was some sun- light. floodlights And there are from the dormitories .. ..” She prior admitted on cross-examination a in- consistent light. statement about artificial She also preliminary admitted that at the hearing she had testi- “ ” “ you fied: say ‘Do it’s him?’ Answer: T can’t say it’s him because I didn’t see his features, whole ” but it fits what I saw.’ She further admitted that preliminary at the hearing on March and 2 she had not identified the defendant as the man. She included part defendant’s voice as of her identification, but already agreed noted, she had positive to make a identification before she had ever heard the voice. three victims
Two other than the witnesses *13 he “Well, Mary him. Ann could not called. very very [he was] dark . to it . . me, close but was big She stated . . his hand . . was dark-skinned.” . . appeared about the size. that the defendant to same be 6:30 her 6 and occurred between events in room standing a man a.m. Sharon testified: “. there was . . doorway over in the He black . .... man . . distinguish could not foot, six like . . . three.” six She his him facial features. She observed for about seconds. opportunity robbery
Ann, the third had an victim, image view a artificial mirror the intruder in full light although briefly. The robber had from forced her standing bed, her he her, behind and she was facing away from him. She had been instructed to keep eyes lights her closed. He turned the on. She his saw face in a mirror. She realized he her saw eyes open immediately she closed She them. estimated her observation took about 2 seconds. She general testified that defendant fit the size and description of the man who was in her room. She saw eyes “the outline face; of his and those fit.” She had suppression heard defendant’s voice at the — hearing for the first time. She stated: “It was a your Q. voice I had heard before. In room January 1972? A. 22nd, On Yes.” cross-examination questioned she concerning said when the identification of the defendant saying “I robber: am that I think it is?” She testimony admitted that her preliminary hearing say was: definitely “I can’t wheth- er it’s him not, or but it could be.”
In the brief of the defendant our attention has been called various inconsistencies, other than those which we have mentioned, between the of an iden- tifying witness preliminary and at hearing and between that on direct and cross-examination. How- questions reliability those ever, items at most raise credibility jury of observation and are for to decide. (cid:127) pointed It is also out that at Lincoln, Nebraska, on January sun does not a.m., rise until 7:43 central “early time, standard there have been no morning light” until 7 o’clock facts, about a.m. These may course, are scientific we take facts of which judicial notice as can the trial court. However, this again only questions reliability credibility. raises though For example, of Renee, the case even she was light mistaken as to the source whatever was, there appears enough it nonetheless she could see well give description composite sufficient re- to make sembling appeared the attacker. that the also attacker *14 enough could see her well even in the darkened room looking observing to note she him him gave warning. and thus her second This would indi- equally cate, course, of that she see him well.
Our conclusion is that evidence the identi- shows by independent Renee source the ar- fication of ranged showup February sufficiently .1972,- 8, and is on pertinent reliable so-that the strictures of rules are by satisfied. In connection with the “identification” appears testifyng posi- that she Ann, it was not in fact tively identity. pertaining as to The facts to her testi- mony jury. presents again only were all before It questions reliability credibility of these were clearly jury for the decide. to hand,
On the other we believe that the evidence we conclusively have forth set that the shows identification product showup Patricia was the of the tainted suggestive 8, 1972, and the circumstances preceded upon and followed it. It was not based her at the time crime. It must there- observations implicit fore be excluded. We find the determination - independent origin of the court that had an to clearly wrong. Therefore on retrial in accordance be supra, principles California, v. and Neil of Foster supra, Biggers, testimony v. identification course, This, not admitted. Patricia mil be does may testify not mean not fact she to the she permitted simply robbed, to she will not but be testify perpetrator. the defendant was the is evident we said that we have from what have of the trial been unable to conclude that refusal court suppress testimony Patricia was the identification beyond Chapman harmless error a reasonable doubt. 17 L. 2d California, 18, 824, 386 U. 87 S. Ed. S. Ct. L. R. 705, 24 A. 3d alleged
We now to the contention relative turn showup not a on March 1 and That was charges preliminary hearing on the at all. It was the by Renee. The filed after had been identified defendant hearing surrounding facts are not and circumstances except by cross-examina- shown isolated references in given pre- testimony witnesses tion present. hearing. liminary Wit- Counsel there segregated, have been. nesses, assume, we or could showups surrounding parte None the evils ex proceeding lineups can be to that for the attributed bene- fit of the defendant. and remanded new trial.
Reversed for Smith, J., not participating. J., dissenting.
Boslaugh, State in offered might satisfactory have this case as it been. *15 opportunity of victims to the offender observe by way com- was limited in the crimes were exclusionary strictly applied If the rules too mitted. are impossible prosecute cases, in such for becomes offenses committed such manner. January offense, 22, 1972, the time the wit-
At profile of Patricia the offender close ness saw the range Following hearing his heard voice. an- February identify other case on 8, 1972, she failed to preliminary hearing the defendant. At the on March description 2, 1972,she said defendant “fit the (exactly) of exact-y opportu- Iwhat had an saw.” She nity hearing to hear the defendant’s voice at prosecutor January advised the on 23, 1973, that she positive could make a identification. heard She again hearing January voice defendant’s at the on positive 1973, and made a largely profile
based and voice. by Her weakened the failure to hearing the defendant at the 8, 1972, prior subject some interpreta- statements which were tion. jury, my These matters all were before the and in opinion questions jury. to be decided I judgment would affirm the of the trial court. J., concurs in this dissent.
Spencer, Luigi State of Nebraska, appellee, Grayer, appellant.