220 N.W.2d 562 | Neb. | 1974
Lead Opinion
This case reaches us a second time on reargument after we granted a motion for rehearing. Our first opinion in this case is reported in State v. Sanchell, 191 Neb. 505, 216 N. W. 2d 504. In that opinion we reversed
The facts of this case may be found in our previous opinion, State v. Sanehell, swpra. The sole issue presented before us on reargument is whether the witness Patricia in making an in-court identification of the defendant did so as a result of a taint; and if so, was there an independent basis for the identification?
As the State concedes in its brief the showup of February 8, 1972, was “unnecessary” and possibly “impermissible.” However, the admission of evidence of a tainted showup does not without more violate due process. Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401; Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199. The entire purpose of excluding such evidence made as a result of a tainted identification procedure is to avoid “* * * a substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247. Each case must be determined on its particular facts. In order to find a due process violation, the court must determine if the independent basis of the identification when viewed “in the totality of the circumstances” defeats a “substantial likelihood of irreparable misidentification.” We find no error in the District Court’s decision of admissibility at the suppression hearing.
We stated in State v. Cannon, 185 Neb. 149, 174 N. W. 2d 181, citing United States v. Broadhead, 413 F. 2d 1351 (7th Cir., 1969): “* * * the court held that
In the instant case, witness Patricia did not make an identification at the showup on February 8, 1972, nor did she do so immediately afterwards. She did not make an identification at the showup even though Patricia knew that she and several other girls were in court “* * * to identify somebody.” Witness Patricia identified the defendant for the first time on January 24, 1973, at the suppression hearing. She identified the defendant based partly on his profile and hands that she saw clearly for the first time after the robbery at the preliminary hearing on March 1 and March 2, 1972. More importantly, however, she heard him speak for the first time at the preliminary hearing. She stated
Thus, the three factors that Patricia used to identify the defendant were not affected as a result of the tainted showup. Furthermore, the basis of the identification, even if the taint had some effect on Patricia, was totally independent of the taint. The voice identification had absolutely no connection with the visual showup of February 8, 1972.
In all the identification cases, an indentification has been made directly as a result of a “impermissibly suggestive,” “tainted,” or “illegal” identification procedure. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (post-indictment line-up without counsel); Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (post-indictment lineup without counsel); Stovall v. Denno, supra (showup without counsel); Simmons v. United States, supra (pre-indictment photographic array); Neil v. Biggers, supra (a station house showup without counsel). That is not the case in the present situation. The identification was made over a period of time as a result of memory and recollection. The showup occurred prior to the filing of the information.
It must be said that some, if not all, of the difficulty in our determination of admissibility arose from a detailed, searching, and very able cross-examination of Patricia. A close reading of this cross-examination
Since there was an independent basis, was the means of identification sufficient to support a conviction? We have held that a voice identification, without more, is enough to support a conviction. Froding v. State, 125 Neb. 322, 250 N. W. 91; Small v. State, 165 Neb. 381, 85 N. W. 2d 712. In the present case, not only is there a voice identification, but such is also accompanied by the profile and hand characteristics of the defendant. Where the defendant is identified by a witness with the above physical features, the probative value of such is solely a question for the jury. Froding v. State, supra.
We adhere to our former opinion and decision except for that portion holding the testimony of Patricia inadmissible. On reargument we hold it admissible and affirm the judgment and sentence of the District Court.
Affirmed.
Dissenting Opinion
McCown, J., joining.
I dissent for the reasons stated in the original opinion of this court found in State v. Sanchell, 191 Neb. 505, 216 N. W. 2d 504, b,ut I desire to amplify the matters there set forth even though at the risk of some repetition. For a complete statement of the case and of the applicable rule of law, which the present opinion does not disavow, see the original opinion.
That rule, which this court now in practice rejects, is not a technical exclusionary rule such as that in
The proof here depends solely upon eyewitness identification where the opportunities for observation were difficult and severely limited, and where there was'no circumstantial evidence whatever supporting a finding of guilt. In putting the matter in proper perspective, the following observations, in a text written by an experienced trial judge, are pertinent. “Trials are held many months after the initial pretrial corporeal or photographic confrontation. When the victim (or other identifying witness) takes the stand and, pointing to the defendant seated conspicuously at the counsel table, says ‘that’s the man!’ he rarely is saying ‘that’s- the man who robbed me several months ago.’ In truth, most often he is saying: (1) that’s the man whose photo I identified shortly after the crime; (2) whom later I identified at a lineup; (3) whom láter I identified at the preliminary examination; (4) whom later I identified by ‘mug shot’ before' the grand jury; (5) whom later I saw in the courtroom during several adjournments1 of the trial.
“If the initial identification, whether corporeal or photo, was accurate, then the right man is on trial.
. “If the initial identification was, however, mistaken or uncertain, then an innocent man is on trial. The initial mistake will inevitably be cárried through all future identifications. Rarely if ever will the witness who was- positive at "the initial identification, or who
“There are indicia of- ‘danger’ which unhappily only the truly experienced trial judge will recognize. .
. “The prime concern must necessarily be with the ‘pure’ identification cases, those in which there is no evidence other than eye-witness identification to establish guilt.” Eye-witness Identification, Legal and Practical Problems, Sobel, § 3.01, pp. 10, 11. The above are express truths which almost every person knows from his own experience in harmless but perhaps embarrassing encounters where one has been the subject of or has made a mistaken identification.
■■ The present opinion does not abrogate the rule of law followed in the original opinion in this case, but purports to find that Patricia’s positive identification has a source “independent” of the tainted one man showup in that it is based upon her observations at the time of the crime. We therefore direct our attention to this assertion even though it requires repetition of matters covered in the original opinion.
The court now asserts that the identification by Patricia is independent of the illegal and tainted show-up becaúse: (1) She saw the actor’s profile at the time of crime; (2) she recognized his hands; and (3) she recognized his voice.
The precise question asked of Patricia demonstrates that her identification was not based upon her observations at the time of the event. On point (1), we now quote from the original opinion and portion of the record included in the quotation: “Patricia testified on direct examination at the suppression hearing that she did not know why she'was there on February 8. She made no identification of the . defendant as the perpetrator immediately thereafter. The night before the suppres
Note, she did not identify the defendant as the man at the preliminary hearing, yet her trial identification was based upon her observations at that time. Her observations at the time of the crime were limited to 3 seconds in a dark room. She saw a black face 2 to 6 inches from hers, necessarily out of focus. For 1 year and 1 day she could not make her identification. She could not give a description to the police sufficient to make a composite drawing. This was done wholly from Renee’s description. She could not identify de
On point (2), the record clearly demonstrates on pages 200 to 215 of the bill of exceptions that never at any time had Patricia claimed that she “saw” the thief’s hands. ' The testimony found on those pages of the record referred to conclusively demonstrate that she did not. She acknowledged that at the preliminary hearing she had testified (referring to the thief’s hands): “I had just concluded that they would be long and lanky.” Yet this supposed identification of hands is a key factor in the court’s determination that the basis of identification was independent of suggestion.
On point (3), the identification by voice, at no time during the 1 year that elapsed between the crime and the suppression hearing did Patricia make any assertion that she could recognize the perpetrator’s voice. The night before the suppression hearing she agreed to make a positive identification without ever having heard the defendant speak in the interim, neither at the showup, nor at the preliminary hearing. If she made any such claim, would not a lineup designed for the sole purpose of voice identification have been appropriate?
It seems clear beyond question that the identification made by Patricia was not based upon her observations at the time of the event. The finding of independent source by the trial judge cannot be sustained on the record and neither can the present opinion of this court.
The text writer earlier quoted summarizes as follows: “An in-court identification has an independent source
The present opinion states: “A close reading of this cross-examination reveals that this young witness became uncertain and perhaps confused at certain times in responding to the precise questions propounded to her. This, of course, is a rather typical picture of an able and experienced defense counsel examining a young and inexperienced lay witness.” This statement’ can, in the light of the record, be correctly, but uncharitably, characterized as inaccurate. There was no unfair advantage taken at all. She was simply confronted with her prior contradictory statements and failure to identify. These she reluctantly and evasively acknowledged.
It cannot be said that the admission of Patricia’s identification is harmless érrór, because the identification by Renee (the only evidence sufficient to support a conviction) is shaky and subject to grave doubt. We illustrate the point by the following from the record. Officer Jacobson, in his report (he gave essentially the same testimony in his cross-examination), states: “She [referring to Renee] had of course told me in the polygraph examination that she could not identify him.” At that time she also told him “none of the girls could identify him.” Renee- said “perhaps she could recognize [his] voice.” ' In one of' the officer’s comments
This seems to be a case in which a great many minds have changed from time to time. (1) The polygraph operator, for reasons extrinsic to the crime here involved, backed away from his original statement to defense counsel that the defendant had passed the polygraph test. (2) The prosecutors, who were so doubtful after the preliminary hearing that they had the right man that they agreed to dismiss if the defendant did pass the polygraph examination, later backed away from that agreement. (3) Patricia, 1 year and 1 day after the event, changed her mind and decided that after all she could positively identify the thief. (4) Two judges of this court have changed their minds on the question of whether the record establishes an independent source for Patricia’s identification of the defendant.
One wonders about this uncommon coincidence of events. This is an age of much lawlessness and that is of great concern to all, especially to the victims, the courts, and those engaged in law enforcement. We must not, however, allow our reactions to this scourge to affect our judgment to the extent that in the methods we use and the,principles we apply we lose sight of the ultimate question of innocence or guilt. It does not do. to convict just anyone. It does not do to follow methods and principles which may as readily convict the innocent as the guilty.
The defendant may be guilty; he may be innocent.