State v. ThomasState v. Thomas
This is an appeal by defendants Ellis Davenport and Sam Thomas, who were convicted of the armed robbery of a Shreveport liquor store and sentenсed to 20 years imprisonment. At trial the state relied solely on the eyewitness identification of the store manager, while defendants presented an alibi defense. On appeal defendants principally
I.
Defendants were arrested by Bossier City authorities following the commission of an unrelated armed robbery. For reasons not revealed by the record, the Shreveport police apparently suspected that defendants may have been involved in the recent robbery of a liquor store, and they showed the store manager a group of similar photographs which included pictures of defendants. Without coaching or suggestion by the officers, the manager identified defendants as his assailants.
Shreveport police then arranged for a corporeal line-up. By the time that the Shreveport officers sought to secure defendants for the line-up, counsel had already been appointed to represent them on the unrelated charges. When the officers advised defendants that they were to be placed in a line-up, both requested the assistance of counsel. The police conducted the line-up without the presence of counsel for either defendant, and the manager identified both defendants from among a group of other males.
After defendants were formally charged by bill of information with armed robbery, they filed a pretrial motion to suppress the identification made at the photo spread and the physical line-up. At the hearing on the motion defendants’ evidence focused solely on the absence of counsel at the line-up.3 Both defendants testified that they advised the officers they objected to being required to participate in a line-up without the assistance of counsel. Neither testified that he requested the officers to notify his court-appointed attorney or that he requested and was denied an opportunity to communicate with his court-appointed attorney. The trial court denied the motion.
At the ensuing trial the manager testified as to his prior identification of defendants at the photo spread and at the line-up, and then he unequivocally identified defendants, seated in the courtroom, as the men who robbed him. Despite vigorous efforts by defense counsel to discredit the manager‘s identification, the jury found defendants guilty as charged.
In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Court limited the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), which had required the presence of сounsel (unless waived) at corporeal lineups,
This court has followed that rationale with regard to the Sixth Amendment rights of an accused and has determined that thе Louisiana constitutional right to counsel does not necessarily compel a different result.6 See State v. Smith, 357 So.2d 798 (La.1978); State v. Johnson, 327 So.2d 388 (La.1976).
Nevertheless, as we have indicated in prior cases such as State v. Stewart, above, the Kirby rationale may be unduly broad in Louisiana, at least in the face of a specific request.
However, although defendants both demanded the presence of counsel at the line-up, neither specifically requested notice of the line-up to his court appointed counsel. Further, there was no indication that the officers conducting the line-up were aware that defendants were represented by counsel, or, more particularly, that counsel had been appointed to represent them on the matter still under investigation (on which they had not yet been booked). Therefore, this case does not involve a bad faith effort to seclude defendants from counsel during the conduct of an identification procedure.
Even if defendants’ statutory right was violated, this court need not apply a per se exclusionary rule in this case, which does not involve a violation of defendants’ constitutional right to counsel.
Certainly, a timely request that the police notify (or permit an accused to notify) counsel of a forthcoming line-up ought always to be honored. Nevertheless, in the absence of a bad faith effort to circumvent defendants’ statutory right to counsel following arrest, and given the showing made in this case that the line-up was conducted according to fair and standard police procedure, the exclusion of reliable evidence is too great a price to impose solely because of the absence of counsel at the line-up.
Even if we were to treat the line-up identification evidence as improperly secured, thе in-court identification was here shown to have emanated from the manager‘s independent recollection of defendants’ appearance at the time of the offense and thus was not the product of a tainted line-up. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The manager testified that the store was well lighted and that he had an excellent opportunity to view both defendants fоr a significant period of time. He gave a reasonably accurate description to police immediately following the robbery and unhesitatingly identified both from a photo spread which was conducted on a fair and non-suggestive manner. Given this showing, the introduction of the line-up identification evidence merely corroborated the other two independently admissible identifications and can thus be viewed as harmless under
II.
In support of the alibi the defense presented the testimony of a female companion of the two defendants. The witness testified that both defendants were with her and another female named Vicki Miles at the time of the robbery. Defendant Ellis Davenport also testified in support of the joint alibi. Vicki Miles was not called, however, because, according to defense counsel, she did not have adequate recollection of the dates involved.
Defendants contend that the trial judge erred in instructing the jury as to the presumption that “evidence under the control of a party and not produced by him was not produced because it would not have aided him“.9 See
The passing reference to the above stated statutory presumption did not mislеadingly imply that the missing witness would present testimony prejudicial to defendants, but merely indicated that the testimony would not have aided the defense. Here, given the proper and complete instructions regarding the presumption of innocence and the state‘s burden of proof, the trial judge‘s comment merely alluded to a rather obvious conclusion, and reversal of the conviction is clearly unwarranted. Although it is generally better to let the jury draw such inferences without the aid of such an instruction, the jury in this case was fully informed as to the burden of proof and the presumption of innocence, and the instructions, considered as a whole, did not prejudice the defendants.10 See State v. Dupre, 369 So.2d 1303 (La.1979).
The defendants’ convictions and sentences are affirmed.
WATSON, J., concurs.
CALOGERO and DENNIS, JJ., and GUIDRY, J., ad hoc, concur and assign reasons.
CALOGERO, Justice, concurring.
Because the lineup identification occurred before the defendants were indicted by the grand jury, because there is dispute about whether a specific or general request was made for the presence of an attorney, because the lineup took place in a jurisdiction other than that in which the defendants were being held on the separate chаrge, and for the reasons set forth in State v. Vaughn, 378 So.2d 905 (La.1979), I find no merit to Assignment of Error Number One. Accordingly, I concur in affirmance of defendant‘s conviction and sentence.
E. L. GUIDRY, Justice ad hoc.
I do not agree that
“In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the presence of counsel at a pre-indictment lineup was not a requirement of due process. This Court has followed Kirby in a number of decisions: State v. Hargrove, 330
So.2d 895 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976); and State v. Smith, 357 So.2d 798 (La.1978).”
For these reasons I respectfully concur.
DENNIS, Justice, concurring.
Once counsel has been retained or appointed, the accused has a right to his counsel‘s presence when he is interrogated or when his person is exhibited at a line-up. Insofar as the record disclosеs in this case, however, the defendants did not inform the officers that an attorney had been retained or appointed to represent them in any criminal proceeding. In effect, they merely objected to a line-up being conducted without an attorney present to represent them. Although a defendant‘s right to the assistance of counsel at a line-up is given fuller protection under our state constitution than by the narrower federal standard,
Notes
Moreover, neither the motion to suppress nor defendants’ trial objection challenged the admissibility on hearsay grounds of the manager‘s testimony concerning his prior identifications. See Justice Tate‘s excellent and scholarly discussion of that problem in State v. Ford, 336 So.2d 817 (La. 1976). Compare F.R.Ev. 801 which recognizes the admissibility of such testimony by а witness concerning his prior identification. See also United States v. Barbati, 284 F.Supp. 409 (E.D.N.Y.1968). Thus, that issue is not before the court in this appeal.
“At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.”
Our construction of “stage of the proceedings” parallels the United States Supreme Court‘s analysis of the Sixth Amendment rights of an accused at an identification procedure in which he is compelled to participatе. See State v. Stewart, 389 So.2d 1321 (La.1980); State v. Vaughn, 378 So.2d 905 (La. 1979); State v. Johnson, 327 So.2d 388 (La.1976).
Finally, defendants complain that the prosecutor improperly remarked in closing argument that the defense did not furnish the names and addresses of the alibi witnesses (which were not requested timely). Defendants contend the comment conveyed the impression that their counsel had concealed evidence.
Although improper, the comment can hardly be attributed any significant impact on the factfinding process, and we conclude that reversal is not required.