Stewart v. StateStewart v. State
In State v. Hattaway, 621 So.2d 796 (La.1993), this court determined that the right to counsel guaranteed by
On October 14, 1977, Anthony Alexander and Anthony Green were walking home together when they were stopped by two men in an automobile and ordered into the car at gunpoint. They were robbed and driven tо East New Orleans, where Green was forced to lie on the ground for between 10 and 30 minutes. He was then told to get back into the car, and Alexander was ordеred out of the car. A fight ensued between Alexander and the passenger who dropped the gun he was holding. Green and the driver scrambled out of the car, and the driver succeeded in retrieving the fallen pistol. Green was
That night, police showed Green mugshots, but Green was unable to identify either of the two assailants. Thirteen months later, police informed Green that they had a suspect and summoned him to the station to view a photographic lineup. According to Green, he examined the photographs for 1-2 hours before identifying the defendant, Clyde Stewart, as the passenger/assailant. Stewart was subsequently arrested for first degree murder.
On December 7, 1978, Stewart made his first judicial appearance pursuant to
In Hattaway, supra, this court decided that a defendant has the right to an attorney “after the initiation of adverse judicial criminal proceedings and the appointment of counsel to assist the defendant, ... at any confrontation caused by the state that creates potential substantial prejudice to his right to a meaningful defense оr a fair trial, if the help of a lawyer would serve to avoid or reduce that prejudice.” Id. at 798. Earlier cases had held that the right to counsel does not аttach until the time of indictment, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), but Hattaway relied upon a wealth of later Supreme Court jurisprudence to extend this constitutional guarantee to the time of a defendant‘s first court appearance.1 Stewart‘s lineup identification occurred between his initial court appearance and indictment. He now contends that he should receive the benefit of Hattaway even though his conviction became final before Hattaway was decided.
The general rule is that new precepts of law are not to be applied retroactively. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992) (adopting the rule and reasoning of Teague for Louisiana courts).2 However, there are two exceptions to this principle. First, a new rule should be retroaсtively applied “if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.‘” Teague, 489 U.S., at 311, 109 S.Ct., at 1075, quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1171, 1180, 28 L.Ed.2d 404 (1971) (Hаrlan, J., concurring). This exception is not at issue here.
The second exception to the rule of nonretroactivity is “to be reserved for watershed rules of criminal procedure.” Teague, 489 U.S., at 311, 109 S.Ct., at 1076. As described by Justice Harlan, “in some situations it might be that time and growth in social capacity, as well as judicial perceptions
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court hеld that post-indictment lineup was a critical stage of prosecution at which the defendant was entitled to counsel. The Court found grave potential for prejudice at the lineup that could well be averted by the presence of counsel. 388 U.S., at 236, 87 S.Ct, at 1937. The Court noted that a suspect may not detect improper suggestive influences, and that even when he does observe any unfairness, his ability to effectively reconstruct and convince the jury of such abusе is minute without the assistance of an attorney who was present at the lineup. 388 U.S., at 230-231, 87 S.Ct., at 1934-1935. Even so, the Court chose not to make the rule established by Wade retroactive to convictions finalized before Wade was decided. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
Stovall was decided before Teague, and therefore relied on the earlier retroactivity jurisprudence of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Linkletter outlined a three-prong test to determine whether a new rule should be applied retroactively: (a) the purpose to be served by the new law, (b) reliance by law enforcement authorities on the old standard, and (c) the effect of the rеtroactive application of the new rule on the effective administration of justice.
In Stovall, Justice Brennan remarked that “[t]he extent to which a cоndemned practice infects the integrity of the truth-determining process at trial is a `question of probabilities.‘” 388 U.S., at 298, 87 S.Ct., at 1970. He concluded that the probability of injustice resulting from the lack of counsel at lineup is insufficient to outweigh the countervailing considerations of prior justified reliance on the earlier standard and the disruption of the administration of justice that would result from a retroactive application of the new Wade rule. 388 U.S., at 299-300, 87 S.Ct., at 1971.
Similarly, we conclude that the new rule оf law announced by Hattaway should not be applied retroactively to police lineups conducted without benefit of counsel. The right to counsel at trial is indispensable to the fair administration of justice.3 However, the need for counsel at an identification lineup, before the State has obtained an indictment and set its course on prosecution, is not such a “bedrock component” of the fair adjudication of a criminal case. It is neither so likеly to result in prejudice, nor so damaging if it does. Moreover, the right remains with the defendant to prove unfairness depriving him of due process. Stewart has tried, and failed, to do so in this case. The new rule of Hattaway cannot now provide him relief.
The petition for post-conviction relief is DISMISSED.
JOHNSON, J., concurs in result.
LEMMON, J., concurs.