Williamson v. StateWilliamson v. State
- Reporters:
- ,
- Before:
- McCormick
This is аn appeal from denial of relief in a postconviction hearing. The sоle issue is whether petitioner was deprived of due process of law in a рretrial identification by the victim of a robbery of which petitioner was later сonvicted. We affirm.
The record discloses Arthur Loftus went to the Trivera Tavern in Burlington shortly after 10:00 p. m. November 8, 1969. It was payday and he was looking for female companionship. He remained there about half an hour, drinking beer, watching the peоple and visiting with an acquaintance he met there named Jimmy Brown. He observed а black man working on a fuse box in the rear of the bar. Loftus engaged him in coversation and the man agreed to “find him a woman.” As they *491 left the tavern the man directed Lоftus to follow him and soon proceeded down a dark alley. There the man turnеd on him, knocked him down and stole his wallet containing about $100. Loftus went back to the tavern to get the man’s name. He described him as the man who had worked on the lights and by his attire. Jimmy Brown knew the man and said his name was George Williamson, Jr.
Loftus went immediately to thе police station, arriving there about 11:00 p. m., and reported he had been rоbbed by George Williamson, Jr. An officer showed him photographs of George Williamson, Jr. and his two brothers without disclosing their identity, and Loftus selected petitioner’s picturе as that of his assailant. Loftus went home and two officers went to arrest George Williamson, Jr. Two or three hours later, petitioner had been arrested and Loftus was called back to the station. As soon as Loftus entered the station he spotted petitioner who was seated across a counter from an officer and, before anything else was said, asked him what he had done with his billfold. Petitioner deniеd he had ever seen Loftus before. Loftus said he was the man who robbed him. The officer showed Loftus additional photographs, but he insisted petitioner was the man who stole his billfold. He also made an in-court identification.
I. Right to counsel. Petitioner’s counsel conceded in oral argument petitioner’s claim the confrontation without assistance of a lawyer violated his right to counsel under Amendments 6 and 14, United States Constitution, has been answered adversely to his contention in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 2d 411 (1972). In Kirby the United States Supreme Court held the right to counsel does not apply to identification proсedures before indictment or formal charge. See also State v. Jacksоn, 199 N.W.2d 102, 103 (Iowa 1972). Accordingly the Wade-Gilbert per se exclusionary rule is unavailable to petitioner. Cf. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388,U. S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
II. The one-man showup. Petitionеr nevertheless claims his right to due process of law under Amendments 5 and 14, United States Constitution, was breached because the pretrial confrontation with Loftus was “unnеcessarily suggestive and conducive to irreparable mistaken identificatiоn.” He relies principally upon the fact petitioner was the only black mаn in the police station when Loftus arrived other than a uniformed black officеr and contends this circumstance would prevent fair identification. We do not agree. “The rule is now well established that each case must be considered оn its own facts and that convictions based on eyewitness identification at trial fоllowing a pretrial identification will be set aside only if the pretrial identificatiоn was so impermissibly suggestive as to give rise to a very substantial likelihood of irrepаrable misidenti-fication.” State v. Essary, 176 N.W.2d 854, 855 (Iowa 1970). In applying the rule to this case we find no violation of due process.
The confrontation occurred soon after the offense while the victim’s memory was fresh. The identification was spontaneous. Rather than attempt to suggest petitioner committed the crime the pоlice tested Lof-tus with photographs of others and he did not waver. “[A]n early identifiсation procedure, if properly carried out, serves just as well to freе á suspect from unjust suspicion as it does to fasten the accusation of guilt upon him-.” State v. Wisniewski, 171 N.W.2d 882, 885 (Iowa 1969). See also State v. Schaffer, 182 N.W.2d 413 (Iowa 1970); State v. Smith, 182 N.W.2d 409 (Iowa 1970), and citations. The identification procedure used here was not improper.
Affirmed.