People v. Lawrence , 4 Cal. 3d 273 ( 1971 )

Opinion

WRIGHT, C. J.

Defendant appeals from a judgment entered upon jury verdicts finding him guilty of kidnaping (Pen. Code, § 207) and assault with a deadly weapon (Pen. Code, § 245).

In this case we hold that the rules of United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951], do not apply to pretrial photographic identifications made of a suspect after his arrest. We affirm the judgment because there is no evidence that the photographic identification procedure used denied defendant due process of law.

At 8:30 p.m. on February 12, 1968, a man forced Mrs. Susan Ward into his car at gunpoint. About 10 minutes later she escaped, ran to a nearby house, and called the police, to whom she described her assailant. Defendant was arrested about two hours later. The following day at the police station Mrs. Ward identified defendant as her assailant from photographs taken of a simulated lineup conducted earlier that day. No witnesses were present at the time the photographs were taken nor was defendant’s counsel present.

Before the trial¹ defendant moved to suppress evidence of Mrs. Ward’s identification of him. The parties' stipulated that the court’s decision on the legality of the photographs of the purported lineup and the admissibility of the identification testimony would be binding at trial, but that defendant would be free to attack the probative weight to be given the identifications.

At the pretrial hearing defendant submitted the preliminary hearing transcript, testified himself, and called Mrs. Ward and David Horn, his attorney, as witnesses.

Mrs. Ward testified substantially as hereinafter set forth. On the evening of February 12, 1968, she was walking home from a neighborhood supermarket when she was accosted in its parking lot by a man brandishing a gun. The man stood facing her about two feet away, next to a car. He said, “I’m sorry it has to be you,” and forced" her into' the car. He told her not to give him any trouble or “he would give me this . . . and he pointed the gun and he shot it. . . .” The area around the automobile was illuminated and Mrs. Ward could see her assailant clearly. She described him as being about five feet eight to five feet ten inches tall and in his late thirties or early forties. She was able to get a good look at his full face and described him as having a medium complexion, dark curly hair at the temples, deep lines and furrows in his forehead and under his chin, and a face that was pockmarked. He was wearing a black trenchcoat, black hat, dark pants and dark pointed shoes.

Mrs. Ward further testified that she had been requested to come to the police station on the day following the incident. She arrived there at about 9 a.m. and recounted her story to Sergeant Duncan. She was told that the police had a suspect in custody, information she also had already received the previous night. Sometime in the afternoon of the same day three color photographs of five men standing in a row were shown by Duncan to Mrs. Ward who apparently had remained at the police station throughout the entire period of time. Each photograph depicted the same five men but different poses were assumed in each of the pictures.

At the photographic identification interview Duncan did not tell Mrs. Ward one of the men was the suspect in custody; nevertheless, she hoped her assailant was among those pictured. Duncan told her to be sure to pick out the right one, by which she understood him to mean that she was to be certain not to pick out someone who had nothing to do with the crime. His statement did not lead her to believe that one of the men was the suspect. Duncan said nothing at all during the time she was looking at the photographs and he did not give her the names of any of the persons in the photographs or any information about any of them. He made no marks on the photographs and did not point out anyone in the photographs. Mrs. Ward testified that as far as she was concerned her assailant was not necessarily to be among the men shown in the pictures.

After looking at the photographs for two or three seconds she pointed out defendant as the person who had accosted her at gunpoint. Duncan then told her that “three other girls had positively identified him.” He did not explain that those identifications were made with regard to offenses unrelated to the kidnaping of Mrs. Ward.

Defendant testified that the photographs were taken after he had talked to Mr. Horn, his attorney, and that when being taken to be photographed he told his police escort: “[t]hat my counsel had advised me that it was my right to a fair trial, and that a fair trial I could not have if I participated in police lineups without his presence; and that I should tell the officers— any officers who approached me to participate in any kind of procedure to please notify him and give him an opportunity to be present and we would be more than happy to cooperate in any way, statements, photographs, or anything.” Defendant testified that the same police officer had just taken him from a meeting with Horn in the interview room.

Horn testified that on his first visit he had advised defendant to refuse to answer any questions and to say that he did so on advice of counsel, that nothing was said on that occasion about any lineup, but that the subject was mentioned on February 14, the day following the simulated lineup and identification by Mrs. Ward.

The court denied the motion to suppress, ruling that counsel was not required at the showing of the pictures, that the purported lineup was not so unnecessarily suggestive and conducive to irreparable mistaken identification that defendant was denied due process of law, and that there was no evidence to suggest that the pretrial identification would taint an in-court identification.

The first trial ended when the court declared a mistrial after the jurors were unable to arrive at a verdict. At his retrial defendant again moved to. suppress the identification testimony. The court denied the renewed motion and indicated that although it disagreed with the original ruling on the pretrial motion it considered itself bound by the parties’ stipulation that the ruling would be binding at trial. Defendant contends that the court was not bound by the prior ruling. Because we hold the photographic identification procedure neither entitled defendant to counsel nor denied him due process of law we need not decide this issue.

Although it appears that better police procedures could well have been employed by conducting a true lineup with counsel for defendant and the witness present (and it further appears that ample time and opportunity were available to present such a lineup) the failure to take such action is not the crucial factor in the determination of the case at bench. We are involved only with a photograph of a simulated lineup and we see no distinction in. this respect between such identifications and identifications made from mug shots or other types of photographic displays. (See United States V. Collins (4th Cir. 1969) 416 F.2d 696; Commonwealth v. Whiting (1970) 439 Pa. 205 [266 A.2d 738, 740, fn. 3].) As indicated infra the overwhelming weight of authority holds that counsel is not required at a post-arrest showing of pictures. Thus, if the police had cut up the photographs and shown the pictures of the participants individually Wade and Gilbert would have no conceivable application. We find no basis in logic to reach a different conclusion because pictures of five men standing in a line were shown.

In United States v. Wade, supra, 388 U.S. 218, the United States Supreme Court held that a pretrial lineup was a “critical stage” of the prosecution at which the accused was entitled to the presence of counsel. Wade and its companion case, Gilbert v. California, supra, 388 U.S. 263, “fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel.” (Stovall v. Denno (1967) 388 U.S. 293, 297 [18 L.Ed.2d 1199, 1203-1204, 87 S.Ct. 1967]. (Italics added.)) The court stated that it would scrutinize any “pretrial confrontation of the accused” and consider the “particular confrontation” involved to determine if counsel’s presence was required. (United States v. Wade, supra, 388 U.S. 218, 227 [18 L.Ed.2d 1149, 1157]. (Italics added.)) Thus the key issue before this court is whether a photographic identification proceeding constitutes an exhibition or confrontation of the accused to the witness.

In Wade, Gilbert, and Stovall, the police exhibited the accused to witnesses in person. At such corporeal exhibitions the authorities may require the accused to move about, perform certain acts, don particular clothing, or speak the identical words used by the accused during the commission of the offense. (United States v. Wade, supra, 388 U.S. 218, 221-223 [18 L.Ed.2d 1149, 1153-1155]; Gilbert v. California, supra, 388 U.S. 263, 265-267 [18 L.Ed.2d 1178, 1181-1183]; Schmerber v. California (1966) 384 U.S. 757, 760-765 [16 L.Ed.2d 908, 913-916, 86 S.Ct. 1826]; Holt v. United States (1910) 218 U.S. 245, 252-253 [54 L.Ed. 1021, 1030, 31 S.Ct. 2].) The witness observes the suspect in person from a short distance performing the very acts the criminal did during the perpetration of the crime. At photographic identification proceedings, however, the accused is not present and the witness observes only static poses of those pictured. When mug shots are used the witness is presented with only a collection of faces. Such a witness does not observe the suspect repeat actions or hear the accused speak. We conclude, therefore, that the showing of photographs of the accused to a witness is not a confrontation or exhibition as those words are used in Wade and Gilbert. (McGee v. United States (10th Cir. 1968) 402 F.2d 434, 436, cert. den. 394 U.S. 908 [22 L.Ed.2d 220, 89 S.Ct. 1020].)

It is, of course, true that the possibility of unfairness exists in photographic identifications as well as in corporeal identifications. (Simmons v. United States (1968) 390 U.S. 377, 383 [19 L.Ed.2d 1247, 1252, 88 S.Ct. 967]; P. Wall, Eye-Witness Identification in Criminal Cases (1965) pp. 74-77, 82-83.) However, “the danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error.” (Simmons v. United States, supra, 390 U.S. at p. 384 [19 L.Ed.2d at p. 1253].) As long as the photographs from which the witness made his identification are preserved and available at trial, counsel for the accused, by using them in cross-examination of prosecution witnesses, can easily reveal the possibility of prejudice and thereby impugn the identification testimony.² (United States v. Clark (E.D.Pa. 1968) 289 F.Supp. 610, 621.) The court also may examine the photos and determine for itself if the display of photographs was fairly presented. (Cf. People v. Beivelman (1968) 70 Cal.2d 60, 78 [73 Cal.Rptr. 521, 447 P.2d 913].)

In United States v. Collins, supra, 416 F.2d 696, certiorari denied 396 U.S. 1025 [24 L.Ed.2d 519, 90 S.Ct. 601], the defendant was exhibited in a lineup at which his counsel was present. As some witnesses were not present, the police photographed the lineup and later showed the pictures to those witnesses without notifying defendant or his attorney. The court held that since the display was held “under conditions not embracing the apprehensions of a lineup” counsel was not required when the pictures were shown. (416 F.2d at p. 699.) The overwhelming weight of authority similarly holds that counsel’s presence is not required when mug shots or other pictures of a suspect already in custody are shown to witnesses. (United States v. Ballard (5th Cir. 1970) 423 F.2d 127, 130-131; United States v. Bennett (2d Cir. 1969) 409 F.2d 888, 899-900, cert. den. 396 U.S. 852 [24 L.Ed.2d 101, 90 S.Ct. 113, 117]; McGee v. United States, supra, 402 F.2d 434, 436, cert. den. 394 U.S. 908 [22 L.Ed.2d 220, 89 S.Ct. 1020]; People v. Hawkins (1970) 7 Cal.App.3d 117, 120-122 [86 Cal.Rptr. 428]; Peopled. Lineman (1970) 5 Cal.App.3d 1, 4 [84 Cal.Rptr. 891]; Peopled. Green (1969) 3 Cal.App.3d 240, 246 [83 Cal.Rptr. 491]; In re Carl T. (1969) 1 Cal.App.3d 344, 350, fn. 2 [81 Cal.Rptr. 655]; People v. Vessell (1969) 275 Cal.App.2d 1012, 1016-1017 [80 Cal.Rptr. 617]; People v. London (1969) 274 Cal.App.2d 241, 242 [78 Cal.Rptr. 848]; see McClain v. State (1969) 247 Ark. 33 [444 S.W.2d 99, 102-104]; Vincent v. State (Del. 1969) 256 A.2d 268, 270; Commonwealth v. Geraway (1969) 355 Mass. 433 [245 N.E.2d 423, 427-428]; Barnes v. State (1968) 5 Md.App. 144 [245 A.2d 626, 630].)³ Accordingly, we conclude the right to counsel does not extend to post-arrest photographic identification proceedings.

We also find no denial of due process. We are of the opinion that the photographic lineup was not “unnecessarily suggestive and conducive to irreparable mistaken identification.” (Stovall v. Denno, supra, 388 U.S. 293, 302 [18 L.Ed.2d 1199, 1206].) It is true that in the three color photographs defendant is the only participant wearing a gold shirt and gold sweater, whereas the four other men wore white shirts or white sweaters. In People v. Beivelman, supra, 70 Cal.2d 60, 78, we held, however, that the fact that appellant wore light-colored pants while the other men wore dark-colored pants did not render that lineup unfair. The clothing worn by defendant was not similar to that described to the police by Mrs. Ward, and each man wore a shirt or sweater dissimilar from each of the others. The participants all appeared to be of a comparable age and of similar build. None had distinctive features. As there was nothing in the conduct of the procedure whereby Mrs. Ward was shown the photographs that was “so impermissibly suggestive as to give rise to- a very substantial likelihood of irreparable misidentification” (Simmons v. United States, supra, 390 U.S. 377, 384 [19 L.Ed.2d 1247, 1253]), the identification testimony was properly admitted.⁴

We conclude that the out-of-court identification was properly received, that defendant was not deprived of his right to counsel and that there was no denial of due process.

The judgment is affirmed.

McComb, J., Mosk, J., and Burke, J., concurred.

1 Identification evidence is properly challenged on Wade-Gilbert grounds by means of a pretrial motion to suppress or by a timely objection at the time the evidence is offered at trial. (People v. Martin (1970) 2 Cal.3d 822, 832, fn. 11 [87 Cal.Rptr. 709, 471 P.2d 29].)

2 In People v. Fowler (1969) 1 Cal.3d 335 [82 Cal.Rptr. 363, 461 P.2d 643], it was contended that it would be possible to reconstruct the lineup from, among other things, photographs taken of the showup line after the lineup was completed. This procedure is clearly inadequate because there is no assurance that the post-lineup photographs duplicate what the witness actually observed. But when the photographs from which the witness made his identification are preserved the court sees exactly what the witness saw, and an absolute duplication of the identification proceeding is possible.

3 Contra, United States v. Zeiler (3d Cir. 1970) 427 F.2d 1305; Commonwealth v. Whiting, supra, 439 Pa. 205 [266 A.2d 738, 740]; Thompson v. State (1969) 85 Nev. 134 [451 P.2d 704, 706-707], certiorari denied 396 U.S. 893 [24 L. Ed.2d 170, 90 S.Ct. 189]; Cox v. State (Fla.App. 1969) 219 So.2d 762, 765; United States v. Collins, supra, 416 F.2d 696, 701 (Winter, J., dissenting) certiorari denied 396 U.S. 1025 [24 L.Ed.2d 519, 90 S.Ct. 601]; United States v. Marson (4th Cir. 1968) 408 F.2d 644, 653 (Winter, J., concurring and dissenting), certiorari denied 393 U.S. 1056 [21 L.Ed.2d 698, 89 S.Ct. 695]; People v. Rowell (1968) 14 Mich.App. 190 [165 N.W.2d 423] (Levin, J., concurring).

Zeiler, a third circuit case, overruled United. States v. Conway (3d Cir. 1969) 415 F.2d 158, certiorari denied 397 U.S. 994 [25 L.Ed.2d 401, 90 S.Ct. 1131], without mentioning it or any other contrary authority.

4 There is also circumstantial evidence that points to defendant’s guilt. Defendant was arrested two hours after the crime in a car closely resembling that described by Mrs. Ward as the car driven by her assailant. The car driven by defendant also matched the market manager’s description of the one he saw in the parking lot at the time of the offense. An expert police criminologist testified that in his opinion the casing of the bullet found at the scene a few hours after the crime came from the gun found in defendant’s possession at the time of his arrest.