State v. De Lano , 74 Wash. 2d 962 ( 1968 )

Per Curiam.

This is an appeal from the judgment and sentence imposed after a conviction of three counts charging robbery and one count charging attempted robbery. Appellant’s sole¹ assignment of error is that the trial court erred in admitting certain testimony as to the identification of appellant at a lineup without first determining whether such evidence was tainted by the illegality of the lineup.

The state concedes that if the lineup in question had been conducted after June 12, 1967 (instead of February 22, 1967 when it was conducted), appellant’s contentions might have some merit because of the decisions of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 Sup. Ct. 1926 (1967), and in Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 Sup. Ct. 1951 (1967). The force of the rules announced in those cases has, however, been expressly limited, to prospective application. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 Sup Ct. 1967 (1967).

Being unwilling, as urged by appellant, to formulate a rule of our own in regard to the factual situation presented by this case, we hold appellant’s assignments of error to be without merit.

Judgment and sentence is affirmed.

1 Appellant’s counsel of record on appeal did not appear for oral argument. A second assignment of error relating to an alleged illegal search and seizure was waived by the attorney who did appear in his stead.