388 U.S. 263 (1967), 223, Gilbert v. California

Docket Nº:No. 223
Citation:388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178
Party Name:Gilbert v. California
Case Date:June 12, 1967
Court:United States Supreme Court
 
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Page 263

388 U.S. 263 (1967)

87 S.Ct. 1951, 18 L.Ed.2d 1178

Gilbert

v.

California

No. 223

United States Supreme Court

June 12, 1967

        Argued February 15-16, 1967

        CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

        Syllabus

        Petitioner was convicted of armed robbery and the murder of a police officer. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. Petitioner alleges constitutional errors in the admission of testimony of some of the witnesses that they had also identified him at a lineup, which occurred 16 days after his indictment and after appointment of counsel, who was not notified, and in in-court identifications of other witnesses present at that lineup; in the admission of handwriting exemplars taken from him after arrest, and in the admission of a codefendant's out-of-court statements mentioning petitioner's part in the crimes, which statements were held to have been improperly admitted against the codefendant on the latter's appeal. Additionally, he alleges violation of his Fourth Amendment rights by police seizure of photographs of him from his locked apartment after a warrantless entry, and the admission of testimony identifying him from these photographs.

        Held:

        1. The taking of handwriting exemplars did not violate petitioner's constitutional rights. Pp. 265-267.

        (a) The Fifth Amendment privilege against self-incrimination reaches compulsory communications, but a mere handwriting exemplar, in contrast with the content of what is written, is an identifying physical characteristic outside its protection. Pp. 266-267.

        (b) The taking of the exemplars was not a "critical" stage of the criminal proceedings entitling petitioner to the assistance of counsel; there is minimal risk that the absence of counsel might derogate from his right to a fair trial. P. 267.

        2. Petitioner's request for reconsideration of Delli Paoli v. United States, 352 U.S. 232 (where the Court held that appropriate instructions to the jury would suffice to prevent prejudice to a defendant from references to him in a codefendant's statement) in connection with his codefendant's statements, need not be considered in view of the California Supreme Court's holding rejecting the Delli Paoli rationale, but finding that any error to petitioner by the admission of the statements was harmless. Pp. 267-268.

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        3. A closer examination of the record than was possible when certiorari was granted reveals that the facts with respect to the search and seizure claim are not sufficiently clear to permit resolution of that question, and certiorari on this issue is vacated as improvidently granted. P. 269.

        4. The admission of the in-court identifications of petitioner without first determining that they were not tainted by the illegal lineup procedure but were of independent origin was constitutional error. United States v. Wade, ante, p. 218. Pp. 269-274.

        (a) Since the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source, petitioner is entitled only to a vacation of his conviction, pending proceedings in California courts allowing the State to establish that the in-court identifications had an independent source or that their introduction in evidence was harmless error. P. 272.

        (b) With respect to testimony of witnesses that they identified petitioner at the lineup, which is a direct result of an illegal procedure, the State is not entitled to show that such testimony had an independent source, but the California courts must, unless "able to declare a belief that it was harmless beyond a reasonable doubt," grant petitioner a new trial if such testimony was at the guilt stage, or grant appropriate relief if it was at the penalty stage. Pp. 272-274.

        63 Cal.2d 690, 408 P.2d 365, vacated and remanded.

        BRENNAN, J., lead opinion

        MR. JUSTICE BRENNAN delivered the opinion of the Court.

        This case was argued with United States v. Wade, ante, p. 218, and presents the same alleged constitutional error in the admission in evidence of in-court identifications there considered. In addition, petitioner alleges constitutional

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errors in the admission in evidence of testimony of some of the witnesses that they also identified him at the lineup, in the admission of handwriting exemplars taken from him after his arrest, and in the admission of out-of-court statements by King, a codefendant, mentioning petitioner's part in the crimes, which statements, on the codefendant's appeal decided with petitioner's, were held to have been improperly admitted against the codefendant. Finally, he alleges that his Fourth Amendment rights were violated by a police seizure of photographs of him from his locked apartment after entry without a search warrant, and the admission of testimony of witnesses that they identified him from those photographs within hours after the crime.

       Petitioner was convicted in the Superior Court of California of the armed robbery of the Mutual Savings and Loan Association of Alhambra and the murder of a police officer who entered during the course of the robbery. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed, 63 Cal.2d 690, 408 P.2d 365. We granted certiorari, 384 U.S. 985, and set the case for argument with Wade and with Stovall v. Denno, post, p. 293. [87 S.Ct. 1953] If our holding today in Wade is applied to this case, the issue whether admission of the in-court and lineup identifications is constitutional error which requires a new trial could be resolved on this record only after further proceedings in the California courts. We must therefore first determine whether petitioner's other contentions warrant any greater relief.

        I

        THE HANDWRITING EXEMPLARS

        Petitioner was arrested in Philadelphia by an FBI agent, and refused to answer questions about the Alhambra

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robbery without the advice of counsel. He later did answer questions of another agent about some Philadelphia robberies in which the robber used a handwritten note demanding that money be handed over to him, and, during that interrogation, gave the agent the handwriting exemplars. They were admitted in evidence at trial over objection that they were obtained in violation of petitioner's Fifth and Sixth Amendment rights. The California Supreme Court upheld admission of the exemplars on the sole ground that petitioner had waived any rights that he might have had not to furnish them.

[The agent] did not tell Gilbert that the exemplars would not be used in any other investigation. Thus, even if Gilbert believed that his exemplars would not be used in California, it does not appear that the authorities improperly induced such belief.

        63 Cal.2d at 708, 408 P.2d at 376. The court did not, therefore, decide petitioner's constitutional claims.

        We pass the question of waiver, since we conclude that the taking of the exemplars violated none of petitioner's constitutional rights.

        First. The taking of the exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of "an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers," and not "compulsion which makes a suspect or accused the source of `real or physical evidence'. . . ." Schmerber v. California, 384 U.S. 757, 763-764. One's voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is

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written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, at 222-223. No claim its made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616.

        Second. The taking of the exemplars was not a "critical" stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate from his right to a fair trial. Cf. United States v. Wade, supra. If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial, since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts. Thus,

the accused has the opportunity for a meaningful confrontation of the [State's] case at trial through the ordinary processes of cross-examination of the [State's] expert [handwriting] witnesses and the presentation of the evidence of [87 S.Ct. 1954] his own [handwriting] experts.

        United States v. Wade, supra, at 227-228.

        II

        ADMISSION OF CO-DEFENDANT'S STATEMENTS

        Petitioner contends that he was denied due process of law by the admission during the guilt stage of the trial of his accomplice's pretrial statements to the police which referred to petitioner 159 times in the course of reciting petitioner's role in the robbery and murder. The statements were inadmissible hearsay as to petitioner,...

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