State v. Dessureault

• Citation: 104 Ariz. 380,453 P.2d 951
• Decision Date: 30 April 1969
• Docket Number: No. 1899,1899
• Parties: The STATE of Arizona, Appellee, v. Robert Gary DESSUREAULT, Appellant.
• Court: Supreme Court of Arizona

Page 951

453 P.2d 951

104 Ariz. 380

The STATE of Arizona, Appellee, v. Robert Gary DESSUREAULT, Appellant.

No. 1899.

Supreme Court of Arizona, In Banc.

April 30, 1969.

Rehearing Denied June 4, 1969. See 454 P.2d 981.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Darrell F. Smith, Former Atty. Gen., Phoenix, for appellee.

Vernon B. Croaff, Public Defender, by Grant Laney, Deputy Public Defender, Phoenix, for appellant.

STRUCKMEYER, Justice.

Robert Gary Dessureault was charged under A.R.S. § 13--641 with the robbery of a Circle K Market in the City of Phoenix, Arizona. He was tried, found guilty and sentenced to a term of years in the State Penitentiary. From the jdugment of conviction and sentence he appeals.

At about 1:00 a.m. on the 20th day of June, 1967, Ronald E. Wilkins, an employee of a Circle K Market in the City of Phoenix, Arizona, was working in the store alone when a man, later identified as Dessureault, entered and after threatening Wilkins with a hand gun took the contents of the cash register. Early the next morning an informant telephoned the police and gave them information which led to Dessureault's arrest. The police arrested Dessureault at his residence and after a search of his automobile and room, found a loaded gun and money in the exact amount taken from the store. At about the hour of 10:00 a.m., a lineup was held in which Dessureault was present with three others. Wilkins identified Dessureault as the robber. Dessureault did not have an attorney present at the lineup nor does it appear that he intelligently and voluntarily waived any constitutional rights which he might have had thereto.

At the trial Wilkins identified Dessureault as the robber. The defendant here challenges the identification in all of its ramifications pointing to the three cases decided by the Supreme Court of the United States on June 12, 1967, of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (U.S. Supreme Court, April 2nd, 1969).

Both Wade and Gilbert involved lineup identifications. Both identifications were made at some considerable time after the offense and after indictments had been returned and counsel had either been retained or appointed to assist in the defense. In Wade the court held 'there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution' at which he was entitled to the aid of counsel. The court reasoned that a lineup is often used to crystalize a witness' identification and 'Privacy results in secrecy and this is turn results in a gap in our knowledge as to what in fact goes on.'

In Arizona an indigent accused is entitled as a matter of right to appointive counsel upon arraignment in the superior court. His rights under the Sixth Amendment to the Constitution of the United States are materially lessened when contrasted with that of a defendant who is able to retain private counsel from the moment he becomes a suspect. Constitutional rights ought not rest upon the financial ability of an accused to employ counsel to preserve those rights. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. We are not, however, prepared at this time to extend the application of Wade and Gilbert to pre-indictment or pre-information situations, rather, we think, controlling is the application of the Fourteenth Amendment to the Constitution of the United States in Stovall. There, the court, itself, found from the totality of the circumstances surrounding the identification that Stovall had been extended due process of law in a constitutionally fair trial.

In the instant case the prosecution did not purport to rely on the lineup identification, rather skipped lightly through an in-court identification in this fashion:

'Q * * * Now, before we go any further, is that person in the courtroom today?

'A Yes.

'Q Would you point him out to the court?

'A There, the defendant over there.'

On cross-examination, the prior lineup was developed and counsel compelled the production of this picture of the lineup. Dessureault's position is number one.

The person perpetrating the offense at 1:00 a.m. on the morning of June 20th, 1967, was described as having a moustache and a beard. Dessureault when placed in a lineup with three others was the only person who had a moustache and a beard. Palpably, the lineup itself had no virtue as a test of Wilkins' ability to discriminate. It was afflicted with all the possibilities for mistaken identification and the attendant evils at which the Supreme Court in its recent decisions has been striking.

We, of course, recognize that a lineup does not require individuals of absolute identical dress, size and physical characteristics. If it were possible to establish such a lineup, clearly, identification would be impossible. It is the differences which distinguish one individual from another and by which identifications are made, but where the differences are so great that only one person could, within reason, fill the description of the accused, leaving the witness with only one possible choice, the lineup itself becomes significantly suggestive and as such materially increases the dangers inherent in eye witness identification.

While we are of the view that the holdings in Wade and Gilbert have no application because this was not a post indictment situation and there was neither retained nor appointed counsel, as a pretrial identification, it is within the ambit of the decision in Stovall. Consistent with the procedures used in Stovall, we examine the totality of the circumstances to determine whether there has been a denial of a fair trial because of a want of due process of law, and in the light of our examination of the Supreme Court's decisions cited supra, apply these principles on review as compatible not only with this but with all pretrial identifications.

First, where, as here the in-court identification is challenged at the trial level, meaningful review requires that the appellate court reach one of the following conclusions: if it can be determined from the record on clear and convincing evidence that the in-court identification was not tainted by the prior identification procedures or from evidence beyond a reasonable doubt that it was harmless, and there is otherwise no error, the conviction will be affirmed. If it can be determined from the record that the in-court identification was tainted and that it does not appear harmless beyond a reasonable doubt, the conviction will be reversed. If the record does not permit an informed judgment that the in-court identification had an independent source (was not tainted) and was not harmless beyond a reasonable doubt, the cause will be remanded to the lower court for a hearing at which findings of fact must be made and the record then be transmitted to the appellate court for its independent scrutiny, where a decision will be made giving the customary weight to the trial court's findings.

Second, if the in-court identification is not challenged at the trial level, it will be presumed thereafter that prior identification procedures did not taint the in-court identification. This presumption we deem conclusive for the obvious reason that all litigation, even criminal, must end at some point. Matters which could have been determined by the mere asking, if not raised, will be deemed settled adversely to the accused.

Similarly, effective procedures at the trial court level are:

First, if at the trial the proposed in-court identification is challenged, the trial judge must immediately hold a hearing in the absence of the jury to determine from clear and convincing evidence whether it contained unduly suggestive circumstances. In this the burden is on the prosecution to establish from all the circumstances surrounding the pretrial identification that it was not such as to be unduly suggestive.

Second, if the trial judge concludes that the circumstances of the pretrial identification were unduly suggestive or that the prosecution has failed to establish by clear and convincing evidence that they were not, then it is the prosecution's burden to satisfy the trial judge from clear and convincing evidence that the proposed in-court identification is not tainted by the prior identification.

Third, if requested, the court must instruct the jury that before returning a verdict of guilty it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt.

Here, the record supports the conclusion that although the pretrial identification was unduly suggestive, the in-court identification had an independent source other than the lineup. True, the complaining witness, Wilkins, acknowledged on cross-examination that the lineup identification helped in making the in-court identification. He testified:

'Q Now, did he--in your opinion did the period that you observed this person in the line-up, would that in anyway, does that in anyway help you here today make the identification that you are making?

'A It does, yes.

'Q Each time, it is only common sense--each time you see a person, especially a stranger, you are a little bit more able to tell who he is, isn't that true?

'A Yes, sir.'

But from this we do not think it necessarily follows that the in-court identification was tainted. This reinforcement of the witness' original identification, honestly admitted, is inherent in...