68 Cal.2d 183, 11709, People v. Caruso

Docket Nº:11709
Citation:68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336
Opinion Judge:[9] Mosk
Party Name:People v. Caruso
Attorney:[7] Russell E. Parsons for Defendant and Appellant. [8] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Bradley A. Stoutt, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:January 26, 1968
Court:Supreme Court of California

Page 183

68 Cal.2d 183

65 Cal.Rptr. 336, 436 P.2d 336

The PEOPLE, Plaintiff and Respondent,


Edward John CARUSO, Defendant and Appellant.

Cr. 11709.

Supreme Court of California

Jan. 26, 1968.

In Bank

As Modified on Denial of Rehearing Feb. 21, 1968.

Page 184

Russell E. Parsons, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree robbery. (Pen.Code, § 211.)

At the police lineup defendant did not have the assistance of counsel, a right that has since been held to be guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. (United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) We have heretofore decided, however, that the rule of Wade and Gilbert, requiring the exclusion of in-court identification testimony tainted by displaying an accused to identifying witnesses before trial in the absence of his counsel, unless an effective waiver has been procured, is to be given only prospective application. (People v. Feggans (1967) 67 A.C. 447, 62 Cal.Rptr. 419.) Since this is a Pre-Wade and Gilbert case, before defendant may invoke an exclusionary concept he must demonstrate that the lineup 'resulted in such unfairness that it infringed his right to due process of law.' (Stovall v. Denno (1967) 388 U.S. 293, 299, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199.) Defendant Caruso has made a showing that the lineup was unfair, resulting in tainted in-court identification essential to the People's case. The People fail to demonstrate that the error was harmless (Chapman v. State v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705), and the judgment must therefore be reversed.

Page 185

On the morning of February 23, 1965, Olen Seeley, an employee at a Robert Hall store, momentarily left his job to seek some matches in his car. As he walked through the store parking lot he noticed a parked black two-door Ford hardtop with a man inside; he detected nothing unusual about the man or the vehicle.

Later that day, about 12:45 p.m., Seeley and Robert Butkus, the store manager, left the store to make a routine deposit of the morning receipts. Butkus had just inserted the key in the ignition of his station wagon when he heard a car pull up behind him, and both he and Seeley turned to look at it. The car slowed to a halt immediately behind the station wagon and blocked its exit from the store parking lot.

Before the car came to a complete stop the passenger door was opened, and a man wearing a dark zip-up jacket, a snap brim hat, and a handkerchief over the bridge of his nose, quickly approached the driver's side of the station wagon. As he advanced he drew his hand from the inside of his jacket, disclosing what appeared to be an automatic pistol.

At this point Seeley observed the profile of the driver of the car, and Butkus 'saw' him. Both testified that the length of their view was five to six seconds. Both described the driver as big, with dark wavy hair and a dark complexion. Neither victim could describe the driver's clothing, although Butkus thought he was wearing a T-shirt. Their attention was primarily focused, quite naturally, on the armed, masked man who was moving toward them. When the masked man reached the station wagon, he ordered Butkus to give him the money and the keys to his car. Butkus quickly complied with both orders, and and in response to a further demand he and Seeley crouched down on the seat while the robbers drove off. The total episode, resulting in seizure of a white bag that contained the store's receipts, had taken no more than 30 seconds. Butkus and Seeley immediately reentered the store and called the police. Officers arrived within minutes, about 12:58 p.m.

Later that afternoon the police located the black Ford approximately four blocks from the scene of the robbery in a parking area reserved for a commercial laboratory. As the laboratory's production manager, Tom Dulin, returned from lunch he discovered to his annoyance that a car had just parked in his private space. He attempted to explain that it was illegally parked but the driver hurried off, mumbling that

Page 186

he would be back later. He noted that the man was carrying a brown paper sack but could not recall the man's physical appearance. Dulin watched him leave the parking area, run diagonally across Valley Street to a nearby intersection, and...

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