Blue v. State

• Decision Date: 17 January 1977
• Docket Number: No. 2677,2677
• Parties: Clifton E. BLUE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 636

558 P.2d 636

Clifton E. BLUE, Appellant, v. STATE of Alaska, Appellee.

No. 2677.

Supreme Court of Alaska.

Jan. 17, 1977.

Lyle R. Carlson, Fairbanks, for appellant.

Natalie Finn, Asst. Dist. Atty., and Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

OPINION

BOOCHEVER, Chief Justice.

Clifton E. Blue appeals from his conviction and sentence on four counts of armed robbery. His appeal raises issues involving: (1) the right to an attorney in a pre-indictment lineup, (2) the validity of the pre-indictment lineup, (3) the use of a co-defendant's statement and Blue's right to confrontation where the co-defendant does not testify, (4) admission of hearsay statements by a Mr. Hyatt and (5) the validity of the sentence imposed.

We hold that Blue's right to an attorney at a pre-indictment lineup is outweighed by the exigencies involved in this case, and that the lineup was not so suggestive as to violate due process. Admission of Mr. Hyatt's hearsay statements, however, was erroneous and violated Mr. Blue's right to confrontation. Given the facts of this case, we cannot say that this error was harmless; thus, we must reverse and order a new trial for Mr. Blue. ¹

I. FACTS

On April 17, 1975, between 7:30 and 8:00 p.m., the Club Manchu Bar in Fairbanks, Alaska was robbed by two men wearing nylon stockings over their heads. Both men were armed, one with a pistol and the other with a rifle. No one was injured in the robbery, although one of the weapons was discharged, a bullet making a hole in the ceiling over the bar. The men took money from three customers in the bar, amounting to approximately $270.00, as well as about $240.00 from the cash register in the bar which was emptied by the bartender, Frances Nickens.

Shortly after the robbers left the bar, Ms. Nickens telephoned the Fairbanks police emergency number and gave this description of the robbers: two white men, one tall and one a little shorter, both with dark hair down on their necks; nylons over their heads; one had a rifle and one a pistol; one was wearing a blue jacket with patches on it. She couldn't describe the clothing of the other one. Although she thought she recognized one of the men, she told the police that she was too upset at the moment to think too much.

Police officers arrived at the Club Manchu approximately half an hour after the robbery and questioned Frances Nickens and the five customers who were present during the robbery. Ms. Nickens stated that she had recognized one of the men whose first name was Dennis. He was a friend of her ex-husband. She had known him for more than a year and had seen him from either to twelve times during the preceding year. She did not know his last name. A person who entered the bar shortly after the robbery supplied the last name of Benefield for the man named Dennis after hearing Ms. Nicken's description of him. Six police officers, including one who knew Dennis Benefield, then began a search of several bars which Mr. Benefield was known to frequent.

At approximately 9:30-9:45 p. m., three officers in informal street clothes entered the third bar of their search, the Circle M, where one of the officers recognized Dennis Benefield. A man later identified as Clifton Blue was with Dennis Benefield, and the two were engaged in conversation with a man later identified as Wayne Hyatt. The officers reportedly overheard a conversation in which Hyatt stated to Benefield and Blue that he had heard that they had robbed the Club Manchu. Both men denied this accusation and said that if they were being accused of such a thing then they might as well do it. ² At this point, three other officers outside the bar were alerted that Dennis Benefield and a man meeting the description of the other robber were inside. They entered the bar, and several officers pulled Benefield and Blue from their bar stools and pushed them against the wall in order to frisk them for weapons. Both men were handcuffed, and both men were given their Miranda warnings.

Officer Vogt, who was in charge of the investigation, telephoned Frances Nickens at approximately 10:30 p. m. and asked whether she could come to the Circle M. She arrived approximately 20 minutes later and was shown into the poolroom area of the bar where eight Caucasian men were sitting informally or playing pool. The eight men were the two defendants, three undercover police officers and three patrons of the bar-all similarly dressed in casual clothing. There were at least three or four tall men. Benefield and Blue were seated at the same table, and there were other people sitting close by. Blue was not wearing handcuffs at the time, by his own admission. While Benefield testified at the preliminary hearing to suppress the results of the lineup that he was handcuffed when Ms. Nickens viewed him, two officers testified that he was not handcuffed during the Circle M lineup.

At the first viewing, Frances Nickens positively identified Dennis Benefield as one of the robbers. She could not identify Blue seated, however, and asked to see the participants standing to help her identify the other suspect. Approximately five minutes later, she was shown a second lineup of all eight men standing against the pool table. At this time she positively identified Blue as the other robber, largely because of the way he moved and his actions. Based on this identification, Blue and Benefield were formally arrested and charged with armed robbery.

A second pre-indictment lineup was held in district court on April 29, 1975, in which the ten participants wore stockings over their heads. Counsel for the defendants were present. At this second lineup, Ms. Nickens was again able to identify Dennis Benefield as one of the robbers but was unable to identify Blue or anyone else. Of the three other eyewitnesses to the robbery who viewed the lineup in district court, no one identified either Blue or Benefield. One of the eyewitnesses, George Haskins, excluded Blue as one of the robbers, although he testified at trial that he was not '100% positive' of this exclusion. Blue and Benefield were subsequently indicted on May 14, 1975.

The defendants were jointly tried in June of 1975. The evidence at trial included the eyewitness identification summarized above. Ms. Nickens identified both Benefield and Blue in court. She based her in-court identification of Blue on her prior identification at the Circle M Bar, as well as her recognition of Blue during a jury view of the Club Manchu on the first morning of trial.

The only physical evidence in the state's case was a blue denim jacket which Blue was wearing on the night he was arrested at the Circle M Bar. ³ Ms. Nickens had described the jacket worn by the taller robbery as being blue denim with circular light-colored patches on the chest and one on the right arm near the shoulder. The jacket worn by Blue at the time of his arrest did not have any patches on it. Two police officers testified that they had observed some loose red and blue threads hanging from the pockets and one shoulder of the jacket on the night of the arrest. They also testified to observing stitching marks and an outline of what might have been a removed patch. At trial, these officers admitted that they could no longer detect the design of a patch on the jacket. Blue's sister-in-law testified that she had bought several patches and had given some to Blue's wife. Many had yellor backgrounds, and most were round. She had never seen Blue's jacket with any patches on it.

In addition to eyewitness testimony and the testimony concerning the denim jacket, two police officers testified at trial to the conversations between Hyatt, Blue and Benefield in the Circle M Bar.

II. RIGHT TO AN ATTORNEY AT THE CIRCLE M LINEUP

We first focus our attention on the April 17, 1975 lineup at the Circle M Bar. While the police did give the mandatory Miranda warnings, they did not inform defendants of the right to have an attorney present at the Circle M lineup. The defendant urges us to hold that failure to provide counsel at this stage in the pre-trial process denies him his constitutional right to counsel as guaranteed by Art. I, Sec.11 of the Alaska Constitution.

The United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), held that a lineup after an accused has been indicted is a critical stage of a criminal proceeding at which the accused has a sixth amendment right to counsel under the United States Constitution. This right is applicable to the states through the fourteenth amendment. ⁴ The Wade and Gilbert decisions created a per se exclusionary rule for identifications based on post-indictment pre-trial lineups conducted in the absence of counsel. Wade and Gilbert, however, arguably left open the question of a defendant's right to an attorney during pre-indictment lineup procedures.

The point at which the pre-trial right to counsel attaches under federal law in identification procedures was clarified by the Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). There the Court, in a plurality opinion, held that the federal constitutional right to counsel does not attach until the accused has been indicted or formally charged with a criminal offense and, hence, does not apply to a pre-indictment lineup. This pre- and post-indictment distinction has been widely applied by federal and state courts. ⁵

The Supreme Court Alaska has in the past adopted the United States Supreme Court's Wade-Gilbert holdings in McCracken v. State, 521 P.2d 499, 501-04 (Alaska 1974), and Davis v. State, 499 P.2d 1025, 1032-33 (Alaska 1972), cert. granted, 410 U.S. 925, 93 S.Ct. 1392, 35 L.Ed.2d 586 (1973), rev'd on other grounds, 415 U.S. 308, ...