Burton v. State

• Decision Date: 05 March 1968
• Docket Number: No. 5357,5357
• Citation: 84 Nev. 191,437 P.2d 861
• Parties: John Evans BURTON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 861

437 P.2d 861

84 Nev. 191

John Evans BURTON, Appellant, v. The STATE of Nevada, Respondent.

No. 5357.

Supreme Court of Nevada.

March 5, 1968.

Rehearing Denied March 26, 1968.

Richard H. Bryan, Public Defender and Robert N. Peccole, Chief Deputy Public Defender, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and George Spizzirri, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

COLLINS, Justice:

On November 28, 1966, Ruth Johnson, the cashier at the J & J Market in Las Vegas, Nevada, called the police and reported that the market had just been robbed by three Negro males in their mid-20's. When officers arrived on the scene, she and Lawrence Thornton, who had also been robbed of his wallet, told the officers that three Negroes between 20--30 years of age had robbed them and gave descriptions of those persons to the police. A witness who was outside the market at the time of the robbery stated he saw four Negro males in an auto drive up to the market; that three of them left the car, went inside, and hurriedly came out a short time later; that the engine was running all the time the three were inside the store; that this overall conduct aroused his suspicion, causing him to take down the license number of the vehicle.

The above information was broadcast over the police radio and approximately 15 minutes later a car bearing the license number in question was found at an apartment house at 1500 Helen Street. Upon questioning people outside the building, the officers learned that four males had driven up in the car a short time before and had entered the building.

In response to a knock on one of the doors in the apartment building, Dennis Blood answered. The officers placed him under arrest for the robbery when they learned the car in question belonged to him. They immediately entered the apartment and found three other Negro males, among them the defendant Burton, a person named Himmage and one named Walker. They were also placed under arrest for robbery.

Burton requested a separate trial on the grounds that 1) evidence inadmissible as to him would be used against his co-defendants; 2) the defendants wished to rely on different alibis; 3) Himmage had a prior felony record--evidence admissible as to Himmage but potentially prejudicial and inadmissible as to himself. The motion was granted.

At appellant Burton's separate trial, the following evidence was introduced: (1) a group photograph of the persons involved in the police line-up; (2) identification by the cashier, Mrs. Johnson, of co-defendant Himmage from the above-mentioned photograph; (3) testimony of the witness Thornton, including an identification by him of Burton, Blood, and Himmage from the photograph; (4) a latent fingerprint of Himmage taken from the place of the robbery; (5) testimony of the arresting officers concerning the results of their search of the apartment. The jury found appellant guilty of two counts of robbery and this appeal followed.

1. Appellant contends that the photograph showing the participants involved in the police line-up and testimony concerning the result of that line-up were improperly admitted into evidence due to the impropriety of (1) the foundation laid for the photograph, and (2) the line-up itself.

The foundation is questioned because the witness Thornton stated, in response to a preliminary question, that the participants were in a different order in the actual line-up than in the photograph, and therefore the photograph was not 'a fair, correct and true representation of the scene it purported to represent.' State v. Gambetta, 66 Nev. 317, 208 P.2d 1059 (1949). However, the record shows that the photograph was admitted not as a correct representation of the line-up ¹ but as a true and accurate depiction of the six individuals involved in the line-up that day. The foundation thus laid for the photograph was proper.

Appellant next contends that the line-up itself was constitutionally infirm because he did not have counsel present at the time and because four of six participants in the line-up were suspects in this particular case.

Since the proceedings in this case were nearly six months prior to the announcement of the procedural safeguards set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the absence of counsel, in itself, is not reversible error. Hummel v. Sheriff, 83 Nev. ---, 432 P.2d 330 (1967).

We therefore turn to the issue of the fairness of the line-up itself, a complaint which may be examined regardless of the date of the proceedings. Stovall v. Denno, supra; Calbert v. State, 84 Nev. ---, 437 P.2d 628. Appellant contends that because four of the six participants in the line-up were suspects in this case, the line-up lacked the inherent fairness necessary to satisfy the requirement of due process. To illustrate his point he cites the facts that the cashier, Mrs. Johnson, identified Himmage and Walker at the line-up Himmage and Blood at the preliminary hearing, and only Himmage at the trial. However, these inconsistencies were all brought to the attention of the jury by defense counsel whose exclusive function it was to determine credibility of the witness and weigh her testimony. See People v. Diaz, Cal., 58 Cal.Rptr. 729, 427 P.2d 505 (1967); State v. Villegas,101 Ariz. 465, 420 P.2d 940 (1966). Appellant urges no other grounds in his claim of unfairness, such as substantial variances in the height, weight, or age of the participants in the line-up. We conclude from examining the totality of the circumstances, pursuant to Stovall, that there was no inherent unfairness.

2. Appellant's next assignment of error attacks evidence presented by the prosecution identifying Himmage as being a participant in the crime. Evidence to be admissible must be relevant to the case at bar. The state's position is that the evidence placing Himmage at the scene of the crime is highly relevant in the trial of the appellant Burton. We agree. The relevancy arises out of the fact that Himmage and the appellant were found together shortly after the robbery. The car with the previously identified license...