Campbell v. State, 4820

• Decision Date: 15 January 1979
• Docket Number: No. 4820,4820
• Citation: 589 P.2d 358
• Parties: Richard N. CAMPBELL, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 358

589 P.2d 358

Richard N. CAMPBELL, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4820.

Supreme Court of Wyoming.

Jan. 15, 1979.

Frank R. Chapman, Public Defender for Laramie County, and W. Michael Kleppinger, Wyoming Defender Aid Program, Casper, signed the brief and Mr. Kleppinger appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., signed the brief for appellee. Mr. Johnson appeared in oral argument on behalf of the appellee.

Before RAPER, C. J., and GUTHRIE, ^* McCLINTOCK, THOMAS and ROSE, JJ.

RAPER, Chief Justice.

The defendant-appellant was charged with aggravated robbery in violation of § 6-66, W.S. 1957, ¹ (§ 6-4-402, W.S. 1977), found guilty by a jury and sentenced to a penitentiary term of not less than eight nor more than fifteen years. On appeal, defendant defines the issues to be:

"1. Whether the Trial Court's refusal to suppress the in-court identification of the Defendant as the perpetrator of the robbery by the victim deprived the Appellant of due process of law.

"2. Whether the Trial Court committed plain error in refusing to instruct the jury as to its consideration of identification testimony."

We will affirm.

Early in the morning hours, Woody's Truck Stop was robbed. The testimony was that after the robber had left Woody's Truck Stop, the victim-attendant, Hughes, got on the company C.B. and called for help. The call was received at the police station and an alert went out to patrolling officers. Officer Brent drove to Woody's Truck Stop where the attendant pointed in the direction of 5th and Morrie. According to Brent, he took off immediately without stopping to interview the attendant. ² On the way to 5th and Morrie, not far away, he broadcasted by radio his destination to two other patrol cars, both of which converged on the vicinity. Officer Brent testified that while he was approaching the area, two or three blocks away, he saw a vehicle leave the curb at high speed, so took off in pursuit. Though there is no testimony that any witness saw the defendant exit the vehicle, the circumstances indicate that he did so because Officer Markland spotted him in flight in the area, chased after and apprehended him.

In the meantime, Officer Kolkman came up to assist. Officer Brent then went back to talk to the attendant where he was interviewed. Brent took into evidence a white paper sack. Other officers appeared to make a crime scene investigation. Brent took Hughes to the police station to take a statement.

Markland, the officer while engaged in the chase, saw the defendant take off a green jacket and throw it on the ground. He assisted in the search of the defendant for weapons. He identified the defendant in the courtroom as the person apprehended and, during the course of that identification, noted that the defendant, at the time of trial, was attired in a wine colored leisure suit and had a mustache. He recovered the green jacket and searched the vehicle. He observed a quantity of paper currency blowing around in the wind and a black wig laying on the ground. In the vehicle, on the seat, was a pistol along with more loose currency. The total amount of currency recovered was $403.00. Later on, an additional $30.00 was taken from the defendant's person.

Kolkman, one of the three pursuing officers, identified defendant as wearing a T-shirt, dark pants, medium length hair and having a mustache at the time of apprehension. His testimony was that the defendant was apprehended about three blocks north of Woody's. He testified that the money blowing around was picked up. He also testified that he saw a black and gray checkered hat on the floor of the vehicle and the wig. A fourth officer investigated the crime scene, Woody's Truck Stop, where he found a bullet hole in a wooden counter shelf and assisted in prying out the bullet.

A fifth officer testified that he picked up a .22 caliber short cartridge case from the floor of the truck stop. The State's chief forensic scientist and director of the crime laboratory positively identified the cartridge case by use of a comparison scope, matching its firing pin marks with those on the cases of cartridges test-fired from the pistol recovered by Officer Markland from the vehicle. He could not identify the bullet other than saying that it was also .22 caliber, but pointed out it was too badly battered to identify as being a bullet fired from the recovered firearm.

The filling station attendant, Hughes, was the last witness to testify for the State. In the courtroom he identified the defendant as being the one who had held him up at Woody's Truck Stop by pointing a pistol in his face. He particularly recalled what the defendant was wearing. He testified further that the robber was carrying a white paper bag and directed Hughes to hand over all of the money from the cash register a quantity of paper currency which Hughes did, after which the defendant told Hughes to lay on the floor. After the robbery, he made an "inventory" and found there to be $403.00 missing. He testified that, before departing, the robber shot off the pistol a foot or so over the top of his head and took off. After lying there for a few minutes, he got on the company's C.B. and called for help. Hughes testified that, at the time of the robbery, the defendant had a mustache was wearing a green coat, had long stringy hair (the wig) and was wearing a dark hat. When handed the green jacket in the courtroom, he recalled the dark spot on the shoulder. The defendant was asked to stand. Hughes said the robber was the same height and weight.

At the preliminary hearing, in the presence of Hughes, the defendant was escorted into the courtroom of the Justice of the Peace in jail clothing and handcuffed. Defendant objected to his attire. The interrogation of Hughes by the county attorney got hardly past its introductory stage. He had described his duties at Woody's Truck Stop as night attendant. A few minutes before 2:00 a. m., a "guy" came through the door, raised up a gun, put a sack on the counter and said "hand it over". He was wearing dark colored headgear, like a skullcap, had long-black-stringy hair, was wearing a rain jacket, had dark pants and had a mustache. He was asked if he "might" recognize the person if he saw him again. Hughes answered "yes". Counsel then queried: "Mr. Hughes, from your independent recollection and trying to recall what happened that evening, would you say the Defendant was that person? After some interchange between counsel and further questions, Hughes answered "yes, he's in the room; he's sitting by his attorney. " That is as far as the preliminary progressed when it was aborted by the Justice of the Peace. At that point, the presiding Justice of the Peace became indignant over defendant's manner of dress for the occasion, suspended the hearing as a "farce" and disqualified himself from participation in any further preliminary procedures. The preliminary hearing was later reconvened before another Justice of the Peace, at which the defendant was bound over to the district court. No transcript of testimony received at the last preliminary hearing appears in the record.

Before commencement of trial, the defendant moved to suppress any in-court identification of defendant by Hughes on the ground that the circumstances of defendant's appearance at the first preliminary hearing so tainted identification by Hughes that defendant was denied due process. The trial judge denied the motion. The defendant relies strongly on statements made in Frasier v. State, 1974, 262 Ind. 59, 312 N.E.2d 77, cert. den. 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 686, and Estelle v. Williams, 1976, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. We have no disagreement with either case.

In Frasier the court relied upon Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which recognized a rule already in existence that the inquiry is "whether * * * the confrontation * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he (the defendant) was denied of due process of law." 388 U.S. at 301-302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206. (Bracketed material supplied.) ³ The Frasier court concluded the test to be whether the witness was, in fact, influenced by the totality of the circumstances in a manner indicating a very substantial likelihood of misidentification. The case held on the facts before it there to be no substantial likelihood of misidentification. We agree with the "totality" test and find it applicable but not with the same result urged by defendant.

Estelle deals only with the problem of the appearance of a defendant in prison garb At a jury trial and not with his appearance at a preliminary hearing. Nor does Estelle hold that it is inherently error for a defendant to wear prison garb during trial. The case does not concern identification and holds only that, in the absence of objection, the fact that defendant appeared in identifiable prison clothing was not error. We do not disagree with the principles of Estelle but find them inapplicable to the case before us, in that we are concerned with a preliminary hearing and an identification issue.

Following the Gilbert-Wade-Stovall triad in Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Foster v. California, 1969, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Coleman v. Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Neil v. Biggers, 1972, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; and Manson v. Brathwaite, 1977, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, in that order, the Supreme Court has struggled with the scope of due process protection against the admission of evidence derived from suggestive identification procedures.

In this court, the issue of unnecessarily...