Edmisten v. People, 24244

• Decision Date: 01 November 1971
• Docket Number: No. 24244,24244
• Citation: 176 Colo. 262,490 P.2d 58
• Parties: Douglas Duane EDMISTEN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 58

490 P.2d 58

176 Colo. 262

Douglas Duane EDMISTEN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 24244.

Supreme Court of Colorado, En Banc.

Nov. 1, 1971.

Rehearing Denied Nov. 15, 1971.

Daniel B. Mohler, Colorado Springs, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for defendant in error.

MITCHEL B. JOHNS, District Judge. ^*

The plaintiff in error, Douglas Duane Edmisten, will hereinafter be referred to as the defendant.

On November 22, 1968, defendant was charged by information with aggravated robbery of one Steven Burns Colby on November 9, 1968. On December 12, 1968, the information was amended by adding counts alleging that the defendant had been convicted twice previously of a felony. These additional counts were filed under the Colorado Habitual Criminal Statute, C.R.S. 1963, 39--13--1.

The evidence adduced at the trial showed that the victim named in the information, Steven Burns Colby, an 18-year-old youth, was working alone at the service station at the time of the robbery on November 9, 1968. At approximately 7:30 p.m., a man on foot approached him and asked to buy a can of gas for his car, which had run out of gas down the road. Colby testified that the man was about six feet tall, wearing a gray three-quarter length coat, gray pants, a white baseball-type cap with earmuffs over his ears, with reddish sideburns and a very prominent mustache, reddish in color, and possibly a red plaid shirt. Colby testified that when he first saw the man in question, the first thing he noticed was the man's face, mustache and nose.

Colby further testified that he filled up the gas can and the two entered the office of the station, where Colby requested a three-dollar deposit for the gas and the can. As Colby proceeded to open the cash register, the man pulled out a pistol and told Colby to put the money in a box he was holding. The pistol then discharged. A slug and empty cartridge were found by the police in the immediate vicinity of the cash register. The police identified the gun used in the robbery as a .22 caliber pistol. The robber took approximately $133 from the cash register, forced Colby to walk away from the station and then fled.

The evidence further disclosed that the police officer summoned to the scene established the robbery at 7:50 p.m., that he arrived at the filling station at approximately 8:00 p.m., and that Colby was very nervous and very shaken, but that he was coherent; also, that Colby was near-sighted and was not wearing glasses on the night in question.

The People's evidence showed that a person, subsequently identified as the defendant attempted to rob, at gunpoint, Ben's Sporting Goods, owned by Kenneth Benjamin. The testimony of Benjamin and another eyewitness, Albert Montgomery, showed that at approximately 6:00 p.m. on November 9, 1968, a man drove a tan Oldsmobile through the parking lot in front of the sporting goods store and then out of the lot. Shortly thereafter the man returned on foot to the store, where he encountered Benjamin closing the store. The man confronted Benjamin with a pistol and demanded that Benjamin reopen the store. Benjamin refused and terminated the confrontation by walking into a nearby drug store. Witness Montgomery described the man as wearing a mustache, a three-quarter length topcoat, and a cap with a bill.

On November 12, 1968, a line-up was conducted relating to possible identification of suspects in the service station and the sporting goods store. The defendant was not placed in the line-up; however, present and designated as man number three was a Lloyd Anthony Brinkman, who was identified as a suspect by Colby. Benjamin, who also viewed the line-up, told a police officer of the Colorado Springs Police Department that he picked number three in the line-up, '* * * because of his features. They were similar, mustache, height, weight, were all identical to the party that had stuck him up.' He did not, however, identify anyone in that line-up.

Prior to the line-up of November 12, 1968, Colby was shown a color picture of Brinkman, at which time he stated, 'That is the man. I am almost sure that is the one. I would like to see him.' On November 21, 1968, a second line-up was held and the defendant was placed in such line-up. Benjamin and Colby each identified the defendant. Montgomery also identified the defendant in the line-up, and stated that the defendant was identical or similar to the person he saw in the shopping center.

In the November 21, 1968, line-up, five persons were placed for viewing; three of them wore false mustaches, leaving only the defendant and another with a natural mustache. Also, the participants, other than the defendant, appeared cleaner, neater and trimmer. During the line-up proceedings an attorney was present and represented the defendant. A photograph of the line-up was later introduced in evidence.

In that line-up the attorney, upon order of court, repaired to the place where the line-up was being conducted to represent the defendant. At that time he requested and was allowed to confer with two of the persons who were placed for viewing, and also was allowed to speak to and discuss the line-up with the defendant. He also requested that the defendant be allowed to shave, because the other participants were clean-shaven. The defendant was furnished an electric razor and he shaved, but retained his mustache. In addition, his appointed counsel requested that the defendant be allowed to comb his hair, and that since the defendant had on a plaid jacket, that the other members be required to wear jackets. When these requests were made, counsel made no objection at the time the line-up was conducted, nor did he make any comments as to the manner in which the line-up was conducted. The witnesses to the line-up were not allowed to confer with each other and were given pen and pencil to write their respective opinions concerning whether each witness could recognize tentatively or positively, according to the number assigned to each individual in the line-up, and this was done individually.

An In camera hearing was held on defendant's motion to suppress the in-court identification as being tainted. The facts concerning the line-ups, as aforestated, were fully developed. The trial court denied such motion and specifically found: 'There was nothing unduly suggestive in this case. In fact, from the witnesses called by the defendant himself, it was the features and face that was the strong identifying point in this case. In fact, the Court has never heard a stronger case for the upholding of the constitutionality of the line-up.'

At the trial, before the jury, the matters relating to the two line-ups were again detailed for the jury, including the photograph of the November 21, 1968 line-up, which showed the appearance of the participants and particularly the mustaches worn by each.

The defendant was convicted of both the aggravated robbery charge as well as the habitual criminal count. The appeal followed. The defendant assigned several grounds for reversal; however, since only two need be considered for disposition of this review, the other assigned errors need not be discussed.

I.

THE LINE-UP--Was the identification of the defendant tainted by the events which led up to the in-court identification? Counsel for defendant contends in his brief:

'* * * (A)ny in-court identification of the defendant, whether it was based on the lineup or not, should have been suppressed because it was tainted by the unconstitutional lineup resulting in identification without sufficient independent origin. Said identifications were achieved by exploitation of the illegal lineup rather than by means sufficiently distinguishable to be purged of the primary taint. Courtroom identification is not admissible at all unless the state can establish by clear or convincing proof that the testimony was not the fruit of the earlier identification. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. 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).'

Without commenting on the correctness of the defendant's postulation, this court is of the opinion that the cited cases and the facts of the instant case do not support the defendant's position. Stovall concerned itself with the retrospectivity of Wade and whether the totality of the circumstances concerning the conduct of the line-up were so unnecessarily suggestive and conducive as to lead to irreparable mistaken identification.

The touchstone of Wade and Gilbert is the absence of counsel at one critical stage of the prosecution, namely, the line-up. The court proscribed the use of suggestive pretrial line-ups and premised its opinion that in addition to an accused's guaranteed right to the presence of counsel at trial, such right is available to him at any stage of the prosecution, formal or informal, where the absence of counsel might derogate from his right to a fair trial. Wade, supra. The court's rationale was twofold: (1) the presence of a defense-oriented professional might serve to prevent the use of prejudicial identification measures, and (2) the absence of counsel at a line-up might deprive an accused of the ability effectively to reconstruct at trial any unfairness that occurred at the line-up and thus deprive him of his only opportunity meaningfully to attack the credibility of the witnesses' courtroom identification. The court recognized that there '* * * is grave potential for prejudice, intentional or not, in the pretrial lineup * * *' and the necessity of counsel for a meaningful confrontation at trial. Wade, supra, 388 U.S. 236--237, 87 S.Ct. 1937.

Impressing Wade and Gilbert on the totality of the facts and...