Hatcher v. State

Decision Date08 January 1981
Docket NumberNo. 179S21,179S21
Citation414 N.E.2d 561,275 Ind. 49
PartiesCarlton HATCHER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

James A. Neel, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury, of two counts of armed robbery and sentenced to imprisonment for two consecutive terms of ten (10) years each. We find it necessary to reverse the judgment because of impermissibly suggestive identification procedures employed by the State.

Two black males entered a restaurant during the early afternoon. By use of guns and threats, they took money belonging to the business entity from one employee, Miss Seybert, and personal funds from another employee, Mr. Doyle. Both employees saw the bandits during the episode.

Indianapolis Police Officer Gillespie conducted photographic displays on several occasions for Seybert and Doyle. Following one such occasion, Doyle selected a photograph of Defendant as portraying one of the perpetrators of the robberies. The record reveals that this was the only occasion on which Defendant's picture was displayed to the victims. Approximately one week later, Seybert and Doyle each selected the defendant and Johnny Jones in separate "lineups" arranged by the police and identified them as the robbers. The Defendant had been charged with the crimes at the time he was displayed in the "lineups." He was not provided with counsel for the proceedings, and the record does not disclose whether or not he had been previously advised of his right to such counsel.

Defendant filed a pre-trial motion to suppress identification testimony from Doyle and Seybert upon the grounds that they had identified him at police "lineup" proceedings conducted subsequent to his arrest for the offense and in the absence of his counsel. The motion was overruled. At trial, over timely objection, Doyle and Seybert were permitted to identify the Defendant as one of the persons who robbed them and also to testify that they had previously so identified the defendant at the aforementioned "lineups."

The Sixth Amendment right to counsel attached at or after the time that adversary judicial proceedings had been initiated against the accused. Kirby v. Illinois, (1972) 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417 (plurality opinion). In United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Kirby v. Illinois, supra, the United States Supreme Court held that the right to counsel encompasses the right to have an attorney present at a pre-trial "lineup" identification procedure conducted at or after the initiation of such criminal proceedings. In this State, the filing of an information or indictment begins the formal criminal process. Winston v. State, (1975) 263 Ind. 8, 11, 323 N.E.2d 228, 230. Therefore an accused is entitled to have counsel present at any "lineup" which is conducted subsequent to the filing of an information or indictment. Kirby v. Illinois, supra; United States v. Wade, supra; Winston v. State, supra. Thus, it is clear that Defendant had a Sixth Amendment right to have counsel present at the "lineup" conducted in this case.

Moreover, when police conduct an uncounseled "lineup" at a time when the defendant is entitled to counsel, the sanctions are clear. Evidence of a witness' identification of the accused at the "lineup" is per se inadmissible at trial. Gilbert v. California, (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Defendant specifically challenges only the admission of evidence of the "lineup" identification. However, the conduct of an illegal "lineup" calls into question the admissibility of the witness' in-court identification. United States v. Wade, supra. Thus, a witness' in-court identification testimony must also be suppressed unless the prosecution can establish by clear and convincing evidence that the in-court identification has an independent origin and is not the product of the illegal "lineup." Gilbert v. California, supra; United States v. Wade, supra; Morgan v. State, (1980) Ind., 400 N.E.2d 111, 113; Love v. State, (1977) 266 Ind. 577, 581, 365 N.E.2d 771, 773. We must first determine, then, whether the facts of this case reveal a denial of Defendant's Sixth Amendment right to counsel.

The State argues that Defendant waived his right to have an attorney present. Officer Gillespie informed him, six days in advance, that he would be placed in a "lineup." Gillespie also told him, at that time, that he had a right to have an attorney present. The Defendant, however, made no response to this information, and Gillespie did not discuss Hatcher's rights with him any further. Gillespie did not know at that time whether or not the defendant had counsel. Apparently, he did have counsel in an unrelated City Court matter, but the record does not disclose that an attorney had entered an appearance in this case. Neither does it disclose that Defendant did, in fact, have counsel in this case. The States argues, however, that Defendant's knowledge of the impending "lineup" and of his right to have an attorney present, together with his failure to have an attorney present effected a waiver of that right.

The Court in United States v. Wade, supra, did indicate that a Defendant may waive his right to have counsel present at the "lineup." After discussing the need for and the purpose of having counsel in attendance, the Court said: "Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver.' See Carnley v. Cochran, (1962) 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70." 388 U.S. at 237, 87 S.Ct. at 1937, 18 L.Ed.2d at 1163. However, neither the United States Supreme Court nor this Court has ever been required to determine the standards to be applied in resolving whether or not to invoke such a waiver.

Waiver of the right to counsel in other contexts has received extensive examination. Such a waiver must be shown to have been knowingly, voluntarily and intelligently made. Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. This showing must appear on the record. Id.; Russell v. State, (1978) 270 Ind. ---, 383 N.E.2d 309; Owen v. State, (1978) 269 Ind. 513, 381 N.E.2d 1235. Further, courts will indulge every reasonable presumption against a waiver. Johnson v. Zerbst, supra. In addition, the right to counsel does not depend on a request. Carnley v. Cochran, (1962) 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70, 76.

Cases decided subsequent to United States v. Wade and Johnson v. Zerbst clearly establish that these strict standards also apply to invocation of a waiver of the right to have counsel present at certain pre-trial proceedings. In Brewer v. Williams, (1977) 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, the United States Supreme Court discussed the question of waiver of the right to have counsel present during an interrogation. The Court explained that " * * * the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law * * * (is whether) * * * the State (can) prove 'an intentional relinquishment or abandonment of a known right or privilege.' " 430 U.S. at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439 (quoting Johnson v. Zerbst, supra ). The Court in Brewer v. Williams then pointed out that "(t)his strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pre-trial proceedings. Schneckloth v. Bustamonte, (1973) 412 U.S. 218, 238-40, 93 S.Ct. 2041, 2053-54, 36 L.Ed.2d 854, 869-70; United States v. Wade, (1967) 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149, 1163." Id., 97 S.Ct. at 1242, 51 L.Ed.2d at 440.

In Schneckloth v. Bustamonte, supra, the accused argued that a "consent" to a search under the Fourth Amendment should be evaluated by the same standards used to determine a "waiver" for Sixth Amendment purposes, under the doctrine of Johnson v. Zerbst, supra. In disposing of this argument, the Court explained that the waiver standards of Johnson v. Zerbst, " * * * were enunciated ... in the context of a fair criminal trial." 412 U.S. at 235, 93 S.Ct. at 2052, 36 L.Ed.2d at 867. The Court further stated:

"The requirement of a 'knowing' and 'intelligent' waiver was articulated in a case involving the validity of a defendant's decision to forego a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process." Id. at 236, 92 S.Ct. at 2052, 36 L.Ed.2d at 868.

"Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." Id. at 237, 92 S.Ct. at 2053, 36 L.Ed.2d at 868.

"The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a 'known' right. But the 'trial' guarantees that have been applied to the 'pretrial' stage of the criminal process are similarly designed to protect the fairness of the trial itself.

"Hence, in United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Court held 'that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth (and Fourteenth) Amendment right to counsel ...' Id. at 272, 87 S.Ct. at 1956, ...

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