Martinez v. State

• Decision Date: 08 January 1969
• Docket Number: No. 41766,41766
• Citation: 437 S.W.2d 842
• Parties: Reynaldo Cantu MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 842

437 S.W.2d 842

Reynaldo Cantu MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 41766.

Court of Criminal Appeals of Texas.

Jan. 8, 1969.

George W. Storter, Jaun E. Gavito, Brownsville, for appellant.

F. T. Graham, Dist. Atty., Brownsville, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is robbery by assault; the punishment, assessed by the court after a jury verdict of guilty, 20 years confinement in the Texas Department of Corrections.

This appeal presents the question of the admissibility of an in-court identification following a police lineup identification where the accused was without the benefit of counsel.

The State's evidence reflects that on January 20, 1968, Zelma Voorhes, 59 years of age, lived alone in the City of Harlingen. At approximately 7 p.m. that day she arrived home from work as a saleslady in a local variety store. Shortly thereafter she answered a knock at her front door and observed a Latin male, whom she later identified as the appellant, who inquired about a lady who had previously lived at the address. During the conversation the living room light afforded Mrs. Voorhes an ample opportunity to observe the caller's facial features, clothing, etc. Being unable to convince the man she was not the lady he sought and did not know the whereabouts of such lady's son, Mrs. Voorhes terminated the conversation by closing the door after which she heard his departing footsteps.

At approximately 9:30 p.m. Mrs. Voorhes, hearing another knock and thinking it was her paper boy, opened the door and again observed the appellant who pushed his way into the house and threatened Mrs. Voorhes with a knife and knocked off her glasses. Thereafter he forced her into the bedroom where he robbed her of $46.00 and then raped her. Subsequently, thinking the appellant had departed, Mrs. Voorhes arose from the bed to dress when she was again confronted by appellant, who repeated his earlier threat to kill her if she moved for 10 minutes. Thereafter the appellant attempted to dismantle or disconnect the telephone and left. Finding the telephone still in operating condition, Mrs. Voorhes called her son-in-law and then the police.

Appellant did not testify and called only one witness, a police officer, in an attempt to show a variance between Mrs. Voorhes' trial description of the intruder and the description given on the night in question. ¹

In his first ground of error appellant contends the trial court erred in overruling his motion for mistrial made after the prosecutrix testified she had identified him in a police lineup, which was conducted in absence of counsel and without a showing of waiver of counsel.

In his second ground of error appellant contends the trial court erred in admitting the in-court identification of him by the prosecutrix 'on grounds that the State failed to show no taint of illegality between the police lineup and the in-court identification.' For both grounds of error he cites and relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

The record reflects that in his opening statement to the jury (Article 36.01(3) Vernon's Ann.C.C.P.) the prosecutor stated that the State expected to prove that the prosecutrix had identified the appellant at a police lineup less than 2 days after the alleged offense. To such remarks no objection was addressed, nor was any motion in limine or to suppress made. After the prosecutrix had detailed the alleged offense without making an identification of her assailant, the direct examination reflects the following:

'Q. All right. Then on Monday, January the 22nd, what, if anything, occurred in which you participated with regard to this matter?

'A. They called me from the police station and told me they had a man in custody.

'Q. About what time was this?

'A. Oh, it must have been around 3:00.

'Q. In the afternoon?

'A. Yes, sir.

'Q. And in response to that call what did you do?

'A. My daughter and son-in-law took me to the police station.

'Q. All right. Tell us what happened there.

'A. And I was in a room with glass that I could see through but they told me that the people in the other room could not see through.

'Q. A one-way mirror?

'A. Yes, sir.

'Q. All right. And--Excuse me just a moment. Was anyone in the room with you?

'A. Yes. Mr. Littleton was with me.

'Q. Officer Littleton?

'A. Officer Littleton. And my son-in-law was in the room but he stayed back.

'Q. All right.

'A. And I went up close to the glass and they marched three men in on the other side and lined them up and had them turn around so I could get a real good look at them.

'Q. All right. Were these men Anglos, or Latins, or both?

'A. They were Latins.

'Q. All right.

'A. And I told them that I was positive that the man in the center was the boy but I did want to hear him speak. I wanted him to say, 'If you scream I'll run this knife clear through you,' just like he'd said it to me the night before.

'Q. And did they do that?

'A. They did that. All three of them repeated it. And when this one that was in the center repeated it I told them, 'That is the man."

'MR. GAVITO: Excuse me, Mrs. Voorhes, if you please.

We're going to object to any evidence concerning an identification made at a police lineup on the ground that it was conducted in the absence of counsel, in violation of the defendant's constitutional rights, under the Sixth Amendment made applicable to the States by virtue of the due process clause of the Fourteenth Amendment of the Constitution of the United States and for which we cite Gideon vs. Wainwright as authority.

'MR. ELLIS: We submit, Your Honor, that the objection comes too tardy, the witness having already testified and counsel was well aware of what the witness was about to testify to and interposed no objection prior to this testimony.

'THE COURT: Well, I'm going to sustain the objection.

'MR. GAVITO: If the Court please, in view of that, we ask that that testimony be stricken from the record and the Jury instructed not to consider it for any purpose whatsoever. And, further, we are of the opinion that such testimony cannot be cured--that is, the error cannot be cured by mere instructions from the Court not to consider it. We think it is highly prejudicial and inflammatory, and we ask for a mistrial.

'THE COURT: I do instruct the Jury not to consider this identification in the police lineup testimony for any purpose in its deliberations, and I overrule the motion for mistrial.

'MR. GAVITO: Note our exception, please.

'MR. ELLIS: In that connection, Your Honor, I'd like to point out to the Court, which the Court well knows, of course, we cannot show everything by one witness and that we'll attempt to connect this testimony up at a later time with a later witness, at which time, if we do connect it up, we'd like to reoffer it, Your Honor.

'THE COURT: We'll cross that bridge when we get to it.

'MR. ELLIS: Yes, sir.'

Subsequently the prosecutrix made an in-court identification of the appellant as her assailant only after which the appellant objected to such identification on the grounds set forth in his second ground of error.

Wade and Gilbert, cited by appellant, were fashioned to deter law enforcement authorities from exhibiting an accused to witnesses prior to trial for identification purposes without notice to and in the absence of counsel absent an intelligent waiver by the accused.

These cases clearly hold that a criminal suspect cannot be subjected to a pretrial identification process in the absence of counsel without violating the Sixth Amendment. If he is, the prosecution may not support or buttress a later in-court identification of the witness by any reference to the previous identification. Still further, the in-court identification is not admissible at all unless the prosecution can establish by clear and convincing proof that the testimony is not the fruit of the earlier identification made in the absence of the accused's counsel. See also Pearson v. United States, (5th Cir.) 389 F.2d 684.

These cases do not mean that if a lineup, showup or pretrial identification process is properly conducted in presence of counsel or after an intelligent waiver thereof, such identification cannot be used as it has in the past. They do mean, however, that once the pretrial identification procedure is shown to be impermissible and improper it cannot be used in place of an in-court identification or to bolster the same and is excludable per se. Still further, they mean that any subsequent incourt identification, though not per se excludable, is not to be received into evidence without first determining that it was not tainted by the illegal lineup or pretrial identification procedure but was of independent origin. Gilbert v. California, 388 U.S. at p. 272, 87 S.Ct. at p. 1956.

In determining whether the in-court identification is of an independent origin or source, the Court in Wade said, 'We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (455):

"(W)hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959).' See also Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, 386.

The Supreme Court did suggest guiding criteria for the application of this test. For example: (1) prior opportunity of the witness to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup description and the actual appearance of the accused; (3) any identification prior to the lineup of another person; (4) the identification by picture prior...