McLean v. People

• Decision Date: 10 August 1970
• Docket Number: No. 23399,23399
• Citation: 172 Colo. 338,473 P.2d 715
• Parties: John C. McLEAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 715

473 P.2d 715

172 Colo. 338

John C. McLEAN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23399.

Supreme Court of Colorado, In Department.

Aug. 10, 1970.

Morgan Smith, Public Defender, Brighton, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Aurel M. Kelly, Asst. Attys. Gen., Denver, for defendant in error.

PRINGLE, Justice.

John C. McLean, the defendant, was charged with simple robbery and convicted by a jury. He alleges as error (1) the failure of the court to rule that the incourt identification of him by the victim of the robbery was tainted by an unduly suggestive photographic identification, and the court's refusal to grant him a hearing ourside the presence of the jury to determine whether his identification by two other witnesses was similarly tainted, (2) the refusal of the court to give a cautionary instruction on the general unreliability of eyewitness testimony, (3) the court's denial of his motions for a mistrial, and (4) the giving of an instruction over his objection on the defendant's right to remain silent. We find no error in the trial court, and we affirm the judgment.

I.

At the beginning of the trial, the defendant moved for a hearing outside the presence of the jury to determine whether the identification of the defendant by certain witnesses for the People would be tainted by a photographic identification conducted by police officers prior to trail allegedly in violation of the defendant's right to due process of law. A hearing was held as to the ideitification of the defendant by Bernstein, the victim of the robbery and the only eyewitness to the actual crime.

It developed during the hearing that during the course of their investigation and before any arrest had been made, police officers had shown Bernstein a number of pictures with the hope of coming up with a suspect. Among the pictures shown to him was a picture of the defendant containing in the lower right hand corner the words 'Colorado State Penitentiary' followed by a general description of the defendant. Bernstein was able to identify the man in the photograph as being his assailant.

The defendant argued before the trial court and argues here that the 'mug shot' of the defendant shown to Bernstein singled him out for suspicion by identifying him as a criminal and was, therefore, so unduly suggestive as to create a substantial likelihood of irreparable misidentification at the trial. He argues that the district attorney failed to prove by clear and convincing evidence that an in-court identification of the defendant by Bernstein would not be tainted by the improper photographic identification. At the close of the hearing the trial judge denied the defendant's motion as to Bernstein while reserving his decision on other witnesses.

Although this case was tried after the decision of the Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the rule in that case giving the accused the right to be represented by counsel during a lineup identification is clearly inapplicable to the present case since the defendant was not a suspect at the time his picture was shown to Bernstein.

Instead of relying on the right to counsel embodied in Wade, supra, the defendant relies on his right to due process of law as set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. This court pointed out in Neighbors v. People, Colo., 467 P.2d 804, that the basic concern of the court under the test of due process found in Stovall, supra, is whether the procedure followed in conducting the identification may have, under all circumstances of the case, resulted in a misidentification of the defendant at trial.

While misidentification at trial is the primary concern of the court when applying the due process test of Stovall, supra, the Supreme Court has given weight to the expediency and necessity of the identification procedure. Thus in Stovall itself a one to one confrontation between the victim and the defendant was upheld under the test of due process as being the only feasible procedure for the police to follow under the circumstances. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the court upheld a photographic identification in which snapshots of the suspects were shown to the witnesses partly on the basis that a serious crime had been committed, and it was essential for police officers to know if their investigation was on the right track.

There are compelling reasons for allowing the police to conduct photographic identifications. As the Supreme Court stated in Simmons, supra:

'Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. * * *' 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

The court went on to hold that a conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

In the present case, a robbery had occurred. The police did not have a suspect, so pictures in the police files were shown to witnesses. There is nothing impermissible about that police practice. While the words 'Colorado State Penitentiary' appearing on the photograph indicate that the defendant has a criminal record, the same inference is carried by any picture contained in police files. The argument of the defendant, taken to its logical extreme, would preclude the use by police of any photographs in their files and would effectively eliminate photographic identification as a means of discovering a suspect. We will not thus thwart an effective and permissible police investigative procedure.

The defendant argues that he is in a peculiar and difficult position in this case because, at the trial, he could not bring the attention of the jury to the suggestiveness of the photographic identification on cross-examination without disclosing his prior criminal record. But we have never held that a police procedure is constitutionally impermissible solely because it places a defendant in a position in which he must make a hard choice at trial in defending the charge against him. Under the circumstances of this case, there was very little that the officers could do to more carefully protect the rights of a particular individual. At the state of investigation in question here, the need for a rapid identification of the robber outweighed any suggestiveness inherent in police file photographs.

Two other witnesses, Cy Lenig and Dale Zimmerman, testified for the People and identified the defendant as being a customer in Bernstein's bar on the night of the robbery. The defendant requested a hearing outside the presence of the jury to determine whether they had participated in a photographic identification similar to that made by Bernstein. The trial judge denied the request on the basis that the witnesses were not eyewitnesses to the crime itself, but were merely collaborating witnesses to times prior to the commission of the crime.

The trial judge was in error in making a distinction between eyewitnesses to the actual crime and eyewitnesses to events placing the defendant in the victim's bar on the night of the crime. While it is ture that in Stovall v. Denno, Supra, and Simmons v. United States, Supra, the Supreme...