Neighbors v. People, 23872
| Decision Date | 06 April 1970 |
| Docket Number | No. 23872,23872 |
| Citation | 171 Colo. 349,467 P.2d 804 |
| Parties | Clifford Richard NEIGHBORS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
William J. Chisholm, Public Defender, City and County of Denver, Rollie R. Rogers, State Public Defender, Joseph R. Quinn, Deputy State Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.
The defendant, Clifford R. Neighbors, was convicted by a jury of aggravated robbery, and was sentenced to the Colorado State Penitentiary for a period from thirty-five years to life. His conviction was affirmed by this Court on writ of error. Neighbors v. People, 161 Colo. 587, 423 P.2d 838. He subsequently filed a motion for vacation of the judgment under Colo.R.Crim.P. 35(b). A hearing was held and the motion was denied. The defendant brings this writ of error from that judgment.
The defendant contends that it was error for the trial judge to find (1) that a lineup in which defendant participated was not so unduly suggestive as to taint the in-court identification and thereby deprive the defendant of due process of law; and (2) that certain statements made by the defendant to a police detective which were admitted at trial were not involuntary. We find no error, and we affirm the judgment of the trial court denying the defendant's motion under Rule 35(b).
On August 30, 1963 at 1:30 P.M. two men held up a Miller's Super Market in Denver. A third man was observed by witnesses within the store during the robbery. This third party was observed leaving the store with the robbers and was observed getting into a car with the other two men. He was identified as wearing an orange or rust colored shirt and a gray felt hat. Approximately one hour after the robbery, the witnesses were taken to the police station in order to attend a lineup identification. At the lineup two of the witnesses picked out the defendant as being the third man in the robbery. One witness further identified the car in which the defendant was driving at the time of his arrest as the car in which the three robbers were seen to escape by pointing out the car from a large number of cars parked in a police lot. The hat the defendant was wearing at the time of his arrest and a shirt found in the vehicle he was driving were identified by witnesses at the trial as being the hat and shirt worn by the third robber. These witnesses identified the defendant in court as the third robber.
The testimony at the trial showed that at a lineup identification conducted at the police station there were four persons in the lineup, all white, and approximately the same in size and age. The defendant appeared in the lineup without a shirt but wearing a blue coat. He was the only man in the lineup with a hat and during the course of the lineup proceeding he was asked to put the hat on his head. Other members of the lineup were not asked to try the hat on.
The defendant argues that the lineup identification of the defendant was so unnecessarily suggestive and conducive to mistaken identification and so heavily tainted the in-court identification of the defendant that it denied the defendant due process of law under the Fourteenth Amendment to the United States Constitution. We do not agree.
In so arguing, the defendant is relying on the Supreme Court case of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, wherein it was decided that a confrontation might be so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant is denied due process of law. In Stovall, the Supreme Court clearly pointed out that it was the totality of the circumstances surrounding the identification in each case which would determine whether the lineup identification required reversal of the conviction.
The defendant calls our attention to the circumstances surrounding the instant lineup proceeding which he contends were unnecessarily suggestive. He points out that the defendant was the only man in the lineup who did not have a shirt on and was the only man required to wear the felt hat which was in his possession.
However, suggestiveness of the lineup proceeding is not a sufficient circumstance by itself to lead us to declare that there has been a violation of the defendant's constitutional right to due process of law. That suggestiveness must, as we have said, so taint the in-court identification as to make it unreliable as a matter of law. As was accurately pointed out by counsel during oral argument, every identification must be to some extent suggestive. It has long been thought to be the province of the jury to determine what weight to attach to identification testimony and procedure. As the Supreme Court noted in Stovall v. Denno, Supra, 'The overwhelming majority of American courts have always treated the evidence question (identification) not as one of admissibility but as one of credibility for the jury.'
While the Supreme Court decisions in 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, do not apply to the present case because they have not been given retroactive application, they are illustrative of the present point. In Wade and Gilbert the Supreme Court, viewing with alarm the potential for suggestiveness and unfairness in pretrial identifications, took note that the defendant may be prejudiced by his inability to get the circumstances of the identification before the jury.
United States v. Wade, 388 U.S. at 231--232 87 S.Ct. at 1934--1935, 18 L.Ed.2d at 1160.
The subsequent ruling by the Supreme Court establishing that the criminal defendant has a right to the presence of counsel during a pretrial identification was directed toward providing the defendant with effective means for cross-examination so that the circumstances of the confrontation could be aired before the jury and the credibility of the identification testimony tested.
In our opinion, suggestiveness, at least under some circumstances, may properly be left as a consideration for...
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