People v. Bisogni, Cr. 14528

• Decision Date: 22 April 1971
• Docket Number: Cr. 14528
• Court: California Supreme Court
• Parties: , 483 P.2d 780 The PEOPLE, Plaintiff and Respondent, v. Joseph Charles BISOGNI, Defendant and Appellant.

Page 164

94 Cal.Rptr. 164

4 Cal.3d 582, 483 P.2d 780

The PEOPLE, Plaintiff and Respondent, v. Joseph Charles BISOGNI, Defendant and Appellant.

Cr. 14528.

Supreme Court of California In Bank.

April 22, 1971.

Rehearing Denied May 19, 1971.

Charles v. Weedman, Los Angeles, for defendant and appellant.

Thomas C. Lynch, and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Defendant was charged with armed robbery. At his first trial the jury was unable to reach a verdict and a mistrial was declared. At his second trial he was found guilty as charged (Pen.Code, § 211). He appeals from the judgment entered on the verdict. We conclude that the judgment must be reversed because of the admission of courtroom identifications of defendant's chief alibi witness and alleged coparticipant, which identifications were tainted by a highly suggestive showup.

About 11 p.m. on November 23, 1966, two men and a woman robbed Alfred's Restaurant in Long Beach. Four customers were seated at the bar, Mrs. Cahill, Mrs. Watson, Mr. Wombacher and his sister. The taller male robber approached the four patrons and ordered them at gunpoint to proceed to the kitchen. The shorter male robber demanded that the bartender follow the patrons into the back kitchen, and the female robber forced the manager, John West, into the same area. All of the victims were required to face the wall and later were ordered into a walk-in refrigerator which was then locked.

At the trial the prosecution introduced evidence that defendant was the shorter male robber, that one Borrell was the taller male robber, and that defendant's close friend, Mrs. Phyllis Gordon, was the female robber. Defendant introduced alibi evidence that he and Mrs. Gordon were elsewhere when the robbery was committed. Borrell, in a totally unrelated incident, had been killed before defendant was apprehended. Mrs. Gordon, although originally charged with the robbery, was not a codefendant at the second trial.

Defendant contends that the trial court erred in admitting into evidence statements made to Sergeant Jordan of the Los Angeles Police Department by Mrs. Gordon, who was called as a witness for the prosecution. These statements were admissible, however, under Evidence Code, section 1235, and it is now settled that that section is constitutional. (California v. Green (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489; People v. Green (1971) 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998.) There is, therefore, no merit in this contention.

Defendant further contends that the trial court erred in finding that a lineup at which he was identified was fair and in admitting in-court identification testimony allegedly tainted by the lineup. At the trial, three of the victims of the robbery, Edna Cahill, Clara Watson and John West, identified defendant as one of the perpetrators of the crime. They had, however, witnessed a lineup that defendant claims was unfair and unduly suggestive.

Shortly after the robbery, Mr. West was shown several hundred mug shots, but he was unable to identify any of the persons photographed as being any individual involved in the robbery. About five months later, around the end of April or the first of May 1967, he was shown six or eight additional photographs which included one of Borrell and one of defendant. He identified Borrell's picture as that of the taller male robber, but he failed to identify defendant. Mrs. Cahill was also shown the same set of six or eight pictures, but she was unable to identify anyone. Mrs. Watson was never shown any of the mug shots.

On Monday, May 8, 1967, a lineup was held following defendant's arrest on Friday, May 5, 1967. All three witnesses were told that they were to view and try to identify possible participants of the robbery. The lineup occurred before the United States Supreme Court decision in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and defendant was not entitled to the presence of counsel at the lineup (People v. Feggans (1967) 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21; Stovall v. Denno (1967) 388 U.S. 293, 296--301, 87 S.Ct. 1967, 18 L.Ed.2d 1199). The controlling question is whether the lineup was so unnecessarily suggestive and conducive to a mistaken identification that admission of evidence of identifications based thereon resulted in a denial of due process. (People v. Caruso (1968) 68 Cal.2d 183, 187--189, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Feggans, supra, 67 Cal.2d at pp. 448--449, 62 Cal.Rptr. 419, 432 P.2d 21; Stovall v. Denno, supra, 388 U.S. at pp. 301--302, 87 S.Ct. 1967.) From a review of all of the evidence we conclude that the lineup in which defendant participated was fairly conducted and that he was not thereby denied due process of law.

Defendant also contends that the showup of Mrs. Gordon was unfair and unduly suggestive, that the witnesses' courtroom identifications were tainted by the police showup procedures and that he has standing to challenge such. We agree.

The reason for excluding identification evidence based on an unfairly conducted showup is that such evidence is unreliable as a matter of law and may result in the conviction of innocent persons. (People v. Caruso,supra, 68 Cal.2d at p. 188, 65 Cal.Rptr. 336, 436 P.2d 336; Stovall v. Denno, supra, 388 U.S. at p. 302, 87 S.Ct. 1967.) Obviously such evidence is equally unreliable when it is directed toward the identity of a coparticipant in a crime as when it relates to the identity of the defendant on trial. Accordingly, whenever the identity of a confederate is essential to prove the defendant's participation in a crime and when, as here, such evidence effectively destroys the defense offered by the defendant, he has standing to challenge the fairness of the identification procedures of the alleged coparticipant.

The prosecution introduced evidence that defendant and Mrs. Gordon were two of the three robbers, that they jointly participated in the perpetration of the crime, and that they were closely associated with each other. Defendant's alibi that he and Mrs. Gordon were not at the scene at the time the crime was committed was shattered by proof that Mrs. Gordon was in fact one of the robbers. Under such circumstances, use of identification evidence of Mrs. Gordon which was tainted by an unfair showup would have the effect of denying defendant due process. We are of the opinion that the in-court identification evidence of Mrs. Gordon was so tainted and that there was no showing on the part of the prosecution by clear and convincing proof that such identifications were based upon observations which were independently made. (People v. Caruso, supra, 68 Cal.2d 183, 189--190, 65 Cal.Rptr. 336, 436 P.2d 336.)

Following defendant's lineup, the three witnesses, Mrs. Cahill, Mrs. Watson, and Mr. West, were asked to look through a hole in a door or wall where they observed Mrs. Gordon alone in a room. Mrs. Watson first looked into the room and then related to Mrs. Cahill that the lady inside was the one who had been involved in the robbery. Mrs. Cahill, however, could not recognize her although Mr. West did. The witnesses previously had been told that they were being brought to the police station to try to identify suspects in the robbery. Immediately prior to observing Mrs. Gordon they had identified defendant as one of the robbers. They also knew that one of the three involved in...