People v. Brown

Decision Date20 May 1969
Docket NumberCr. 15496
Citation77 Cal.Rptr. 863,273 Cal.App.2d 109
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Manual Cleveland BROWN, Defendant and Appellant.

Philip J. Catanzaro, Jr., Los Angeles, for appellant by appointment of the Court of Appeal.

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

LILLIE, Associate Justice.

Defendant was convicted of robbery, second degree and acquitted of kidnaping and attempted rape. He appeals from the judgment.

Around 6 p.m. on January 2, 1968, in a well lighted residential area, defendant grabbed Mrs. Webster and pulled her into an alley; she screamed and struggled but defendant tore off most of her clothing except her skirt, knocked her purse to the ground spilling the contents, including a dollar bill, and pushed her to the ground; she tried to scream but he threatened to kill her, put his hand over her mouth and tried to choke her. Exposing himself he got on top of Mrs. Webster who was lying on the ground of her back; meanwhile he looked over and saw the dollar bill, picked it up, got off of her and ran down the alley; he had no act of intercourse. She called police and two officers came to her home; she described her assailant as 20 to 25 years of age, between 5 feet 10 inches and 6 feet tall, 150 pounds and wearing 'process' hair, dark clothing and black gloves.

On either January 3 or 4 officers showed Mrs. Webster 55 pictures of male Negroes; defendant's photograph was not among them; she could identify none as being her assailant. Two or three weeks later police showed her two photographs of defendant--the top half of his body in profile and 'straight on,' and full body in profile and 'straight on'; he had 'process' hair; they asked her to look at the photographs, she did so and recognized him as her assailant; the officers said nothing but thanked her and departed.

A week and a half later at a police lineup of five male Negroes approximately all the same size except for one who was shorter, Mrs. Webster identified defendant; the officers had not told her that the person she identified from the two photographs would be in the lineup. In the lineup defendant was not wearing 'process' but short hair; however she testified that he looked like the person she identified in the photograph and like the person who attacked her.

Defendant's mother and several witnesses testified that he was elsewhere at the time of the attack. He testified he was arrested on January 22; the police informed him of his right to counsel at the lineup, which he waived; he was placed in a lineup with four other male Negroes second to the end to the left in the lineup--the first, in his late twenties, was 5 feet 10 inches tall; the second, 20 years old, was between 5 feet 6 and 5 feet 7; the third, in his thirties, was 5 feet 10; he (defendant) was the fourth and the fifth was in his early twenties, the same height. Defendant is 22 years old, 5 feet 11 and weighs 141 pounds. Officer Jenks called by the defense testified that Mrs. Webster had described her attacker as a male Negro, about 20, approximately 5 feet 10 inches to 6 feet tall, weighing approximately 150 pounds, having black natural hair and wearing dark clothing, a dark jacket and black gloves.

Appellant claims that it was unfair for police to submit his photographs singly to Mrs. Webster because it gave her no choice, and had they been shown with others depicting men with 'process' hair she might not have identified him. He relies on Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, wherein the Supreme Court commented that 'The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.' But the court did not hold that showing a suspect individually to a victim is inherently unfair for it continued, 'However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, * * *' (P. 302, 87 S.Ct. p. 1972.) Recounting that the victim, who had been badly injured in the attack, required surgery and might die, was unable to visit the jail to view a lineup thus the police took Stovall to the hospital room, the court held that the circumstances were such as to warrant the showing of defendant individually to her. Later in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the court recognized that danger of incorrect identification 'will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, * * *' (p. 383, 88 S.Ct. p. 971) but said it 'may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's (pre-trial photographic procedure) potential for error' and held 'that each case must be considered on its own facts, and that convictions 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.' (P. 384, 88 S.Ct. p. 971.) Appellant must demonstrate that the pre-trial photographic identification procedure resulted in such unfairness that it infringed his right to due process of law (Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 18 L.Ed.2d 1199; PEOPLE V. HASTON, 69 CAL.2D ---, ---, 70 CAL.RPTR. 419, 444 P.2D 91;A People v. Caruso, 68 Cal.2d 183, 184, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Feggans, 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21); he has failed to sustain that burden and our examination of the record convinces us that the photographic identification procedure comported with due process. There is no evidence that the police in any manner suggested that defendant committed the crime (they merely showed her the two photographs) or 'that the pictures were used to prime the witnesses to identify defendant' (People v. Feggans, 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21, 24) or that Mrs. Webster was told that the man she identified was this defendant or that he would be included in the lineup from which she also identified him.

The overriding consideration here is that the record establishes without any doubt that Mrs. Webster's in-court identification of defendant was based solely on a...

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6 cases
  • People v. Stuller
    • United States
    • California Court of Appeals Court of Appeals
    • 14 Agosto 1970
    ...defendant by the two victims was not based on the photographs but on their observations at the time of the attacks. (People v. Brown, 273 A.C.A. 124, 127, 77 Cal.Rptr. 863.) Defendant charges that the court erred in its rulings on the admissibility of evidence. First, he states that his cou......
  • People v. Greene
    • United States
    • California Court of Appeals Court of Appeals
    • 15 Octubre 1973
    ...7 Cal.App.3d 117, 122, 86 Cal.Rptr. 428; People v. Wendling (1970) 4 Cal.App.3d 317, 322, 84 Cal.Rptr. 310; People v. Brown (1969) 273 Cal.App.2d 109, 111--112, 77 Cal.Rptr. 863; and People v. Neal (1969) 271 Cal.App.2d 826, 831--832, 77 Cal.Rptr. 65 (cert. den. (1969) 396 U.S. 946, 90 S.Ct......
  • People v. Hernandez
    • United States
    • California Court of Appeals Court of Appeals
    • 22 Septiembre 1970
    ...would be included in the lineup. (Cf. People v. Feggans, Supra, 67 Cal.2d 444, 449, 62 Cal.Rptr. 419, 432 P.2d 21; People v. Brown, 273 A.C.A. 124, 127, 77 Cal.Rptr. 863.) Mere proximity in time between the viewing of photographs and a lineup is not, in itself, evidence that the witness has......
  • People v. Harris
    • United States
    • California Court of Appeals Court of Appeals
    • 17 Julio 1969
    ...A.C. 811, 817, 76 Cal.Rptr. 462, 452 P.2d 678; People v. Smith (1969) 273 A.C.A. 584, 592--593, 78 Cal.Rptr. 405; People v. Brown (1969) 273 A.C.A. 124, 126, 77 Cal.Rptr. 863; People v. Hughes, supra, 271 A.C.A. 343, 346, 76 Cal.Rptr. 369; People v. Burns (1969) 270 A.C.A. 263, 270, 75 Cal.......
  • Request a trial to view additional results

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