People v. Caruso

Decision Date26 January 1968
Docket NumberCr. 11709
Citation68 Cal.2d 183,436 P.2d 336,65 Cal.Rptr. 336
CourtCalifornia Supreme Court
Parties, 436 P.2d 336 The PEOPLE, Plaintiff and Respondent, v. Edward John CARUSO, Defendant and Appellant.

Russell E. Parsons, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree robbery. (Pen.Code, § 211.)

At the police lineup defendant did not have the assistance of counsel, a right that has since been held to be guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. (United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) We have heretofore decided, however, that the rule of Wade and Gilbert, requiring the exclusion of in-court identification testimony tainted by displaying an accused to identifying witnesses before trial in the absence of his counsel, unless an effective waiver has been procured, is to be given only prospective application. (People v. Feggans (1967) 67 A.C. 447, 62 Cal.Rptr. 419, 432 P.2d 21.) Since this is a Pre-Wade and Gilbert case, before defendant may invoke an exclusionary concept he must demonstrate that the lineup 'resulted in such unfairness that it infringed his right to due process of law.' (Stovall v. Denno (1967) 388 U.S. 293, 299, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199.) Defendant Caruso has made a showing that the lineup was unfair, resulting in tainted in-court identification essential to the People's case. The People fail to demonstrate that the error was harmless (Chapman v. State v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705), and the judgment must therefore be reversed.

On the morning of February 23, 1965, Olen Seeley, an employee at a Robert Hall store, momentarily left his job to seek some matches in his car. As he walked through the store parking lot he noticed a parked black two-door Ford hardtop with a man inside; he detected nothing unusual about the man or the vehicle.

Later that day, about 12:45 p.m., Seeley and Robert Butkus, the store manager, left the store to make a routine deposit of the morning receipts. Butkus had just inserted the key in the ignition of his station wagon when he heard a car pull up behind him, and both he and Seeley turned to look at it. The car slowed to a halt immediately behind the station wagon and blocked its exit from the store parking lot.

Before the car came to a complete stop the passenger door was opened, and a man wearing a dark zip-up jacket, a snap brim hat, and a handkerchief over the bridge of his nose, quickly approached the driver's side of the station wagon. As he advanced he drew his hand from the inside of his jacket, disclosing what appeared to be an automatic pistol.

At this point Seeley observed the profile of the driver of the car, and Butkus 'saw' him. Both testified that the length of their view was five to six seconds. Both described the driver as big, with dark wavy hair and a dark complexion. Neither victim could describe the driver's clothing, although Butkus thought he was wearing a T-shirt. Their attention was primarily focused, quite naturally, on the armed, masked man who was moving toward them. When the masked man reached the station wagon, he ordered Butkus to give him the money and the keys to his car. Butkus quickly complied with both orders, and and in response to a further demand he and Seeley crouched down on the seat while the robbers drove off. The total episode, resulting in seizure of a white bag that contained the store's receipts, had taken no more than 30 seconds. Butkus and Seeley immediately reentered the store and called the police. Officers arrived within minutes, about 12:58 p.m.

Later that afternoon the police located the black Ford approximately four blocks from the scene of the robbery in a parking area reserved for a commercial laboratory. As the laboratory's production manager, Tom Dulin, returned from lunch he discovered to his annoyance that a car had just parked in his private space. He attempted to explain that it was illegally parked but the driver hurried off, mumbling that he would be back later. He noted that the man was carrying a brown paper sack but could not recall the man's physical appearance. Dulin watched him leave the parking area, run diagonally across Valley Street to a nearby intersection, and then down Victory Boulevard until he passed from sight. He informed the police of the illegally parked car, and the police ascertained that the vehicle, which was found to have been stolen, was the black Ford used in the robbery. At trial Dulin was unable to remember when he had returned from lunch, and police records apparently did not reflect the time he placed the telephone call.

Officer Ysmael Torres lived near the same laboratory, and on the day in question he left his home in time to report for a 1 p.m. class at the police station. As he proceeded north on Valley Street, very near his home, he watched a man in a brownish jacket emerge from an alley below the parking area for the laboratory, place a white object that resembled a bag underneath his jacket, and enter the passenger side of the car in front of him. The car, with the two men in it, then proceeded to the intersection of Valley Street and Victory Boulevard, made a regular boulevard stop, and then turned down Victory Boulevard for a short distance before turning off. These events attracted his attention for no reason other than that the pedestrian 'appeared to be having some conversation' with the driver of the car in front, although the officer could not overhear its contents. He noted the license number of the car and upon learning of the robbery he reported the license number for investigation. The police learned that this number had been assigned to defendant's family car.

Since the movements of the person observed by Dulin differed substantially from those of the person observed by Torres, it is evident that the two men could not have seen the same individual or the same events. At trial Dulin was uncertain of the features of the person he observed, and Torres also was unable to recall the physical traits of the pedestrian who had initially attracted his attention. On the other hand, Torres described the driver of the car in front of him as 'big shouldered' and 'dark haired,' but he did not testify that the driver was defendant. At most, Torres' observations tended to place defendant's car in the vicinity of the Robert Hall store at the approximate time of the crime.

From the foregoing summary of the testimony, it is manifest that the jury must have found in the victims' in-court identification persuasive evidence that defendant was the driver of the robbery car.

Defendant was arrested in his home on the night of the robbery, and the next morning he was placed in a lineup with four other men. Both victims, Butkus and Seeley, identified defendant as the driver of the robbery car. Seeley further identified defendant as the man in the car in the Robert Hall parking lot who had briefly attracted his notice earlier that morning when he went to his car to retrieve some matches.

But the uncontradicted testimony of all those who viewed the lineup demonstrates that it was conducted under circumstances which could only have suggested to Butkus and Seeley that defendant was the man to be charged with the offense. Defendant is of imposing stature, being 6 feet 1 inch tall, and weighing 238 pounds. He is of Italian descent, with a very dark complexion, and has dark wavy hair. The two victims, the officer in charge of the investigation, Sergeant Allen, and defendant all testified that the other lineup participants did not physically resemble defendant. 1 They were not his size, not one had his dark complexion, and none had dark wavy hair. During the robbery both Seeley and Butkus had noted the driver's large size and dark complexion, and, if they were to choose anyone in the lineup, defendant was singularly marked for identification. We can only conclude that the lineup was 'unnecessarily suggestive and conducive to irreparable mistaken identification' (Stovall v. Denno (1967) supra, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199), and we hold that its grossly un fair makeup deprived defendant of due process of law. (Stovall v. Denno, supra.)

In reaching this determination, we do no more than recognize, as did the United States Supreme Court, that unfairly constituted lineups have in the past too often brought about the conviction of the innocent. In United States v. Wade (1967) supra, 388 U.S. 218, 228--229, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149, the Supreme Court observed: 'A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that 'the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor--perhaps it is responsible for more such errors than all other factors combined.' Wall, Eyewitness Identification in Criminal Cases 26. * * * And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.' It was further observed (at pp. 229--230 of 388 U.S., at p. 1934 of 87 S.Ct.) that once a witness picks the accused at the lineup he rarely retracts his identification and that in robbery cases the lineup presents 'a particular...

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