People v. Chojnacky

• Decision Date: 30 January 1973
• Docket Number: Cr. 16385
• Citation: 8 Cal.3d 759,106 Cal.Rptr. 106,505 P.2d 530
• Court: California Supreme Court
• Parties: , 505 P.2d 530 The PEOPLE, Plaintiff and Respondent, v. Kenneth Ray CHOJNACKY, Defendant and Appellant. In Bank

Page 106

106 Cal.Rptr. 106

8 Cal.3d 759, 505 P.2d 530

The PEOPLE, Plaintiff and Respondent, v. Kenneth Ray CHOJNACKY, Defendant and Appellant.

Cr. 16385.

Supreme Court of California,

In Bank.

Jan. 30, 1973.

Chern & Sharpe, Lompoc, Chern, Sharpe, Farren & Kresse, Santa Maria and Lompoc, and Bruce Sharpe, Lompoc, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore and Norman H. Sokolow, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

A jury found Kenneth Ray Chojnacky guilty of robbery and determined that the crime was of the first degree and that he was armed with a deadly weapon at the time of the offense. A prison sentence was imposed, and defendant appeals from the judgment.

Defendant contends that (1) under 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, it was error to admit certain identification testimony and (2) prosecutorial misconduct requires a reversal of the judgment. We reject the first contention on the ground that the Wade-Gilbert exclusionary rule is inapplicable here since the instant lineup Preceded the initiation of judicial criminal proceedings. We also reject the second contention, and we affirm the judgment.

On August 30, 1970, Dean Lipscomb was working alone at Jimmy's Service Station in Fontana. Around ten that night two men approached him and said they had run out of gas. Lipscomb had never seen either man before but offered to help them if they would wait until he closed up, and they agreed. Lipscomb went into the office, and the two men followed him. One of the men stuck a knife in Lipscomb's back and demanded money. Lipscomb handed to the robbers money from a cash box and a safe. The robbers took him into an adjoining room, and a discussion ensued regarding tying him up. He persuaded them not to do so, and the robbers eventually left. After they departed, Paul Davenport, who had observed two men walk into the service station, go into the office with Lipscomb, and come out by themselves and run, went to the station to investigate, and the police were called.

On the night of the robbery floodlights were on at the service station and lights were on inside. Lipscomb estimated that the robbers were probably there about ten minutes. Davenport thought they were there not over four or five minutes.

'Some days' after the robbery the police showed Lipscomb about 500 photographs, and he picked out one of defendant and said it looked like one of the robbers although he could not make a positive identification from the photograph. ¹ Thereafter Lipscomb identified defendant following a lineup on September 18, 1970, and again at the preliminary hearing. At the trial Lipscomb likewise identified defendant as one of the robbers and said that defendant was the one who held the knife. Davenport was unable to recognize either robber since they were too far from him.

The defense called as a witness Danny Lehman, who pleaded guilty to the instant robbery. Lehman testified that he committed the robbery and that the other robber was not defendant. He further stated that he was a friend of defendant's, that the other robber was named Ron, and that Lehman did not know Ron's last name or where to find him.

Defendant, testifying in his own behalf, denied committing the robbery and testified to an alibi. He stated: From about 3 p.m. on August 30 until around 5 the next morning he was at the house of a Miss Theda Davis and did not leave there during that period. A party was in progress at Miss Davis', and people were coming and going most of the night. Colin Nichols and other specified persons were at the party. Defendant did not know if he was in the living room the entire time Nichols was there. He knew the Ron referred to by Lehman and Ron's last name was Nelson or Neilson, but defendant did not have Ron's address. Defendant initially stated that he knew Lehman and had seen him five or six times before August 30 at bars and other places, but thereafter when asked by the prosecution, 'Aside from possibly in court somewhere, did you ever see (Lehman) anywhere?,' defendant replied, 'No.'

Defendant's alibi was corroborated by Colin Nichols, who testified: He arrived at Theda Davis' house around 7 p.m. on August 30 and remained there until 12:30 the next morning, and defendant was there the entire time. It was possible someone could have gone out of or come into the kitchen door while Nichols was in the living room. There were about 10 or 12 at the party that night, and so far as he knew everybody who was there when he arrived stayed until he left. Jimmy's Service Station was about four miles from Miss Davis' house.

Defendant contends that for specified reasons he did not have the effective assistance of counsel at the lineup and that it was therefore error under the exclusionary rule of United States v. Wade, Supra, 388 U.S. 218, 87 S.Ct. 1926, and Gilbert v. California, Supra, 388 U.S. 263, 87 S.Ct. 1951, for the prosecution to introduce, over objection, (1) the lineup identification and (2) the victim's in-court identification in the absence of proof that it arose from a source independent of the lineup. ² The attorney for each party has stipulated that the lineup Preceded the initiation of judicial criminal proceedings.

United States v. Wade, Supra, 388 U.S. 218, 87 S.Ct. 1926, and Gilbert v. California, Supra, 388 U.S. 263, 87 S.Ct. 1951, held 'that a Post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth (and Fourteenth) Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.' (Italics added; Gilbert v. California, Supra, at p. 272, 87 S.Ct. at p. 1956.) Wade and Gilbert established a 'per se exclusionary rule' as to in-court identifications if their source is a lineup conducted in violation of the foregoing constitutional standard and as to testimony of identification at such a lineup.

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, five justices declined to extend the Wade-Gilbert per se exclusionary rule to identification testimony based on a police station showup that took place Before the defendant had been indicted or otherwise formally charged with any criminal offense. In Kirby the defendant and a companion had been arrested but not yet formally charged at the time of a police station confrontation of the suspects by the robbery victim. No lawyer was present, and neither suspect had asked for legal assistance or been advised of any right to the presence of counsel. At the trial the victim described his identification of the two men at the police station and identified them again in the courtroom as the men who robbed him.

Justice Stewart, who wrote the plurality opinion in Kirby, declared that since Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 'it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. . . . In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. . . . The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (fn. omitted). When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.' (406 U.S. at pp. 688, 690--691, 92 S.Ct. at pp. 1881, 1882--1883.) Chief Justice Burger and Justices Blackmun and Rehnquist joined in the opinion by Justice Stewart, and Justice Powell concurred in the result on the ground that he 'would not extend the Wade-Gilbert per se exclusionary rule.'

Before Kirby this court in People v. Fowler, 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, held that the Wade-Gilbert rules were applicable to a formal pre-accusation lineup, and several California Pre-Kirby decisions relied upon the conclusion in Fowler. (People v. Banks, 2 Cal.3d 127, 134, 84 Cal.Rptr. 367, 465 P.2d 263; People v. Martin, 2 Cal.3d 822, 830, fn. 7, 87 Cal.Rptr. 709, 471 P.2d 29; see People v. Thomas, 5 Cal.App.3d 889, 896, 86 Cal.Rptr. 97; People v. Smith, 4 Cal.App.3d 41, 46, 84 Cal.Rptr. 229.) Fowler and the other California decisions were based on the federal Constitution and are not controlling in view of the decision rendered by the United States Supreme Court in Kirby. At least one California Post-Kirby decision has followed the rule in Kirby. (People v. Faulkner, 28 Cal.App.3d 384, 390, 104 Cal.Rptr. 625.)

Since here the lineup preceded the initiation of judicial criminal proceedings, the Wade-Gilbert per se exclusionary rule is inapplicable, and defendant's previously recited claims of error based on that rule therefore cannot be upheld. No claim is made, nor does it appear, that the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification.

Defendant also contends that the prosecution was guilty of prejudicial misconduct during its examination of witnesses. On cross-examination of defendant by the...