People v. Fowler

• Decision Date: 09 December 1969
• Docket Number: Cr. 13442
• Citation: 1 Cal.3d 335,82 Cal.Rptr. 363,461 P.2d 643
• Court: California Supreme Court
• Parties: , 461 P.2d 643 The PEOPLE, Plaintiff and Respondent, v. Henderson Lyn FOWLER, Defendant and Appellant.

Page 363

82 Cal.Rptr. 363

1 Cal.3d 335, 461 P.2d 643

The PEOPLE, Plaintiff and Respondent, v. Henderson Lyn FOWLER, Defendant and Appellant.

Cr. 13442.

Supreme Court of California In Bank.

Dec. 9, 1969.

James H. Newhouse, Los Angeles, under appointment by the Supreme Court, and John D. Nunes, Public Defender, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attys . Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Henderson Lyn Fowler was charged by information with the crime of robbery. (Pen.Code, § 211.) A jury found him guilty as charged and determined that the crime was of the first degree. (See Pen.Code, § 211a.) Defendant was committed to the California Youth Authority for the term prescribed by law. ¹ He appeals from the judgment of commitment. (Pen.Code, § 1237; see Welf. & Inst.Code, § 1737.5.)

In the instant case we interpret and apply the constitutionally-grounded rules which were enunciated by the Supreme Court of the United States in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. We conclude that the commitment must be reversed because evidence obtained in violation of these rules was admitted at trial and such erroneous admission was not harmless within the meaning of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

About 9:30 p.m. on August 30, 1967, three young Negro men entered the lobby of the Edgewater West Motor Inn in Oakland. Two employees of the motel--Janice Miller, the desk clerk, and Helen Woodhall, the auditor and front desk manager--were conversing near the registration desk. One of the men asked them for change for the cigarette machine. Upon receiving the change he produced a gun, pointed it at the two women, and ordered them to raise their hands. He and one of his confederates then went behind the desk and the latter took some $177 from the cash drawer. The third man remained by the door of the lobby out of the direct view of the two women. After the cash drawer had been emptied the man with the gun asked where the 'big money' was and his companion suggested a cabinet drawer, which proved to be empty. The two men then took some money from Miss Miller's purse and, ordering the two women to come out from behind the desk and remain there for five minutes, they departed along with their 'lookout' man.

The office was well-lighted, and the robbers were there approximately ten minutes overall. The two men who went behind the registration desk were quite close to the two women during the robbery.

Police, who had been summoned by a patron of the nearby motel dining room, arrived within a few minutes after the robbers left. After the two women had given a general account of the robbery they were asked for descriptions of the robbers. ² Neither was able to give any description of the man who had stood lookout, but each gave substantially identical descriptions of the two men who had gone behind the registration desk. The gunman was described as approximately five feet eight inches in height, slender and delicate, with his hair combed high up on the front of his head. The man accompanying him be hind the desk was said to be taller and heavier, perhaps five feet ten inches in height and 190 pounds, with straight black hair. His clothing was described as dark or brown trousers and a dark or blue brushed cardigan sweater. Neither woman was able to give significant details as to the facial characteristics of any of the robbers, although Miss Miller said that the gunman had 'fine features.'

On the next day Miss Miller and Mrs. Woodhall went to the police department where they were shown photographs of six or seven Negro males of the approximate age of the robbers. ³ Both chose a photograph of defendant Fowler and positively stated that he was the man who had accompanied the gunman behind the registration desk and who had taken the money from the cash drawer. After a brief interval, the women were shown a second group of from 12 to 14 photographs--apparently featuring defendant's known associates. From this group they selected a photograph of one Leon Gray as that of the gunman. ⁴

On the basis of these identifications warrants were issued for the arrest of defendant and Leon Gray.

On September 5, 1967, Gray was arrested at his residence. Two days later he appeared in a lineup. Gray was by that time represented by the public defender's office, and prior to the lineup he was asked whether he wished to have his counsel present. ⁵ Gray replied in the affirmative, the public defender's office was contacted, and a member of that office represented Gray at the lineup. However, counsel was not permitted to speak to the witnesses, Miss Miller and Mrs. Woodhall, prior to or during the lineup and was permitted to obtain their names and addresses only after the lineup had been concluded.

There were five participants in the lineup, including Gray. A photograph subsequently introduced into evidence shows that all of the participants were Negro men of the same approximate age and height, although there were differences in build and clothing, and Gray was slightly taller than the other participants. Each was required to speak words used by the gunman in the robbery. ⁶ After the lineup the two witnesses were individually approached by the inspector in charge and asked to whisper her identification, if any. Gray's counsel sought to overhear the words whispered by the inspector and each of the respective witnesses, but he was unable to do so. After the identifications had been made in this manner counsel was informed of the result, which he when confirmed with the two women. Miss Miller made a positive identification of Gray as the gunman. ⁷ Mrs. Woodhall, however, was less positive in her identification, and Gray was released.

On September 11, 1967, defendant Fowler went to the police and surrendered himself. He was taken to an interrogation room and, after being advised of his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), gave a statement in which he proffered an alibi and denied involvement in the robbery. Later that evening he appeared in a lineup and was positively identified by Miss Miller and Mrs. Woodhall as the man who had come behind the registration desk with the gunman and had taken the money from the cash drawer.

No counsel was present on defendant's behalf at the lineup of September 11. Immediately before the lineup defendant was asked whether he was represented by an attorney and he replied that he was not. However, defendant was not told that if he so desired, an attorney would be appointed to represent him at the lineup. ⁸

There were five participants in this lineup, including defendant Fowler. A photograph subsequently introduced into evidence shows that all of the participants were Negro men of the same approximate age and height. There were differences in clothing, however, and defendant was the only participant of a heavy build. Each was required to speak words used by the robber who had accompanied the gunman behind the registration desk. As indicated above Miss Miller and Mrs. Woodhall both identified defendant as the robber in question. ⁹

At trial and after the jury had been empanelled defendant made a motion to suppress evidence of the lineup identification on the authority of United States v. Wade, Supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, Supra, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The motion was heard out of the presence of the jury. Testimony was taken from various persons involved in the lineup proceedings ¹⁰ and the facts appeared substantially as set forth above. Defendant contended that evidence of his lineup should be suppressed because counsel was not present. He further contended that he should have been advised prior to the lineup that, because he was not represented by an attorney, an attorney would be appointed to be present at the lineup in his behalf. The motion was denied, and the court also denied a motion to prepare a transcript of the proceedings on the motion for use at trial.

During the prosecution's case in chief both Miss Miller and Mrs. Woodhall made an in-court identification of defendant as the robber who came behind the registration desk and emptied the cash drawer. Both women also identified the photographs of Gray and defendant which they had selected from the police files on the day after the robbery. Finally, both women testified regarding the two lineups at which they had identified Gray and defendant.

All other persons who had testified on the motion to suppress also testified at trial. At the close of the prosecution's case in chief defendant moved to strike the testimony of Miss Miller, Mrs. Woodhall, and Inspector Madsen, on the ground that he had been denied effective cross-examination in violation of the confrontation clause of the Sixth Amendment by the court's refusal to allow preparation of a transcript of the proceedings on the motion to suppress. The motion to strike was denied.

Defendant testified at the trial. He denied guilt and claimed that he was at home with his family and Leon Gray at the time of the robbery. Members of the family testified in support of this alibi, but Gray, called in rebuttal, denied that he was with defendant on the night in question.

As previously stated, the jury found defendant guilty of robbery in the first degree, and the court committed him to the California Youth Authority. This appeal followed.

In United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the United States Supreme Court held five to four that a federal judgment convicting defendant Wade of bank robbery should be vacated because he had been required to...