People v. Fowler

• Decision Date: 14 March 1969
• Docket Number: Cr. 7265
• Citation: 76 Cal.Rptr. 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henderson Lyn FOWLER, Defendant and Appellant.

Page 1

76 Cal.Rptr. 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henderson Lyn FOWLER, Defendant and Appellant.

Cr. 7265.

Court of Appeal, First District, Division 4, California.

March 14, 1969.

For Opinion on Hearing see, 82 Cal Rptr. 363, 461 P.2d 643.

John D. Nunes, Public Defender, Alameda County, James H. Newhouse, Asst. Public Defender, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

Henderson Fowler appeals, after trial by jury, from a judgment convicting him of robbery in the first degree (Pen.Code, § 211). We have concluded that the judgment must be reversed because the finding of guilt depends substantially upon evidence of an identification lineup which does not meet constitutional requirements.

On the evening of August 30, 1967 three young Negro men entered the office of the Edgewater Inn in Oakland. One of them asked for and obtained change; another then displayed a pistol and menaced the two employees present while the first man came behind the counter and took money from the cash box. After some conversation regarding the possible presence of more money, the three men left. The office in which the robbery occurred was well lighted; the bandits were there approximately ten minutes. The man who took the money from the cash box came very close to the employees during the robbery. At trial the two employees identified appellant as the man who took the money. They described the gunman as being somewhat thinner and shorter than the first robber. They were unable to describe the third man.

Two days after the robbery the two motel employees went to the Oakland Police Department and were shown several 'mug shots.' The pictures were all of Negro males of approximately the same age. Both witnesses picked appellant's picture from this group as the robber who had taken the money from the cash box. About half an hour later, the witnesses were shown another group of approximately twelve pictures of 'associates' of appellant. All these photographs were of male Negroes of approximately the same age. From this group the witnesses selected the photograph of one Leon Gray as that of the gunman. The arrest of appellant and Gray was then ordered. On September 7, 1967 the witnesses attended a lineup which included Gray. Both witnesses identified him as the gunman in the robbery but one witness was uncertain. Gray was therefore released.

A few days later appellant came to the police station. After receiving a Miranda ¹ admonition appellant gave an officer a statement in which he denied participating in the August 30 robbery. The officer asked appellant if he had an attorney, but did not tell appellant that he had a right to the presence of an attorney at the forthcoming lineup.

Five men including appellant participated in the lineup. All were Negroes of approximately the same age and height; appellant and one of the men were somewhat heavier in build and darker in color than the others. The witnesses were aware that the purpose of this lineup was to identify the robber who had not been in the first lineup. Both witnesses positively identified appellant as the man who had taken the money from the cash box.

At the beginning of the trial the court took evidence out of the hearing of the jury concerning the circumstances of appellant's out-of-court identification; thereupon the court denied a defense motion which had been made on the authority of 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, to suppress evidence of the lineup identification. The theory of the motion was that the lineup evidence was inadmissible because appellant had not been informed of his right to have counsel made available and be present at the lineup. The trial judge denied the motion, holding that the police were not required to give such advice.

In 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, the Supreme Court held that an accused has the right to have counsel present at a police lineup. This rule was declared to be necessary in order to guarantee the right to counsel at all 'critical stages' of criminal proceedings and to make meaningful the right to cross-examine all witnesses against a criminal defendant. The court held that a police lineup was not merely a preparatory process (United States v. Wade, supra, 388 U.S. at p. 227-228, 236-237, 87 S.Ct. 1926):

'Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) * * * as at the trial itself.' Powell v. State of Alabama, 287 U.S. 45, at 57, 53 S.Ct. 55, at 60, 77 L.Ed. 158.' 388 U.S. at p. 236, 87 S.Ct. at p. 1937.

The court pointed to the following factors in stressing the importance of counsel at a lineup: (1) Once the witness identifies a suspect at a police lineup, he is unlikely to change his mind at trial. (United States v. Wade, supra, 388 U.S. 218, 229, 87 S.Ct. 1926.) (2) In order to attack a lineup identification it must be reconstructed at trial. (United States v. Wade, supra, at pp. 231-232, 87 S.Ct. 1926.) (3) The tendency toward unfair and unreliable lineup identifications is inherent and need not be intentional on the part of police (United States v. Wade, supra, at p. 235, 87 S.Ct. 1926.) (4) Lineup procedures which deprive the defendant of the ability to bring effective scrutiny to bear upon the basis for in-trial identifications deprive a defendant of his right to cross-examine and confront the witnesses against him. (United States v. Wade, supra, at p. 235, 87 S.Ct. 1926.)

In a companion case (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) the court ruled that Wade and Gilbert are to be applied to cases in which lineups occurred after June 12, 1967 (the date of those decisions). (Also see People v. Feggans (1967) 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21.) Appellant's lineup took place after June 12, 1967.

Both the Wade and Gilbert cases involved lineups which occurred after the suspect had been indicted and after counsel had been appointed. Similarly, the California cases discussing Wade and Gilbert have involved suspects who had counsel at the time of the lineup (e. g., People v. Caruso (1968) 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336). Citing Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, the Attorney General urges this court not to 'extend' the Wade-Gilbert rule to a lineup such as appellant's, which occurred before appellant was indicted or had counsel.

But Supreme Court decisions after Massiah have indicated that the right to counsel attaches much earlier, both as an independent right (Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) and as an aid to the protection of other constitutional guarantees (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602). The California Supreme Court has also recognized that a 'critical stage' in criminal proceedings, entitling the accused to counsel may be reached long before an indictment is filed. (People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, cert. den., 381 U.S. 937, 946, 85 S.Ct. 1765, 14 L.Ed.2d 702.)

The factors which make a police lineup a 'critical stage' in the proceedings (United States v. Wade, supra, 388 U.S. 218, 236-237, 87 S.Ct. 1926) are present in preindictment as well as post-indictment lineups. The reasons given by the court (United States v. Wade, supra, at pp. 229-235, 87 S.Ct. 1926) for the importance of counsel's presence at the lineup apply whether the confrontation occurs before or after indictment. In some cases these factors may be more important before indictment; a suspect who has not been charged may be less likely to be on the alert for procedural unfairness and less willing to cast suspicion upon himself by objecting to police procedures.

It is true that "post-indictment" language was used in Wade (United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926) but that language applied naturally to the facts presented to the court in that case. Many other passages of the Wade, Gilbert and Stovall opinions indicate that the holdings were intended to avoid unfairness at all 'confrontations for identification' (e. g. Stovall v. Denno, supra, 388 U.S. 293, 296, 297-298, 87 S.Ct. 1967). In light of this language and the reasons underlying the Wade-Gilbert rule, we hold that appellant was entitled to have counsel present at the lineup even though he had not yet been charged.

Appellant argues that it is necessary, in order to give effect to this right, that a suspect be warned prior to the lineup of his right to have counsel present; without such a warning there has been no knowing waiver of that right. (Cf. Miranda v. Arizona, supra, 384 U.S. 436, 475, 86 S.Ct. 1602.) Respondent contends that the Miranda analogy is not pertinent because the Miranda warning is intended chiefly to dispel the coercive atmosphere at police interrogations. Such coercion is not a problem at a lineup; hence, it is argued, no admonition should be required. But the Miranda warning has other purposes. In addition to dispelling the inherent pressure of police interrogation, the warning informs the accused of his rights and makes clear to him the adversary nature of the criminal proceedings, which have begun. (Miranda v. Arizona, supra at pp. 467-468, 86 S.Ct. 1602.) These purposes apply as well...