People v. Hawkins, Cr. 3718

• Decision Date: 29 April 1970
• Docket Number: Cr. 3718
• Citation: 86 Cal.Rptr. 428,7 Cal.App.3d 117
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward Marshall HAWKINS, Defendant and Appellant.

Page 428

86 Cal.Rptr. 428

7 Cal.App.3d 117

The PEOPLE, Plaintiff and Respondent, v. Edward Marshall HAWKINS, Defendant and Appellant.

Cr. 3718.

Court of Appeal, Fourth District, Division 1, California.

April 29, 1970.

[7 Cal.App.3d 120] Benjamin P. Dillahunty, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ivan Hoffman, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

COUGHLIN, Associate Justice.

Defendant appeals from a conviction of robbery. Allegedly he and a man named Williams, on October 31, 1968, shortly after 8:00 a.m., robbed the owner of a market, Mrs. Abraham. An eleven-year-old girl named Dianna Jaramillo was present at the time of the robbery. The police were notified. Mrs. Abraham was interviewed by Officer Weaver and gave him a description of the two men who robbed her. At about 10:30 a.m. Officer Weaver and Officer McLennan, in separate automobiles, observed defendant and Williams a few blocks from the market; noted the two men look at the police vehicles, then turn and run toward a building. Officer Weaver drove to the back of the building; saw the two men, who appeared to be hiding behind a staircase; ran toward them and as he did so both men attempted to run behind the building; drew his revolver; and ordered the men to halt. Williams stopped. Defendant ran around the building toward the front; observed Officer McLennan coming in his direction; returned; and was taken into custody by Officer Weaver.

In the early afternoon of the same day Officer McLennan displayed photographs of eight Negro men, including defendant and Williams, to Mrs. Abraham at the market; told her the photographs included two subjects he believed were responsible for the robbery; and asked her to spread them out on the service counter, to carefully look at each one and to 'see if she could identify anyone in the group of pictures'. Mrs. Abraham selected two photographs she identified as pictures of the men who robbed her; one of Hawkins; and the other of a man named Henry. Thereafter, the photographs were shown to Dianna Jaramillo and she also selected those of defendant and Henry as the robbers. Although Miss Jaramillo was present in the market while Mrs. Abraham selected photographs of the two suspects, the girl stood off to one side; did not observe Mrs. Abraham make her selection; and in no way had knowledge respecting the photographs Mrs. Abraham selected.

Williams admitted his part in the robbery and was made a ward of the juvenile court.

At the trial defendant objected to testimony of Mrs. Abraham identifying him as one of the robbers; claimed her identification was the product of the pretrial identification by photograph; contended the pretrial identification procedure was illegal because it denied him his right to counsel and due process of law; and asked permission to conduct a voir dire examination of witnesses to establish this contention. His request was granted. Following presentation of evidence on the issue the court overruled the objection to the in-court identification.

Defendant was not represented by counsel at the identification-by-photograph proceeding and, relying on this fact, cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 1955, 18 L.Ed.2d 1178, in support of his position the proceeding was illegal because it denied him his right to counsel.

The rule an accused is entitled to be represented by counsel at a pretrial lineup identification, declared in Wade and Gilbert, does not apply to a pretrial identification by photograph under circumstances such as in this case. (People v. Fowler, 1 Cal.3d 335, 350, 82 Cal.Rptr. 363, 461 P.2d 643; People v. Wendling, 4 Cal.App.3d 317, 320, 84 Cal.Rptr. 310; People v. Short, 269 Cal.App.2d 746, 748, 75 Cal.Rptr. 156; People v. Padgitt, 264 Cal.App.2d 443, 449, 70 Cal.Rptr. 345; see also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247; People v. Floyd, 1 Cal.3d 694, 714, 83 Cal.Rptr. 608, 464 P.2d 64.) Basic to the decisions in Wade and Gilbert is the conclusion a lineup identification affords opportunities for suggestive influences prejudicial to the accused not readily detectable by him, and the presence of counsel is necessary to enable reconstruction of those influences at the trial to assure a fair determination of the reliability of the identification. (United States v. Wade, Supra, 388 U.S. 218, 229, 230, 87 S.Ct. 1926, 1933--1934.) Any suggestive influences present at a photoidentification in large measure are preserved by the photographic evidence, or readily detectable by cross-examination of the participants. (Simmons v. United States, Supra, 390 U.S. 377, 384, 88 S.Ct. 967, 971; People v. Padgitt, Supra, 264 Cal.App.2d 443, 449, 70 Cal.Rptr. 345.) Furthermore, countervailing policy considerations may outweigh the need for the presence of counsel during identification procedures. (Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (Cert. denied (1968) 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164); People v. Colgain, 276 A.C.A. 147, 154--156, 80 Cal.Rptr. 659; People v. Almengor, 268 Cal.App.2d 614, 617, 74 Cal.Rptr. 213; see also United States v. Wade, Supra, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937.) Identification by photograph is an effective tool in criminal law enforcement; in most instances occurs before the filing of charges, as a police investigatory procedure; and affords minimal opportunity to exert suggestive influences not detectable at trial. In light of the foregoing, the need to obtain identification of a suspect by photograph, whether or not he is in custody, as a police practice in the detection of crimes outweighs the need for the presence of counsel representing the suspect during such identification. (See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971.)

Defendant's contention the photo-identification in the case at bench was unfair, and for this reason denied him due process, on appeal must be considered in light of fundamental rules applicable in the premises. The order of the trial court overruling his objection to the admission of in-court identification testimony, after the voir dire hearing respecting the alleged illegality of the photo-identification procedure, implies a finding the photo-identification procedure complied with due process requirements. (Griffith Co. v. San Diego Col. for Women, 45 Cal.2d 501, 507, 289 P.2d 476; Estate of Rule, 25 Cal.2d 1, 10, 152 P.2d 1003.) This finding will be sustained if supported by any substantial evidence, direct or indirect, contradicted or uncontradicted. (Grainger v. Antoyan, 48 Cal.2d 805, 807, 313 P.2d 848; Cottle v. Gibbon, 200 Cal.App.2d 1, 4, 19 Cal.Rptr. 82.) A defendant charging denial of due process in an identification procedure has the burden of proving the charge. (People v. Caruso, 68 Cal.2d 183, 194, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Burns, 270 Cal.App.2d 238, 244, 75 Cal.Rptr. 688; People v. Romero, 263 Cal.App.2d 590, 593, 69 Cal.Rptr. 748.) Denial of due process is not established unless the evidence shows 'the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification'. (Simmons v. United States, Supra, 390 U.S. 377, 384, 88 S.Ct. 967, 971; People v. Short, Supra, 269 Cal.App.2d 746, 748, 75 Cal.Rptr. 156; People v. Laursen, 264 Cal.App.2d 932, 942, 945, 71 Cal.Rptr. 71; People v. Padgitt, Supra, 264 Cal.App.2d 443, 449--450, 70 Cal.Rptr. 345.)

At the conclusion of the hearing in response to defendant's contention the photo-identification by Mrs. Abraham denied him due process, there was substantial evidence showing Mrs. Abraham at the time of the robbery had ample opportunity to observe defendant's full face and general appearance; immediately thereafter described defendant to the police; defendant then was placed in custody; his photograph was taken; this photograph, together with seven others, including a photograph of his companion at the time of his arrest, were submitted to Mrs. Abraham with the suggestion the photographs included those of two men suspected of being the robbers; there was no suggestion respecting which of these photographs were those of the suspects; in selecting the photographs other than those of defendant and Williams, the police chose from their files photographs of men whose age, complexion, physical features and build were similar to those of defendant and Williams; Mrs. Abraham unhesitatingly selected the photograph of defendant as the robber with the gun; and selected the photograph of Henry as the man accompanying him. It was shown when defendant entered the market Mrs. Abraham had an unobstructed view of his face; thereafter he placed a sack over his head which he used as a mask; but he removed the sack when he emptied the cash register, at which time she 'studied all his face'. The...