People v. Keel

• Decision Date: 24 April 1969
• Docket Number: Cr. 14803
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James KEEL, Defendant and Appellant.

Page 298

77 Cal.Rptr. 298

272 Cal.App.2d 275

The PEOPLE of the State of California, Plaintiff and Respondent, v. James KEEL, Defendant and Appellant.

Cr. 14803.

Court of Appeal, Second District, Division 5, California.

April 24, 1969.

Donald F. Roeschke, Tarzana, under appointment by the Court of Appeal, for defendant and appellant.

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

KAUS, Presiding Justice.

Defendant was convicted of burglary and sentenced to state prison. The only question posed by appellant is whether his conviction is constitutionally defective because the record affords no evidence whatsoever that a lineup, at which the victim of the burglary identified defendant, was fair. Neither, for that matter, was there any evidence that the lineup was unfair. The question raised, then, is not whether in the event of conflicting evidence or conflicting inferences the People or the defendant have the burden of persuasion on the question of fairness. (Evid.Code § 115.) Rather, it is a problem of who has the burden of going forward with some evidence on the issue. (Evid.Code § 110.) However, for reasons stated below, we do not reach the issue.

The burglary in question was committed February 8, 1967. The preliminary hearing at which the victim testified concerning the lineup was held on March 27. The trial started on June 21, 1967. On that date a stipulation that the transcript of the preliminary hearing could be considered as evidence was entered into. The trial then resumed on July 27 and concluded on August 3.

Stovall v. Denno, 388 U.S. 293, 299--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, on which defendant must necessarily rely as the major premise to his point, was decided on June 12, 1967. This is therefore not a case in which he can claim that lack of foreknowledge of the law prevented him from making a proper record. (Cf. People v. Blackburn, 260 Cal.App.2d 35, 44, 66 Cal.Rptr. 845.) Stovall had been decided more than seven weeks before the trial in the instant case concluded.

The entire testimony concerning the lineup consisted of the following questions and answers elicited on cross-examination: '* * * Q And did you identify somebody off of the stage as the people who had been taking your stereo-television out and who had put it back? A Right. Q All right. How many did you identify at that time? A Two. Q Were they in the same lineup, or was there more than one lineup? A There was one lineup. Q How many were there on the stage, on this one lineup? A About seven or eight people. A All right. Now, was it only one time that there were seven or eight people on the stage, or were these seven or eight asked to leave and then another seven or eight came back?--if you remember. A No, I think, one lineup. Q And which two did you identify in this lineup? A These two gentlemen here. Q Mr. Keel and Mr. Salone? A Right. * * *'

California Supreme Court decisions have not, as far as we are aware, decided the precise point defendant wants us to decide. Although, in People v. Caruso, 68 Cal.2d 183, 184, 65 Cal.Rptr. 336, 436 P.2d 336, the Supreme Court said that '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 (1205),' arguably this is only a dictum on the point, since in Caruso the court found that unfairness existed as a matter of law. Possibly, too, the phrase in Stovall v. Denno to which the court refers in Caruso--'* * * it remains open to all persons to allege and prove, as Stovall attempts to do in this case, that the confrontation resulted in such unfairness that it infringed his right to due process of law * * *'--is not determinative, since it was made in the context of a collateral attack on a state judgment in a federal...