People v. Martin

• Decision Date: 04 June 1969
• Docket Number: Cr. 7298
• Citation: 78 Cal.Rptr. 552
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Kenneth MARTIN, Defendant and Appellant.

Page 552

78 Cal.Rptr. 552

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Kenneth MARTIN, Defendant and Appellant.

Cr. 7298.

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

June 4, 1969.

Rehearing Denied July 3, 1969.

Gene A. Noland, by appointment of the Court of Appeal, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Eric Collins, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction, following a jury trial, of robbery in the second degree (Pen.Code, § 211). The chief contention on appeal involves the admissibility of evidence of the identity of defendant.

Statement of Facts

At approximately 7:45 p.m. on January 5, 1968, Mary Y. McCauley came out of the Vallejo Bible Church carrying two folding chairs which she intended to put in her automobile which was parked nearby. A young Negro male walked in front of her and looked at her in such a way that she was frightened. Because she was fearful, she simply placed the chairs against the automobile and then attempted to go back into the church. While she was trying to open the church door, another young Negro male came up to her and tugged at her purse. The purse strap broke and Mrs. McCauley fell into the church. When she recovered herself both the purse and the young men were gone. The struggle for the purse took about a minute and one-half and because they were then at very close quarters, Mrs. McCauley was able to get a close look at the face of the robber. Among other things, the purse contained about $106.00. Mrs. McCauley promptly called the police.

That same evening at about 9:15 p.m., Officers Rechner and Lyon of the Vallejo Police Department stopped an automobile in which defendant was a passenger. Rechner told defendant that a crime had been committed and that defendant closely resembled the person responsible. The officer asked defendant if he would come to the police station and told him that if he were cleared the police would provide him with transportation from the station. At this time defendant was wearing a longsleeved black sweater, dark trousers and a light shirt with a large collar. Defendant was turned over to Detective-Sergeant Lynch, the investigating officer. Rechner told Lynch that defendant was at the station for viewing and was not under arrest. At this time defendant had not been advised of any constitutional rights.

Meanwhile, Mrs. McCauley was at the police station where she initially looked at a number of pictures in an attempt to identify the robber. She did not find a picture of defendant among the photographs which she reviewed. Next she viewed two Negro males through a one-way mirror. During the viewing these two men were accompanied by an individual in civilian clothing. One of the men was immediately rejected by Mrs. McCauley. Because he was the same height and wore dark clothes, she viewed the other a little longer before deciding he was not the robber. In the company of policewoman Birch, Mrs. McCauley next viewed defendant through the one-way mirror. Defendant was accompanied by a uniformed police officer. As soon as Mrs. McCauley looked through the one-way mirror she said to Officer Birch, 'That is the face of the man that took my purse.' However, she observed that defendant did not have on a white collar at the time the purse was snatched. Policewoman Birch testified that Mrs. McCauley stated that she was positive this was the man, but could not definitely swear to his identity. ¹ Mrs. McCauley denied that she had made such a statement, and maintained that any uncertainty on her part was based on the white collar. The viewing took place at 9:30 a.m. At about 1:00 a.m. the next morning the police telephoned Mrs. McCauley to ask her to return to the station to again identify defendant. She refused because she was sure in her mind that defendant was the robber. ² Some time after defendant had been identified by Mrs. McCauley the investigating officer advised him of his constitutional rights. Defendant had $34 in his possession.

The abandoned purse was later found by a 12-year-old boy near his home and his mother turned it over to Mrs. McCauley's husband who is a Vallejo police officer. At the police station, Officer McCauley dusted the purse for fingerprints and lifted two smudged and apparently unreadable prints. These prints were not forwarded to any agency for identification.

Defendant took the stand and denied that he had snatched the purse. He stated that on the evening of the robbery he had played basketball with one Cleveland Gulley until about 6:30 p.m. They then went to Gulley's house where they played records and talked with Gulley's sister until about ten minutes after eight. After leaving Gulley's house they caught a ride with an Anthony Williams and were subsequently stopped by police. Gulley's young sister recalled that defendant was at her home at approximately 7:00 p.m. on a Friday sometime in January. During the course of cross-examination, defendant admitted to two prior convictions for robbery.

At the trial Mrs. McCauley, on direct examination, identified defendant as the person who had seized her purse. She was not examined by the district attorney concerning the identification at the police station, but she did mention on direct examination that she had made an out-of-court identification. The evidence concerning the prior identification of defendant at the police station was then elicited on cross-examination. After the People rested, the defense called Officer Birch and elicited her further testimony as to the out-of-court identification. At the conclusion of Officer Birch's testimony, and out of the presence of the jury, defendant moved to strike Mrs. McCauley's in-court identification. Defendant noted the absence of counsel at the time he was viewed by Mrs. McCauley and maintained that the evidence should be stricken under the doctrine established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. After listening to the arguments of counsel, the court called Mrs. McCauley as its own witness. The court questioned Mrs. McCauley carefully out of the presence of the jury and learned for the first time that two other individuals had been viewed before she viewed defendant, and that the police had not suggested to the witnesses that defendant was the person who had snatched the purse. The court then denied the motion to strike indicating that it could be renewed at the close of the case. ³ The motion was not renewed.

Application of the Wade Doctrine

1. The Right to Counsel

Defendant contends that he was entitled to counsel at the pretrial viewing through the one-way mirror at the police station. The main thrust of his argument is that because he was denied his constitutional right to counsel, Mrs. McCauley's in-court identification should consequently have been excluded under the doctrine established in United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926. In Wade it was held that the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings 'Where counsel's absence might derogate from the accused's right to a fair trial.' (P. 226, 87 S.Ct. p. 1932.) Accordingly, it was there held that a pretrial lineup conducted for identification purposes can constitute a critical prosecutive stage at which an accused is entitled to the aid of counsel. (See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) In the instant case it is quite clear that at the time defendant was identified at the police station he did not have the aid of counsel, and had not been advised of his right to counsel and had not waived any such right. ⁴ We, therefore, proceed to consider whether defendant's right to counsel had attached at the time he was identified at the police station.

Initially, we observe that although both Wade and Gilbert involve lineups consisting of more than one individual, the subject rule is also applicable to a single-person identification confrontation. (See Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and see United States v. Wade, supra, 388 U.S. 218, 229, 233, 87 S.Ct. 1926; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.) In Wade, moreover, the court specifically questioned the practice of using one-way mirrors for identification purposes. (United States v. Wade, supra, 388 U.S. at pp. 230-231, fn. 13, 87 S.Ct. 1926; see also Rivers v. United States, 5 Cir., 400 F.2d 935, 940.)

In the present case the People maintain that the right to counsel did not attach at the time of the viewing because defendant was not then under arrest and suspicion had not focused on him. They argue that because defendant was not arrested and was not the sole person under investigation, a 'critical stage' in the proceedings had not been reached. In light of the rationale of Wade we cannot agree with these contentions. In Wade the court pointed out the 'innumerable dangers' inherent in a 'compelled confrontation' and explained how these dangers might derogate from a fair trial. (388 U.S. at p. 228, 87 S.Ct. 1926.) Among the factors stressed by the court are the following: (1) That once a witness has identified an individual, he will be reluctant to retract or reconsider (p. 229, 87 S.Ct. 1926); (2) that the objectivity of a witness-victim is limited (p. 230, 87 S.Ct. 1926); (3) that risks of improper suggestion attend lineup procedures (pp. 229-230, 87 S.Ct. 1926); (4) that in the absence of counsel neither the defendant nor the witness are alert to the possibility of prejudice (p. 230, 87 S.Ct. 1926); and (5) that it is often most difficult for the defendant to accurately reconstruct the lineup during the course of the trial. (Pp. 230, 231-232, 87 S.Ct. 1926.)

In the...