People v. Neal

• Decision Date: 15 April 1969
• Docket Number: Cr. 7153
• Citation: 77 Cal.Rptr. 65,271 Cal.App.2d 826
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Willie NEAL, Jr., Defendant and Appellant.

Page 65

77 Cal.Rptr. 65

271 Cal.App.2d 826

PEOPLE of the State of California, Plaintiff and Respondent, v. Willie NEAL, Jr., Defendant and Appellant.

Cr. 7153.

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

April 15, 1969.

Hearing Denied June 11, 1969.

Lynn E. Higgins, Oakland, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, John P. Oakes, 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 first degree (Pen.Code, § 211). Defendant contends: (1) that he was denied due process of law because an unnecessarily suggestive identification procedure was used to connect him with the crime; (2) that he was denied the right of cross-examination because of the failure of the prosecution to make available certain photographs used in the identification procedure; and (3) that he was denied due process of law and equal protection of the law because of the method used in the selection of the jury. For reasons set out below, we find no merit in any of these contentions.

The Facts

Some time shortly before 4:00 p.m. on September 15, 1967, defendant came into the offices of Beneficial Finance Company on MacArthur Boulevard in Oakland. At that time Robert Fannon, a company employee, observed defendant sitting in one of the office booths. This booth was situated approximately five and one-half feet from Fannon's desk. After conversing briefly with defendant, Fannon left the office on business errands and was not present when the subsequent robbery took place.

Another employee, Mrs. Rosemarie Gish, approached defendant and asked if she could be of assistance, but she returned to her desk after defendant replied that he wanted to see only the manager. At approximately 4:10 p.m. Donald Good, the office manager, joined defendant in the booth. Defendant inquired about the possibility of borrowing some money on a 1962 Chevrolet. The manager checked the automobile Blue Book and after quoting a potential loan figure, he reached in a drawer for an application form. When he looked up defendant was pointing a gun directly at him. The manager then stood up and moved to the front of the office while defendant jumped over the counter and into the inner part of the office. Defendant then gave a paper sack to another employee, Miss Carmen Sandoval, and ordered her to put all the money in the sack. Miss Sandoval emptied her cash drawer, placing between $300 and $400 in the sack which defendant had given her. After the manager convinced defendant that there was no additional money in the office safe, the employees were herded into a back room of the office and defendant left the premises. Defendant took the stand and testified that he was not in Oakland on the day of the robbery.

The Identification Procedure

Mr. Fannon, Mrs. Gish, Miss Sandoval, and Mr. Good each identified defendant in court during the course of the trial. No objection was interposed to this identification. On cross-examination by defense counsel it was developed that each of these witnesses had made a pretrial identification of defendant after viewing photographs. This examination disclosed that shortly after the day of the robbery certain employees were taken to the Oakland police station ¹ for the purpose of assisting in identifying the robber. Mrs. Gish and Janet Clayton went to the station one morning and proceeded to go together through hundreds of pictures in the file before both of them came upon the picture of defendant and identified him as the person who had robbed the office. Later that same day Mr. Good and Miss Sandoval went to the station and also looked at several hundred photographs without identifying the robber. At this time the photograph of defendant was not in the file because it had been removed for comparison purposes. Later Miss Sandoval was handed a group of eight or nine photographs and identified a picture of defendant as the robber. Mr. Good was then given the same group of photographs and made the same identification. ² He testified that he and Miss Sandoval viewed the group of pictures separately when they were sitting approximately three or four feet apart and he further testified that he did not see the photograph chosen by Miss Sandoval. ³ Mr. Fannon identified a photograph of defendant which was shown to him at his office. He was shown only the one picture and he testified that his identification was predicated on the fact that the person in the photograph had a scar on his nose.

Inspector Alex Cunningham, who was in charge of the investigation of the subject robbery, was subsequently called as a witness for defendant. His testimony with respect to the procedure followed by Mrs. Gish and Miss Clayton in making the photographic identification was substantially the same as testified to by these witnesses. He testified that each of these witnesses were looking at different files and that they came upon defendant's picture at different times. He also stated that he asked them to try and find the suspect's picture, or anybody that 'looked close to him,' and that then he went about other business until the ladies came to him and showed him a picture of defendant.

With respect to the procedure followed by Miss Sandoval and Good, Cunningham testified that these persons were given eight pictures among which was a picture of defendant; that the other seven photographs were taken from his desk where they were kept with a group of pictures for comparison purposes; that he picked out seven that were 'similar' to that of defendant; that the seven were of 'colored people'; that Miss Sandoval and Good looked at the eight photographs separately and each picked out defendant's picture as that of the robber; and that after this identification Cunningham asked Miss Sandoval and Good to look through the mug file containing hundreds of photographs; that defendant's picture was not then among these photographs; and that he did this in fairness to defendant 'to see if there was any other pictures.'

Defendant now argues that he was denied due process because a suggestive identification procedure was used to connect him with the crime. He challenges only the fairness of the identification of photographs of himself, and does not question the basic fairness of the subsequent lineup procedure. Defendant particularly questions the fact that the witnesses were allowed to view the photographs in pairs, ⁴ and suggests that this procedure allowed unnecessary reinforcement of possibly erroneous identification.

Adverting to pretrial photographic procedures, we note that, absent unfair suggestiveness, the employment of photographs as an investigative tool is an approved procedure. (Simmons v. United States, 390 U.S. 337, 88 S.Ct. 967, 19 L.Ed.2d 1247.) The applicable standard is set out in Simmons as follows: 'convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972--1973, 18 L.Ed.2d 1199 and with decisions of other courts on the question of identification by photograph. (Fn. omitted.)' (P. 384, 88 S.Ct. p. 971.) (See also People v. Laursen, 264 A.C.A. 1069, 1080--1081, 71 Cal.Rptr. 71; People v. Bolt, 265 A.C.A. 692, 694, 71 Cal.Rptr. 511.) Accordingly, where the identification process is so suggestive as to possibly lead to mistaken identification a denial of due process may result. (People v. Feggans, 67 Cal.2d 444, 448--449, 62 Cal.Rptr. 419, 432 P.2d 21; Stovall v. Denno, supra, at pp. 301--302, 87 S.Ct. 1967.)

In determining whether pretrial photographic procedures were impermissibly suggestive it appears to us that, by analogy, the procedure invoked in cases involving pretrial lineup identifications is applicable. Accordingly, where it is claimed that the courtroom identification is the result of an impermissibly suggestive pretrial photographic procedure, the trial court must determine whether such procedure was unfair; and if there are conflicting factual versions, the conflict must be resolved by the trial judge. (People v. Douglas, 259 Cal.App.2d 694, 698, 66 Cal.Rptr. 492.) If the trial court determines that the photographic identification procedure was unfair, the identifying witness is not precluded from identifying the defendant in the courtroom if the People can establish that the courtroom identification has an independent origin. (United States v. Wade, 388 U.S. 218, 239--242, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; People v. Stoner, 65 Cal.2d 595, 601--602, 55 Cal.Rptr. 897, 422 P.2d 585; People v. Douglas, supra.) On the other hand, if the trial court decides that the photographic procedures were fair, the defendant may, nevertheless, offer before the jury such evidence of unfairness as he can produce, and such evidence affects the weight rather than the admissibility of the identification. (People v. Douglas, supra; Evid. Code, § 406.)

In the instant case defendant made no objection to the in-court identification at the time the witnesses made such identification, nor did he make any claim of unfairness in the pretrial photographic procedures at the time the witnesses testified. He did, however, make a motion to strike the testimony of the witnesses on the basis of a denial of due process after the prosecution had rested its case, and, again, at the conclusion of the case. ⁵ These motions were denied. It is apparent that, since the trial judge was not called upon to initially determine the...