People v. Slutts

• Decision Date: 11 March 1968
• Docket Number: Cr. 13833
• Citation: 259 Cal.App.2d 886,66 Cal.Rptr. 862
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry Lee SLUTTS, Defendant and Appellant.

Page 862

66 Cal.Rptr. 862

259 Cal.App.2d 886

The PEOPLE, Plaintiff and Respondent, v. Jerry Lee SLUTTS, Defendant and Appellant.

Cr. 13833.

Court of Appeal, Second District, Division 3, California.

March 11, 1968.

Frank G. King, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Nicholas C. Yost, Deputy Atty. Gen., for respondent.

MOSS, Associate Justice.

Defendant was adjudged guilty after trial to the court of indecent exposure with a prior conviction of the same offense, a felony under section 314, subdivision 1 of the Penal Code. Criminal proceedings were suspended and defendant was committed to Atascadero State Hospital for observation and diagnosis as a probable mentally disordered sex offender. Upon his return from the hospital he was sentenced to state prison. He appeals from the judgment.

The principal questions raised by this appeal are: (1) whether the technique employed by the police in securing the identification of defendant before trial through the use of photographs resulted in the denial to defendant of due process of law, and (2) whether the failure of the court to follow the proper procedure for finding him a probable mentally disordered sex offender constituted reversible error.

While Peggy Miller, aged 11, and her sister Sandra, aged 14, were playing in a park across the street from their home sometime between 5:30 p.m. and 8:00 p.m. on a week day in May, 1966, they saw a white man with a beard seated on the driver's side of a green car nearby. The man was wearing bathing trunks and a beach jacket. He did not wear glasses or a hat. Peggy was wearing a dress; Sandra had on shorts and a short blouse. While the girls were on the grass, the man left the car, walked over to a wall about ten feet from them, sat down and watched them for five or ten minutes. The man and the girls did not speak to each other. The girls then climbed upon the parallel bars which were about five feet high. The man returned to his car, drove it to a point nearby and rolled down the window. From where Peggy was sitting on the parallel bars she could see into the car. She saw the man expose his penis and handle it. Sandra did not see the man expose himself. Peggy told her sister to get down. As Sandra got down, the man made an indecent remark about her appearance. Peggy heard the man mumble, but did not hear what he said. The girls went over to the swings. The man drove the car near to where the girls were on the swings. At Peggy's suggestion the girls walked home which was about one-half block away. Peggy told her mother what had happened. The man followed in the car and parked alongside their house for a while and then left. Before leaving the park, the girls memorized the license number of the man's car. Peggy memorized the letters 'PJX' and Sandra the numbers '486'. The girls saw the car again the next day at a bowling alley. They noted that it had the same license plate and was a Plymouth Satellite. Inside the bowling alley Peggy saw the man again. She pointed him out to her parents. He was still wearing a beard. At the time of the incident in the park defendant wore a beard and was the registered owner of a blue-green Plymouth Belvedere Satellite bearing license number PJX 486.

Approximately eight days after the incident was reported to the police the investigating officer in the case, Barbara Perkins, visited Peggy and then Sandra at their respective schools. She showed Peggy five photographs including one photograph of defendant. The other photographs were of men having the same general appearance as defendant. None of the persons shown in the photographs wore a beard or a mustache. Peggy pointed out the picture of defendant as most closely resembling the man she had seen in the park. She said, 'This is close.' Officer Perkins then drew a beard and mustache on the picture of defendant. Officer Perkins testified that Peggy then said that 'she thought that he was the one.' Peggy, in her testimony, was more equivocal: 'Q. And she then drew a beard and a mustache on it? A. Yes. Q. Did it then look like the man? A. Not exactly. Q. Did you tell her that it looked like the man? A. No. Q. Did you tell her, 'This is the man'? A. No. Q. The picture that you saw that you said was close, was this a picture of the defendant, the man at the far end of the counsel table? A. I don't know.' About an hour later, Officer Perkins showed the photographs, including the one of defendant on which she had drawn a beard, to Sandra. Sandra pointed to the picture of defendant and said, 'This is the man that looks most like it.'

At the time defendant was arrested he appeared to have recently shaved off his beard and mustache because the skin which had been covered by his beard appeared to be lighter than the rest of his face. Both Peggy and Sandra identified defendant at the preliminary hearing as the man in the park, but at the trial they both refused to make a positive identification. ¹

The pretrial identification procedure was improper, but constituted harmless error.

In United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the United States Supreme Court observed, 'A major factor contributing to the high incidence of miscarriage of justice from mistaken identification had been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. * * * Moreover, '(i)t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial." (388 U.S. at pp. 228--229, 87 S.Ct. at p. 1933.)

A recognized ground of attack upon a conviction is the claim that the identification technique employed in the case was 'so unnecessarily suggestive and conducive to irreparable mistaken identification' that the defendant was denied due process of law. (Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Caruso, 68 Cal.2d --- ^a, 65 Cal.Rptr. 336, 436 P.2d 336.) The danger of unfair suggestion can be present where the identification procedure used is the presentation of photographs of possible suspects to the witness. (People v. Pedercine, 256 Cal.App.2d ---, --- ^b, 63 Cal.Rptr. 873.)

A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. Tested by this standard, the method used by Officer Perkins to procure the identification of defendant was fair as to Peggy, but unfair as to Sandra. The officer did not draw a beard on defendant's photograph until Peggy had first selected it as most closely resembling the man she had seen in the park. Since none of the men in the photographs had beards Peggy could not be positive that defendant was the man. Officer Perkins wanted to 'help' Peggy to make a more positive identification. To be completely fair she should have sketched beards on all of the photographs; instead she drew a beard only on defendant's picture. While this procedure was unfair to the extent that it tended to confirm the identification already made by Peggy, the unfairness did not produce the identification in the first instance, and so cannot be considered as ground for a claim of denial of due process of law. On the other hand, when Officer Perkins showed the photographs to Sandra, the beard was already drawn in on defendant's picture. There could be no doubt in Sandra's mind which man Officer Perkins suspected and therefore the identification by Sandra was procured by unfair means.

Whether the identification technique employed in a given case violates due process of law 'depends on the totality of the circumstances surrounding it.' (Stovall v. Denno, supra, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, see People v. Feggans, 67 Cal.2d ---, --- ^c, 62 Cal.Rptr. 419, 432 P.2d 21.) In Stovall v. Denno, supra, the defendant was shown to the victim of a stabbing in the hospital where the victim was confined for major surgery to save her life. While noting that the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup has been widely condemned, the Supreme Court concluded that the showing of the defendant to the victim in an immediate hospital confrontation was imperative because the victim was in danger of dying and was the only person who could exonerate the defendant. In the record before us no circumstances are revealed which justify the showing to Sandra of a photograph of the defendant with the beard drawn on it. Before going to Sandra's school, Officer Perkins should have obtained an unmarked photograph. Her failure to do so violated defendant's right to due process of law.

However, the error does not require reversal because it is our belief that it was harmless beyond a reasonable doubt. (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) The probative effect of the pretrial identification by Sandra was weakened by her testimony at the trial. It therefore seems unlikely that the error contributed significantly to the conviction. Our belief is confirmed by the closing remarks of the judge to whom the case was tried to the effect that he did not rely heavily upon the identification by the girls. There is other relevant evidence tending to prove that defendant was the man in the park. Evidence that Peggy had identified the defendant at the preliminary hearing was independent evidence of identity. (People v. Gould, 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 354 P.2d 865.) ² Defendant was proved without contradiction to have been the registered owner of the car in which the man was sitting and to have worn a beard at the time. A...