Pisano v. State

• Decision Date: 03 November 1981
• Docket Number: No. F-79-339,F-79-339
• Citation: 636 P.2d 358
• Parties: Roy A. PISANO, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 358

636 P.2d 358

Roy A. PISANO, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-339.

Court of Criminal Appeals of Oklahoma.

Nov. 3, 1981.

An appeal from the District Court of Oklahoma County, Stewart M. Hunter, Judge.

Roy A. Pisano, appellant, was convicted of Robbery With Firearms in Oklahoma County District Court Case No. CRF-78-3728, and sentenced to fifteen (15) years imprisonment, and appeals.

AFFIRMED.

Gary Peterson, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Macy, Dist. Atty., Susan Werner, Asst. Dist. Atty., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

Roy A. Pisano was convicted of Robbery With Firearms in Oklahoma County District Court. He was sentenced to fifteen (15) years' imprisonment.

The evidence indicates that on August 28, 1978, the appellant and four (4) companions visited three (3) jewelry stores including Samuel Gordon's in Oklahoma City. The five spent approximately thirty (30) minutes in Samuel Gordon's at that time. The next morning, Pisano, a co-defendant, and a Mr. Kinny returned to Samuel Gordon's and committed the robbery. Debra Sue Evans, the appellant's girlfriend, testified that on the morning of August 29th, Pisano returned to their apartment with the jewelry and money that had been taken from the store. Additionally, two (2) employees of Samuel Gordon's identified Pisano as one of the men who had robbed the store.

The appellant contends his constitutional rights were violated by the trial court's refusal to allow him to testify regarding the suggestiveness of a pretrial lineup. We first note that he was denied counsel at the lineup which was conducted after the information had been filed. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court ruled that a post-indictment lineup conducted without the assistance of counsel or a valid waiver of assistance, was a violation of the Sixth Amendment. However, evidence of the lineup identification of appellant by two (2) witnesses was not admitted at trial.

In Thompson v. State, 438 P.2d 287 (Okl.Cr.1968), this Court recognized various factors to be considered in determining whether the witness had an independent source for the identification which would remove the taint of the illegal lineup. These factors were set out by the Supreme Court in United States v. Wade, supra, at 388 U.S. 241, 87 S.Ct. at 1939 as follows:

"... the prior opportunity to observe the alleged criminal act, the existence of any discrepancies between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification of the defendant by picture prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and lineup identification."

In this case, both identifying witnesses viewed the defendant in a well-lighted area the day before the robbery and again on the day of the robbery. Witness Roach failed to identify Pisano in a photographic display before the lineup. Witness Gorschic successfully identified the appellant's photograph. Both witnesses testified at the in camera hearing that their identification was based on observation of the appellant at the jewelry store and not on the lineup. However, at the preliminary hearing, Roach testified that the lineup did aid her in-court identification.

Because of Roach's failure to identify the appellant prior to the lineup and her contradictory statements regarding the effect of that lineup, we find that her in-court identification should have been suppressed. However, Gorschic's testimony was clearly shown to have been free of any taint from the illegal lineup. Although Roach's testimony was improperly admitted, we find no reversible error since his identification was merely cumulative. Schneider v. State, 538 P.2d 1088 (Okl.Cr.1975).

In his second proposition, the appellant argues that he was unlawfully paraded while in handcuffs before the trial jurors. Title 22 O.S.1971, § 15, provides in part that a defendant "... in no event shall be tried before a jury while in chains or shackles." In this case, the appellant was not taken into the courtroom in handcuffs, but he was viewed in handcuffs by several jurors in the hallway outside. In Lowery v. State, 563 P.2d 1189 (Okl.Cr.1977), this Court ruled that the viewing of the defendant in handcuffs by several jurors outside the courtroom was not per se reversible error. Absent a showing that the occurrence was other than fortuitous or that the appellant suffered some prejudice, the Court finds this argument without merit.

The third assertion centers on an alleged conflict of interest which deprived the appellant of his right to effective counsel. The two co-defendants were each represented by attorneys from the Public Defender's Office. The appellant and his co-defendant waived the right to have a private attorney appointed. In Cummings v. State, 578 P.2d...