Reed v. State

• Decision Date: 15 April 1971
• Citation: 281 A.2d 142
• Parties: Cleveland REED, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. Anthony HAWKINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 142

281 A.2d 142

Cleveland REED, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Anthony HAWKINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

April 15, 1971.

Upon appeal from Superior Court. Affirmed.

Bernard Balick, Asst. Public Defender, Wilmington, for Cleveland Reed, defendant below, appellant.

Stanley C. Lowicki, of O'Donnell, Hughes & Lowicki, Wilmington, for Anthony Hawkins, defendant below, appellant.

Francis Reardon, State Prosecutor, and John G. Mulford, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

HARRMANN, Justice:

In these appeals from robbery convictions, we are called upon to decide whether an accused in custody is entitled to the presence of counsel at a post-arrest identification by the victim of a photograph of the accused. We are also required to review the admissibility of certain evidence asserted to have been obtained by the police during, and as the result of, unlawful arrests and detentions.

I.

The defendants, Cleveland Reed and Anthony Hawkins, were tried and convicted together of the armed robbery of a merchant at about 5:00 p.m. The basic facts of the arrests and detentions of the defendants, the asserted illegality of which forms the foundation of these appeals, are substantially undisputed:

A few hours after the robbery, the police received a 'tip' from an informer implicating the defendants in the offense. The police went to Reed's home immediately and arrested him upon the basis of the affidavit of a bank official, which the police had been holding on file, alleging a forgery by Reed. Hawkins, a brother-in-law of Reed, lived in the same house. He was arrested simultaneously in the back yard or driveway of the residence on a charge of hindering a police officer in the performance of his duties by falsifying his age in response to the officer's question. ¹ He was 18 years old, but said that he was 16. The falsehood was discovered by the officer immediately from identification papers produced by Hawkins upon the officer's request. Neither of the arrests was supported by an arrest warrant.

The defendants were brought to Police Central at about midnight. Questioning of Hawkins about the robbery was commenced immediately, following Miranda ² type warnings. Within 30 minutes, Hawkins had confessed that he and Reed had committed the robbery. Reed refused to make any statement. After making the confession, Hawkins led the police along the escape route and to the places where evidence was hidden, including clothing worn by Hawkins during the commission of the crime, the hammer used by him in the assault on the victim, and some of the stolen money. By 2:00 a.m., both defendants had been charged and booked for the robbery on the bases of Hawkins' statements and disclosures. The next day, police photographs of the defendants were taken. About a week later, the victim identified the defendants from the photographs which were shown to the victim with photographs of others; neither the defendant nor counsel was present.

At the trial, Hawkins' statement was not introduced into evidence. The items of clothing and the hammer, disclosed to the police by Hawkins, were admitted in evidence; and the victim made an in-court identification of the defendants. The details of the photographic identification by the victim, including the photographs themselves, were introduced in evidence by the State. Hawkins appeals on the grounds of unlawful arrest, procurement of evidence during unlawful detention, and failure to give proper Miranda warnings. Reed appeals on the grounds (1) that the photographs were taken during a period of unlawful detention; (2) that the photographs were identified by the victim in the absence of counsel, in violation of the defendant's Sixth Amendment rights, thereby tainting the evidence of the out-of-court identification proceeding and the in-court identification; and (3) that he was entitled to a separate trial.

II.

As to Hawkins:

We hold that Hawkins was lawfully arrested and detained under the City Ordinance. A police officer is hindered in the performance of his duty and in the conduct of an investigation when a suspect of 18 years of age lies and gives his age as 16. Under our law, a 16 year old offender is a juvenile delinquent subject to the processes and procedures of the Family Court, whereas an 18 year old offender is subject as an adult to the ordinary processes of the administration of criminal justice. A police officer's duties vary for each such situation, commencing with the arrest and the procedures to be followed immediately subsequent to the arrest. Since an arrest may be made without a warrant for a misdemeanor committed in the presence of an officer (11 Del.C. § 1906), the arrest here was lawful; the detention, therefore, was legal for the brief period during which Hawkins was interrogated. It follows that the evidence disclosed by Hawkins was not the impermissible fruit of an illegal detention. Compare Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969).

We hold, too, that the requirements of Miranda were met in this case. The defendant contends that the Miranda warnings, given him before his statement was taken by the police, were inadequate in that he was young and under the influence of alcoholic liquor, in that the warnings were too hurried and formalistic to be meaningful to him, and in that under all of the circumstances the midnight-police-station-situation produced an involuntary statement which poisoned any disclosures later made.

The testimony of the police officers and of Hawkins was heard by the Trial Judge. He observed their demeanor upon the witness stand; he found as a matter of fact that the Miranda warnings were adequately given and that Hawkins' statement was voluntary. ³ We have reviewed the record and find no sufficient basis to differ with the Trial Judge in this phase of the case. Accordingly, his findings and conclusions in this regard will not be disturbed.

III.

As to Reed:

We hold that the photographs were not taken during an unlawful detention. Reed was formally charged with the robbery at 2:00 a.m. Reed's detention thereafter, and during the following day when the photographs were taken, was a legal detention. Compare Vorhauer v. State, Del.Supr., 212 A.2d 886 (1965); Webster v. State, Del.Supr., 213 A.2d 298 (1965); and Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969).

Reed also contends that he was entitled to the presence of counsel when the victim identified him from the photographs; that, as a consequence, both the evidence of the photographic identification and the in-court identification were inadmissible. Reed relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) in which it was held that a suspect or accused had a Sixth Amendment right to counsel at a post-indictment police line-up in which he appeared, if a subsequent in-court identification, influenced by that line-up, is to be admitted in evidence.

We decline to extend the Wade rule to the examination by the victim of photographs of the accused and an out-of-court identification therefrom in the absence of the accused, as in the instant case. Under the growing weight of authority, there is no constitutional right to counsel at a post-arrest showing of photographs at which the defendant is not present; it being held that such photographic identification proceeding is not such 'confrontation' or 'exhibition' of the accused vis a vis the witness as to come within the rule of Wade and the related cases of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See People v. Lawrence, 4 Cal.3d 273, 93 Cal.Rptr. 204, 481 P.2d 212 (1971); People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685 (1970).

We recognize that in some jurisdictions, including our own Third Circuit Court of Appeals, it has been held that there is no substantial difference between a line-up of photographs of persons in custody and a line-up of the persons themselves, insofar as the constitutional safeguards required by Wade are concerned; that, otherwise, the line-up requirements of Wade are subject to easy evasion. See United States v. Zeiler (3 Cir.) 427 F.2d 1305 (1970) ⁴; Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970); United States v. Marson (4 Cir.) 408 F.2d 644 (1968); Thompson v. Nevada, 85 Nev. 134, 451 P.2d 704 (1969). We prefer, however, the reasoning of the more recent decisions of the Supreme Courts of California and Illinois in Lawrence and Martin, supra, and of United States v. Ballard (5 Cir.) 423 F.2d 127 (1970); United States v. Robinson (7 Cir.) 406 F.2d 64 (1969); McGee v. United States (10 Cir.) 402 F.2d 434 (1968), cert. den. 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); and United States v. Bennett (2 Cir.) 409 F.2d 888, cert. den. Haywood v. United States, 396 U.S. 852, 90 S.Ct 113, 24 L.Ed.2d 101 (1969), wherein Judge Friendly stated:

'* * * to require that defense counsel be allowed or appointed to attended out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given (an accused) suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by lawyers on the other side and to see to it that all available defenses are proffered * * *.'

We agree with the rationale of the latter line of cases and conclude that a photographic identification proceeding, unattended by the defendant, is not such 'conf...