State v. Barcley, s. 11346

• Decision Date: 12 February 1975
• Docket Number: 11347,Nos. 11346,s. 11346
• Citation: 88 S.D. 584,225 N.W.2d 875
• Parties: STATE of South Dakota, Plaintiff-Respondent, v. Homer Nelson BARCLEY, Defendant-Appellant.
• Court: South Dakota Supreme Court

Page 875

225 N.W.2d 875

88 S.D. 584

STATE of South Dakota, Plaintiff-Respondent, v. Homer Nelson BARCLEY, Defendant-Appellant.

Nos. 11346, 11347.

Supreme Court of South Dakota.

Feb. 12, 1975.

William G. Taylor, Jr., Sioux Falls, for defendant-appellant.

Kermit Sande, Atty. Gen., Marvin Truhe, Asst. Atty. Gen., Pierre, for plaintiff-respondent.

RENTTO, Judge. ^*

The defendant Homer Nelson Barcley was charged in one information with having committed the offense of forgery in the third degree on five occasions. In a second information he was accused of committing the same offense on another occasion and the offense of attempted forgery in the third degree. These were all charged in separate counts. Four crimes of forgery in the third degree were committed January 19, 1973, the remaining two and the one of attempted forgery on January 20, 1973. The charges against him are brought under SDCL 22--39--26 which makes trafficking in forgeries, forgery in the third degree.

The two informations were consolidated for trial and the defendant found guilty by the jury on all counts. Two judgments sentencing him to imprisonment on all counts were entered, one on each information. He appeals from both judgments with common assignments of error. They were argued here as one cause urging four reasons for reversal.

During the morning or early afternoon of Friday, January 19, 1973, the checkbook of the West Sioux Falls Hardware Store disappeared from its place of business. It contained numbered checks of the firm with its name printed thereon as the drawer of the checks and two lines for the signatures of the persons issuing them. That evening at about nine o'clock one of the checks, with an amount and the name of a payee written in, was cashed at a liquor store in Sioux Falls. On the first line below the name of the firm it was designated a payroll check, and on the second line was written the name of the owner of the firm. Later that night three similar checks were cashed at three other liquor stores.

On the morning of the following day, Saturday, January 20, 1973, two similar checks were cashed, one at a jewelry store and the other at an establishment selling radios. That night another similar check was presented to a liquor store for cashing. These seven checks were all made payable to the same payee.

The employee at the last mentioned liquor store, who had to approve all checks presented for cashing, had learned of the loss of the checkbook from the West Sioux Falls Hardware Store. When the check was presented to him he had another employee notify the police while he delayed his approval of it and engaged the man presenting it in conversation. The latter apparently soon sensed the situation and left the bar without getting the check cashed or having it returned to him, or consuming the drink he had ordered. The police arrived while he was in the bar's parking lot and took him into custody. The individual they arrested was the defendant.

That these instruments were forgeries is not disputed. Apparently at the preliminary hearing all of the parties to whom the checks in question were delivered, identified the defendant as the person who passed the checks to them. To prevent the state from using such evidence at the trial, he made a motion in limine to suppress their testimony relating to identification. It was grounded on the claim that pictures of the defendant had been exhibited to the witnesses before trial in such a manner as to render inadmissible their identification testimony at the trial. The motion was denied. He contends that in admitting this identification testimony the trial court erred.

After defendant was taken into custody the police had reason to believe that he was the one who had presented the other checks. Pursuing this they looked over some 200 photographs and assembled a collection of pictures of nine men, including one of him--Ex. 8, which they showed to the persons who had taken the checks. These were police photos, all about the same size, of the subjects in civilian dress with a frontal view and a right profile. All bore the dates on which they had been taken. Their procedure was to go to these people individually, or have them come to the police department, and ask them to look over the pictures to see if they could identify one of them as being the man who passed the check. This was done within a day or two after his arrest. None of them had any difficulty picking out the defendant.

In support of his position he cites and principally relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. In that case that court said:

'* * * 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.'

Other cases considering this subject are collected in the annotation 'Photographic Identification-Suggestiveness' in 39 A.L.R.3d 1000. Establishing that the procedures were impermissibly suggestive is the burden of the one seeking to suppress the evidence. The trial court found there was nothing suggestive about the procedures employed. The record supports that conclusion.

We think the rule above quoted from Simmons must be viewed and applied in the light of the influences that court thought contributed to errors in identifying criminals. They are set forth in this statement from the opinion:

'It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The change of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.'

None of the described factors are present in this case. On the contrary, all of the witnesses had from five to ten deliberate minutes to view the defendant under good lighting. In the collection was only one photograph of him among the nine and it was not emphasized in any manner. Further the police did not indicate, hint or suggest that Ex. 8 was the one they should select. That it was dated 1--21--73 does not appear to have been suggestive. It was not mentioned by anyone in the pretrial viewing.

Defendant's upper left eyelid drooped noticeably. This was mentioned by several of the witnesses in their in-court identification. On his behalf it is urged that this feature, of itself, made the photographic identification procedures impermissibly suggestive. We do not share this view. Obviously it made his identification an easier matter for the witnesses, but it did not make improper the employment of the photographs by the police. Concerning this the trial court observed that two other pictures, Ex. 2 and Ex. 4, indicate some similarity in the condition of the left eye. On this record we are satisfied there was no error in the identification of the defendant.

On the day his trial had been scheduled to begin, May 15, 1973, defendant asked to have it continued over the term....