State v. Branch

• Decision Date: 16 June 1972
• Docket Number: 2511,Nos. 2198,s. 2198
• Citation: 498 P.2d 218,108 Ariz. 351
• Parties: STATE of Arizona, Appellee, v. Willie BRANCH, Appellant.
• Court: Arizona Supreme Court

Page 218

498 P.2d 218

108 Ariz. 351

STATE of Arizona, Appellee, v. Willie BRANCH, Appellant.

Nos. 2198, 2511.

Supreme Court of Arizona, In Banc.

June 16, 1972.

Gary K. Nelson, Atty. Gen., by Mary Z. Chandler and Paul J. Prato, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

HOLOHAN, Justice:

The defendant, Willie Branch, was charged by information with robbery and with aggravated battery in a separate information. By stipulation, the matters were consolidated for trial, and the defendant was convicted of battery and aggravated battery.

Separate appeals were taken from the convictions in the Superior Court, and we assumed jurisdiction, consolidating the matters for purposes of this opinion.

The questions presented are whether battery is a lesser included offense of robbery; whether the defendant is entitled to counsel at a pre-information lineup; whether law enforcement officers can be competent witnesses of a defendant's reputation in the community where such issue becomes relevant; and whether the prosecutor committed error in his remarks to the jury during oral argument.

The victim named in both informations was the same person. The evidence discloses that victim with two friends stopped at the defendant's shoe shine parlor in downtown Phoenix. In a rapid series of events the victim was robbed of $16.00, his friends beaten, and the victim himself attacked and beaten when he tried to find safety in the car of a friend. The police arrived on the scene, and the victim and his friends were taken to the hospital for treatment.

The defendant was arrested, and the following day a lineup was conducted at which one of the witnesses picked the defendant from a group of five men as the one who had attacked the victim. Before the victim left the hospital, he was shown pictures of five men, and he picked the defendant out as the man who had beaten him. The victim and two other witnesses made in-court identifications of Branch based on their memory of the attack and not, they testified, on the basis of the lineup or pictures.

At the trial, counsel for the defendant moved to suppress the in-court identification as the product of an improper lineup, that is, one in which the defendant was not advised of his right to counsel. The court held a hearing to determine if the defendant was advised of his right to counsel and also to determine if the circumstances of the lineup were suggestive. He determined that there was no suggestiveness about the lineup, but the trial court left the question to the jury of whether defendant was advised of his right to counsel. The defendant urges that this procedure was error because the court must first determine as a matter of law whether the defendant was afforded his constitutional rights. It is maintained that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), supports this position.

The procedure followed by the trial court was not proper. The duty to decide whether a defendant has been afforded his rights rests with the court. However, counsel's argument presupposes that there is indeed a right to counsel at a pre-information lineup.

The cases of U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), were cited as authority for the proposition that a lineup is a critical stage of criminal proceedings and that the defendant is entitled to be represented by counsel at such time.

Wade and Gilbert involved only post-indictment lineups, however, and the present case involves a pre-information lineup. We said in State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), that 'we are not, however, prepared at this time to extend the application of Wade and Gilbert to pre-indictment or pre-information situations * * *,' 104 Ariz. at 382, 453 P.2d at 953. This position is supported by the very recent case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, decided June 7, 1972. It was not required that the defendant be furnished counsel or advised that he could have counsel at the lineup; nor was the lineup unfair or overly suggestive. The motion to suppress should have been denied.

The defendant challenges the procedure of the prosecution calling a police officer to offer testimony as to defendant's reputation for truth and veracity. The defense concedes that the defendant having testified as a witness was subject to impeachment by the offer of testimony by competent witnesses to show that the defendant has a poor or bad reputation for truth in the community in which the defendant resides.

The defendant urges that a police officer would never be in a position to know the defendant's reputation for veracity because he resides in a community in which the police would have no means of communication with the residents. Counsel for defendant asserts that the defendant resides in the 'ghetto.' Counsel argues that it is a 'logical absurdity to say that a policeman can go into the ghetto and ascertain a black man's reputation for truth and veracity.'

The thrust of this argument is to attack only the veracity of the police officers, not their competency as witnesses. The trial court required that the prosecution show the familiarity of the police officers with the area of the defendant's business, and their means and manner of arriving at their conclusion that the defendant had a bad reputation for truth and veracity. If the counsel for the defense believed that the officer was lying, he had an opportunity on cross-examination to show that the witness was biased or that there was a defect in the capacity of the witness to observe the matters to which he has testified. The defense may also call witnesses to show that the defendant's reputation for truth and veracity is good, contrary to the evidence presented by the state. Baumgartner v. State, 20 Ariz. 157, 178 P. 30 (1919).

We find nothing improper in admitting the testimony offered by the police officer witnesses concerning the issue of the defendant's veracity.

In his remarks to the jury, the defense counsel commented upon the failure of the state to present testimony from members of the black community in regard to the defendant's reputation for truth and veracity. The state's witnesses who testified about Branch's credibility were three police officers, and the defense counsel maintained that only someone living in the defendant's neighborhood would know his reputation for credibility.

In response to the above, the deputy county attorney stated:

'* * * Why don't we call some Negro people? Well, these officers deal down there every day. They talk to the Negro citizens. They deal with problems down in that area, and I submit to you they know his reputation as well as any Negro. Do you think for one minute--I don't mean to bore you, but do you think for one minute that we are going to be able to get a Negro to come and testify against that man? That Negro will be so scared to come up from the south side to testify against this man, that is why we could never get anybody. That is why. He would be scared to come and testify against Mr....