State v. Caffey

• Decision Date: 20 November 1986
• Docket Number: No. C,C
• Citation: 729 S.W.2d 266
• Parties: STATE of Tennessee, Appellee, v. Thomas CAFFEY, Appellant. C.A. 85-336-III 729 S.W.2d 266
• Court: Tennessee Court of Criminal Appeals

Page 266

729 S.W.2d 266

STATE of Tennessee, Appellee, v. Thomas CAFFEY, Appellant.

No. C.C.A. 85-336-III

729 S.W.2d 266

Court of Criminal Appeals of Tennessee at Nashville.

Nov. 20, 1986.

Permission to Appeal Denied by

Supreme Court March 9, 1987.

William L. Shulman, Senior Asst. Public Defender, Carlton M. Lewis, Office of Public Defender, Nashville, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Albert L. Partee, III, Asst. Atty. Gen., Mark Beveridge, Asst. Dist. Atty. Gen., Nashville, Tennessee, Thomas Thurman, Asst. Dist. Atty. Gen., Nashville, for appellee.

OPINION

BYERS, Judge.

A jury convicted the defendant, Thomas Caffey, on two counts of armed robbery and one count of felonious use of an automobile. The trial judge imposed two life sentences and a four-year term. All sentences are to be served consecutively to each other and to an unserved sentence in another state.

On appeal, the defendant says he should have been granted a writ of habeas corpus because of violations of the Interstate Compact on Detainers; he also says that evidence of an uncounselled lineup should have been suppressed and that prejudicial hearsay was admitted; finally, he contends the court improperly excused a juror who received extraneous information during the trial.

The judgments are affirmed.

The defendant first attacks the conduct of Oklahoma officials who surrendered custody of him for return to Tennessee. This matter forms a separate case and is not properly before us as part of the appeal from the judgment of conviction. Houston v. State, 567 S.W.2d 485 (Tenn.Cr.App.1978). The action of Oklahoma officials in extradition matters is not cognizable in this state. Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), is not to the contrary. In that case, the petitioner brought an action in Pennsylvania the custodial state, to prevent his involuntary transfer to New Jersey for trial.

In his second issue, the defendant relies on the rule that an accused has a constitutional right to counsel at a post-arrest, corporeal lineup, that when counsel is denied no evidence about the lineup may be admitted at trial, and finally, that no witness who viewed the illegal lineup may make an in-court identification unless the court first determines the identification is not tainted by the illegal lineup. See State v. Mitchell, 593 S.W.2d 280 (Tenn.1980).

In the trial court the defendant's due process claim that the lineup procedure was, in fact, unfairly suggestive was overwhelmingly refuted. He has not pursued this separate issue on appeal.

In this case counsel was not provided at the lineup and no jury-out hearing of the witnesses was conducted.

At a pre-trial hearing, a Metro officer testified that he investigated the reported armed robbery of a Nashville jewelry store on September 22, 1983. Witnesses gave compatible descriptions of the two perpetrators and reported that the men took a large quantity of merchandise from the owner and a service revolver from the store's security guard.

Meanwhile, Ohio officers were conducting an independent surveillance of a motel room in Sharonville, Ohio. They had received information about an anticipated drug deal that would involve jewelry. They had also been informed that Thomas Caffey, the defendant in this case, would be involved and they had in hand a fugitive warrant issued in Oklahoma against him. On the night of September 22-23, the surveillance culminated in the arrest of the defendant and others in the motel room, wherein was found cocaine, a large quantity of jewelry, and a service revolver. Shortly, a description of these items was sent out in a nationwide bulletin.

Metro officers received the bulletin, determined the items resembled those taken in the robbery, and on September 24 transported four witnesses to Ohio to view a lineup. Each witness identified Caffey as one of the robbers. A photographic and tape recorded record of the procedure was preserved and introduced at the suppression hearing. The officer's account of the procedure was corroborated by the witnesses at trial.

It is undisputed that Caffey requested an attorney and despite efforts to contact a public defender the lineup was conducted without counsel. It is also established that the defendant was arrested on a fugitive warrant. While he may have been charged on unspecified Ohio offenses, no charge had been lodged against him in Tennessee.

On these facts, we find no illegality in the lineup. The constitutional right of an accused to the assistance of counsel is triggered when the state initiates adversary judicial proceedings against him. In Mitchell our Supreme Court held this point is marked by the issuance of an arrest warrant, or when no warrant has issued, by a preliminary hearing, indictment, or presentment. A warrantless arrest does not trigger the guarantee. 593 S.W.2d at 286 and n. 4.

The record shows that as to the charges in this case the lineup occurred before the case reached the accusatory stage. His right to counsel had not been activated by any of those proceedings mentioned in Mitchell. This result is not affected by his request for counsel, see Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), or by any rights he may have had with respect to unrelated charges in Oklahoma or Ohio, see id; Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1986).

Since the defendant demonstrated no illegality in the lineup, it follows that no jury-out examination of the witnesses was required.

In a third issue the defendant asserts a right to examine and retain a juror who has been exposed to extraneous information during the trial.

The issue arose...