State v. Cannito
| Citation | 162 N.W.2d 260,183 Neb. 575 |
| Decision Date | 15 November 1968 |
| Docket Number | No. 36917,36917 |
| Parties | STATE of Nebraska, Appellee, v. Joseph B. CANNITO and Edward G. Konder, Appellants. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. An in-court identification by a witness to whom the accused was exhibited before trial and in absence of defense counsel is inadmissible, unless an independent origin of the identification has been established.
2. The exclusionary rules of search and seizure are subject to an impeachment exception that at most is narrow.
Dier & Ross, Kearney, for appellants.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
A jury found defendants guilty of robbery. Chief complaints on appeal concern admission of items into evidence. The items are (1) in-court identifications by witnesses in spite of their previous observations of defendants while defendants were in custody and without counsel, and (2) pistols seized in an unreasonable search, the court having applied the impeachment exception to the exclusionary rules of search and seizure.
The identifications in question are found in testimony of Larry Arnold and Rodney Bundy, employees of a Safeway store in Kearney, Nebraska. Reliability of the identifications is affected by circumstances of the robbery. While Arnold was carrying customers' groceries outside the store, two strangers, subsequently identified as the defendants, approached him. The meeting occurred shortly after close of business at 9 p.m., September 2, 1967. Arnold and defendant Konder discussed whether it was too late for Konder to buy a loaf of bread. The conversation ended with Konder's request to see the manager, and the three men entered the store. Defendants quickly announced their purpose.
During the robbery Arnold lay on the floor near defendant Cannito. A few feet away but out of Arnold's sight, Bundy upon Konder's demand removed money from the safe. The elapsed time was 5 to 10 minutes. A verbatim record of descriptions given by Arnold and Bundy prior to October 2 was not made.
After the robbery but before September 9, 1967, Bundy traveled to Fairfax, Missouri, where he stated that two suspects exhibited to him had not robbed the store. On September 9 he and Arnold observed defendants in custody at Kimball, Nebraska. There was no lineup. Defendants then had no counsel, and they did not waive their right to counsel. They subsequently moved for an order that identification of them by Arnold or Bundy before a jury would be inadmissible. At the hearing a record of Bundy's testimony on October 2 at defendant's preliminary hearing was received in evidence and the motion was overruled. In January 1968, Arnold and Bundy identified defendants in presence of the jury.
An in-court identification by a witness to whom the accused was exhibited before trial and in absence of defense counsel is inadmissible, unless an independent origin...
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Thompson v. State
...identification. Shepard v. State, 213 So.2d 11 (Fla.App.1968); Tyler v. State, 5 Md.App. 158, 245 A.2d 592 (1968); State v. Cannito, 183 Neb. 575, 162 N.W.2d 260 (1968); State v. Carrothers, 79 N.M. 347, 443 P.2d 517 (1968); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); cf. Jones ......
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State v. Wisniewski
...517, 519; Tyler v. Maryland, 5 Md.App. 158, 245 A. 592, 595, 597; Shepard v. State, Fla.App., 213 So.2d 11, 12; and State v. Cannito, 183 Neb. 575, 162 N.W.2d 260, 261. However, we must still determine whether the police procedure violated the Stovall rule. In other words, was defendant den......
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Cannito v. Sigler
...identification but were of independent origin. The Supreme Court of Nebraska affirmed that finding. State of Nebraska v. Cannito, 183 Neb. 575, 162 N.W.2d 260 (1968). The pretrial identification was made on September 9, 1967, at the courthouse in Kimball, Nebraska. Konder and Cannito were t......
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State v. Essary
...procedure.' In addition to Wade and Gilbert, cited therein see, Fitts v. United States, 5 Cir., 406 F.2d 518, 519; State v. Cannito, 183 Neb. 575, 162 N.W.2d 260, 261; Anderson v. State, Fla.App., 215 So.2d 618, 620, 621; Shepard v. State, Fla.App., 213 So.2d 11, 12; Tyler v. State, 5 Md.Ap......