State v. Cannon

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before WHITE; NEWTON
• Citation: State v. Cannon, 174 N.W.2d 181, 185 Neb. 149 (Neb. 1970)
• Decision Date: 06 February 1970
• Docket Number: No. 37354,37354
• Parties: STATE of Nebraska, Appellee, v. Fred CANNON, Appellant.

Page 181

174 N.W.2d 181

185 Neb. 149

STATE of Nebraska, Appellee, v. Fred CANNON, Appellant.

No. 37354.

Supreme Court of Nebraska.

Feb. 6, 1970.

Syllabus by the Court

1. When evidence of an in-court identification alleged to be tainted by a prior illegal line-up is first challenged on appeal, such challenge, in the absence of a clear showing of prejudicial error, will not be considered. Failure to object will be attributed to defense counsel's choice of trial tactics.

2. In-court identification evidence is admissible where such identification is made on a basis independent of a tainted line-up.

3. A primary factor in determining whether an independent basis for an incourt identification exists is the opportunity afforded the witness to observe the defendant under circumstances free from taint.

4. In determining the sufficiency of the evidence to sustain the conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weight the evidence.

5. This court will not interfere with a verdict of guilty which is based on conflicting evidence unless the evidence is so lacking in probative force that it is insufficient as a matter of law to support a finding of guilt beyond a reasonable doubt.

6. Evidence of an unexplained breaking and entering by the defendant is sufficient to require submission to the jury of the question whether the breaking and entering was with an intent to steal.

Joseph R. Helmann, Hastings, for appellant.

Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

NEWTON, Justice.

Fred Cannon was charged with breaking and entering the Phelps Liquor Store in Hastings, Nebraska, at approximately 11:20 p.m. on December 6, 1968. Trial to a jury was had and a verdict of guilty rendered pursuant to which judgment and sentence were pronounced against defendant. We affirm the judgment of the trial court.

The Phelps Liquor Store is located approximately 575 feet north and west of the Hitching Post Bar. The Phelps Liquor Store closed at about 10 p.m., but the manager and one other employee remained in the store to bring additional merchandise up from the basement and replenish the stock. The manager was on the first floor when he heard glass breaking. He walked toward the area from which the sound came and observed that a large window about 6 feet high and 3 feet wide had been broken. A man was entering through the window. At this time the manager was about 20 feet from the broken window with a clear view of the intruder. Fifteen feet in from the window was a 160 watt fluorescent overhead light. He shouted at the intruder who was then standing sidewise in the window. The intruder turned his head and looked directly at the store manager. He then retreated from the window and ran away. The other store employee looked out through the window and saw the trespasser running down the street in the direction of the Hitching Post Bar. He did not see the individual enter the Hitching Post Bar as it was around the corner and out of view. A call was immediately made to the police. That call was received at 11:24 p.m. When the police arrived at the Phelps Liquor Store, the manager described the person attempting to gain entrance as being a medium-sized colored man with a bushy mustache, long sideburns, dark colored trousers and shirt, and a 3/4-length light brown leather-like coat or jacket. Within the hour defendant was located and arrested at the Hitching Post Bar. At the time of his arrest, defendant had a shallow cut approximately 1 inch long under his left eye which was still bleeding. A bartender at the Hitching Post Bar saw the defendant in the bar and stated that when the police entered, the defendant got up and went into the back part of the room where his brother was playing pool. Another witness stated that he arrived at the Hitching Post Bar about 11:15 p.m. at which time the defendant was leaving the bar and that defendant returned sometime later, but the witness did not know at what time. At the time of his arrest, defendant was wearing a dark shirt, blue jeans, and a fawn-colored leather jacket. He had a mustache and was about 5 feet 10 inches in height.

The manager of the Phelps Liquor Store made an in-court identification of the defendant. No motion to suppress this evidence was made either before or during the trial. It was not objected to and there was no motion to strike it. On cross-examination defendant brought out the fact that a short time after his arrest the defendant had been identified by this witness in the absence of counsel or a waiver thereof. Prior to the illegal line-up, he had viewed a picture of the defendant and four other colored men. The four other colored men were known to the witness. This was, therefore, in effect, a one-man line-up made the morning following the commission of the offense. The State introduced no evidence regarding prior identification.

Defendant's evidence sought to establish an alibi. Several relatives and acquaintances of defendant testified to his movements between 11 p.m. and 12 midnight on the night of December 6, indicating that he did not arrive at the Hitching Post Bar until after the commission of the offense and was at the time of the offense in the company of others. The various times attributed to defendant's movements during this period seemed to be somewhat indefinite or conflicting. The defendant himself took the stand and attempted to verify this defense, but on cross-examination admitted that in an earlier statement which he had given to the county attorney, he said that he had arrived there at a little after 10 p.m. Some of these witnesses also attempted to impeach identification of the defendant by stating that his mustache was not bushy and that his sideburns were not long. The evidence also disclosed that defendant was suffering from paralysis of one side of his face due to Bell's Palsy and indicated that when he attempted to talk, smile, or otherwise endeavor to use his facial muscles, his face would be pulled to one side in a noticeable manner. In rebuttal, the State called a physician who testified that defendant's facial condition would not be noticeable when his face was in repose.

In his brief and his oral argument, defendant challenges the validity of the State's evidence of identification. This proposition was not raised either in his motion for new trial or in his assignments of error in this court and would not ordinarily be considered by this court under such circumstances. However, in view of the fact that a constitutional question has been raised, this defense will be considered. Defendant cites the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. See, also, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. These cases lay down the rule that when a pretrial line-up is had and defendant's counsel is not present, evidence of the line-up is inadmissible. In the present instance, no evidence of the line-up was introduced by the State, the only evidence pertaining thereto being brought out by defendant on cross-examination. These cases further hold that an in-court or subsequent identification will be barred if it is tainted by the preceding illegal identification. The Wade case further holds that evidence of an incourt identification will not be excluded '* * * without first giving the Government the opportunity to establish * * * that the in-court identifications were based upon observations of the suspect other than the lineup identification.' In the present instance, no objection having been made to this evidence at or before the trial, the court had no opportunity to ascertain all the facts pertaining to the situation presented or to hear other evidence on the question of whether or not there was an independent basis for the in-court identification. Under such circumstances, several jurisdictions have held that the defendant waives any objection he may have to the admissibility of the identification evidence....