State v. Darby

• Decision Date: 20 October 1969
• Docket Number: No. 1955,1955
• Citation: State v. Darby, 460 P.2d 9, 105 Ariz. 115 (Ariz. 1969)
• Parties: STATE of Arizona, Appellee, v. Jack Earl DARBY, Appellant.
• Court: Arizona Supreme Court

Page 9

460 P.2d 9

105 Ariz. 115

STATE of Arizona, Appellee, v. Jack Earl DARBY, Appellant.

No. 1955.

Supreme Court of Arizona, In Division.

Oct. 20, 1969.

Rehearing Denied Nov. 18, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

Lurie & Friedman, by Steven Friedman, Phoenix, for appellant.

HAYS, Justice.

Jack Darby was charged and convicted by a jury of robbery, a felony under A.R.S. § 13--641. He appeals his conviction contending the trial court erred in failing to suppress the in-court identification testimony of two witnesses who had identified the defendant at a 'tainted' police lineup, and in refusing to give certain instructions requested by the defense.

About 2:00 a.m. on the morning of September 11, 1967, Darby and another subject, both of whom answered the descriptions of the two men who had minutes before robbed a coffee shop at Central and Osborn Avenues in Phoenix, were arrested and taken into custody at the corner of 3rd Ave. and Thomas Road by two Phoenix police officers. The officers heard brief descriptions of the suspects and their vehicle over the police radio.

Within an hour of the arrests, the police staged a lineup for the complaining witnesses who identified Darby and his co-defendant without hesitation.

The trial court granted the defense's pretrial motion to suppress testimony concerning this lineup on grounds that the procedure followed was inherently violative of the due process rights of the defendant. Although the identifications made at this lineup were positive and without reservation, the court found irregularities in the conduct of the proceeding. The defendant had not been advised of his right to have legal counsel present at the lineup, and he was shown wearing a dark blue denim cowboy shirt similar to that worn by one of the armed robbers, while the other four suspects in the lineup were dressed in white 'T' shirts.

On a further motion to suppress All identification testimony, the trial court held a second hearing outside of the presence of the jury to decide whether any subsequent identification would be prejudicially tainted by the earlier lineup. On the basis of the examination of the witnesses by both counsel, Judge Strand ruled that testimony of subsequent identifications would not be withheld from the jury's consideration.

The defendant objected to the in-court identifications made by the complaining witnesses on the basis that the State had failed to show by 'clear and convincing evidence' that these identifications were based upon observations of the suspect independent of the 'tainted' lineup. The defense maintained that the testimony at the hearing shows that the lineup confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification so as to deny due process of law and to make it impossible for the prosecution to meet the 'clear and convincing' test.

We first announced the clear and convincing evidence test in the opinion of State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), wherein we set forth the effective procedure for handling challenged in-court identifications at the trial court level. For cases following Dessureault we established the rule that if the proposed in-court identification is challenged, the trial court must immediately hold a hearing in the absence of the jury to determine from clear and convincing evidence whether the circumstances surrounding the pretrial identification were unduly suggestive or violative of our concepts of due process. If the trial judge concludes that the circumstances of the pretrial identification were unduly suggestive, then it is the prosecution's burden to satisfy the trial judge from 'clear and convincing evidence' that the proposed in-court identification is not tainted by the prior identification.

The Dessureault decision was handed down a full year after the Darby trial, but the lower court wisely anticipated this Court's ruling. Guided by the United States Supreme Court's then very recent decisions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the trial judge properly ordered a hearing to determine the issue.

This Court is asked to review the findings of that hearing.

The determination of whether the proposed in-court identification is or is not tainted by a prior lineup at which the due process rights of the accused have been overreached, is a question of fact for the trial judge. His determination that the in-court identifications are based upon observations of the suspect other than the lineup, will not be disturbed on appeal unless there is clear and manifest error.

As established by the Supreme Court in the Wade case, supra, the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 'Whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' As stated by the Wade majority on page 1940 of 87 S.Ct.:

'Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel,...