State v. Giragosian

• Decision Date: 09 November 1970
• Docket Number: No. 810-E,810-E
• Citation: 107 R.I. 657,270 A.2d 921
• Parties: STATE v. George GIRAGOSIAN. x. &c.
• Court: Rhode Island Supreme Court

Page 921

270 A.2d 921

107 R.I. 657

STATE v. George GIRAGOSIAN.

No. 810-Ex. &c.

Supreme Court of Rhode Island.

Nov. 9, 1970.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Scott K. Keefer, Special Asst. Atty. Gen., for plaintiff

Bevilacqua & Cicilline, Joseph A. Bevilacqua, John F. Cicilline, Providence, for defendant.

OPINION

PAOLINO, Justice.

The defendant was indicted and subsequently convicted by a jury of entering a dwelling with intent to commit larceny in violation of G.L.1956 (1969 Reenactment) § 11-8-3. The trial justice sentenced him to serve a term of seven years in the Adult Correctional Institutions. The case is before us on certain exceptions taken by the defendant during the course of the trial.

The pertinent factual background follows. On the morning of April 9, 1967, at approximately 6:30 a.m., Mrs. Avis C. Farrell discovered someone, whom she subsequently identified as defendant, ransacking a chest of drawers on the first floor of her home in the city of Pawtucket. As a result of her scream, defendant turned, faced Mrs. Farrell, and then fled. She testified that she stared at defendant for 'several seconds' and that she also noticed his clothing, particulary his hat which was a so-called 'Alpine hat.' Further investigation revealed that a set of house keys and driver's licenses were taken.

On April 11, 1967, a Pawtucket police officer, while on early morning patrol, saw an automobile, which had been involved in a two-car accident. He stopped to investigate and saw defendant sitting behind the steering wheel. He attempted to identify defendant and asked him for his license and registration. The defendant did not show the officer his license; he only produced a registration for the car, showing that it was a Hertz Rent-A-Car. The officer, thereupon, warned defendant of his constitutional rights and told him he would have to detain him. He then brought him to the police station, where he was held pending further investigation. The desk sergeant testified that defendant's attire 'struck a bell' with him. When asked to identify himself and provide identification, defendant gave three different names to the officers at the station. He was then searched and several keys and other objects were taken from him. The keys were later found to match those fitting doors in the Farrell household. At about 8:30 a.m. on the morning of April 11, 1967, Mrs. Farrell was called to the police station, where she identified defendant in a lineup of three persons.

I

We first consider defendant's contention that the in-court identification of defendant should not have been permitted. The defendant argues that the identification would be invalid if it were the result of a prior illegal lineup. Since the lineup in this case occurred prior to June 12, 1967, defendant concedes that under STOVALL V. DENNO, 388 U.S. 293, 87 S.CT. 1967, 18 L.ED.2D 1199,¹ the rules laid down in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, regarding one's right to counsel at a lineup, do not apply here. He argues, however, that the lineup must be considered '* * * as a circumstance leading up to the totality of circumstances which evolved in her courtroom testimony.' So viewed, he argues that, independent of any right to counsel claim, the lineup was '* * * so unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law.' Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206. We do not agree with defendant's argument on this issue.

As the Court said in Stovall, id. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206, '* * * a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it * * *.' There is nothing in this record, which in any way indicates that the circumstances surrounding the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification. The confrontation at the police station took place only two days after the entry. Mrs. Farrell testified that, at the time she discovered the intruder in her home, she looked at him for a few seconds, that the light that morning was very good, and that she saw the man very clearly. She also described the clothing the intruder was wearing, especially his Alpine hat. In the circumstances we find nothing unfair about the conduct of the three-man lineup.

The defendant next contends that the validity of the in-court identification was vitiated by the fact that Mrs. Farrell was, on at least two occasions, shown pre-trial photographs of defendant. It appears from the record that defendant's photographs were shown to the witness several days before trial. The defendant states that the only photographs shown to the witness were those of defendant and that the only purpose for doing so was to guarantee that the witness would identify defendant as the person whom she had earlier identified. The defendant argues that the showing of these photographs to the witness, in the totality of circumstances, were impermissibly suggestive and violative of due process. He relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, which involved pre-trial identification by photograph.

The defendant's argument regarding the showing of the photographs is without merit. We see nothing wrong, in the circumstances of this case, with the state's showing of defendant's photographs to the witness in preparation for the trial. Simmons v. United States, supra, on which defendant places great reliance, does not aid defendant in this case. In Simmons, which involved no lineup identification, the Court upheld the pre-trial identification by photograph and spoke as follows:

'* * * we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Id. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

We believe that the foregoing standard is sound and is applicable here. However, on this record, we cannot say that the identification was so impermissibly suggestive as to violate the requirements of Simmons, supra.

For these reasons we hold that the in-court identification in the case at bar was not improper.

II

We next consider defendant's contention that the search of defendant at the police station was unlawful. He bases this argument on his exception to the trial justice's ruling denying his motion to strike all testimony relating to the keys which had been taken from him at the police station. Relying on G.L.1956 (1969 Reenactment) § 12-7-1, our 'Temporary detention of suspects' statute, ² defendant argues that, since he was not charged with the instant offense within the two-hour period set forth in that statute, his detention was illegal ab initio and, therefore, the search at the police station was unlawful. To support his argument that defendant's detention at the scene of the accident and the subsequent search was illegal, defendant cites State v. McWeeney, 100 R.I. 394, 216 A.2d 357, and Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560.

The weakness in defendant's position is the fact that, at the time of his detention, he was already under legal arrest. At the scene of the accident, defendant did not display a driver's license to the police officer, as requested. This action amounted to a violation of § 31-10-27, ³ by his failure to have his operator's license in his immediate possession and by failing to display the same upon the officer's demand. Even if defendant were not a licensed driver, he still violated the law, since the lack of a valid driver's license was a violation of § 31-10-1. ⁴ Under § 31-27-13, violation of § 31-10-1 or § 31-10-27 constitutes a misdemeanor. McWeeney and Stenhouse, both supra, are of no help to defendant. Under G.L.1956 (1969 Reenactment) § 12-7-3, ⁵ the officer had the authority to arrest defendant for committing a misdemeanor in his presence. At the scene, when the police officer informed defendant of his rights and removed him to the police station, a valid arrest was made. See State v. McWeeney, supra. Compare Barth v. Flad, 99 R.I. 446, 451, 208 A.2d 533, 536, where the court said:

'We are constrained to agree with plaintiff's contention that he was arrested by defendant when he stopped his car at defendant's direction. We are unable to agree that defendant, by the mere act of asking plaintiff to produce his operator's license, must be held to have converted that arrest into a detention under the provisions of § 12-7-1.'

Since there was a valid arrest at the scene of the accident, the subsequent search at the police station was lawful. Indeed, defendant concedes that a police officer has the right to search the person of the accused, once he is placed under arrest. See State v. Carufel, R.I., 263 A.2d 686, 691. Nor does it make any difference that the fruits of another crime were obtained as a result of the search or that defendant was ultimately charged with violations, other than the one for which he was originally arrested. See Johnson v. State, 8 Md.App. 187, 259 A.2d 97, where the defendant was lawfully arrested for a misdemeanor and searched, whereupon evidence was found to convict him for another crime. In affirming the conviction the court said:

'Appellant's arrest being legal, Detective Spencer was authorized to conduct incident thereto a search of appellant's person for evidence of the crime and for weapons. (cites omitted) When, in the lawful course of that search, Spencer discovered the cache of narcotics in appellant's pocket, he was entitled...