State v. Grierson

• Decision Date: 19 December 1972
• Docket Number: No. 10587,10587
• Citation: 504 P.2d 1204,95 Idaho 155
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Ernest Duane GRIERSON, Defendant-Apppellant.
• Court: Idaho Supreme Court

Page 1204

504 P.2d 1204

95 Idaho 155

The STATE of Idaho, Plaintiff-Respondent, v. Ernest Duane GRIERSON, Defendant-Apppellant.

No. 10587.

Supreme Court of Idaho.

Dec. 19, 1972.

Howard I. Manweiler, Boise, for appellant.

W. Anthony Park, Atty. Gen., Wayne v. Meuleman, Asst. Atty. Gen., Boise, for appellee.

DONALDSON, Justice.

After a jury trial, the defendant-appellant, Ernest Duane Grierson, was convicted of forcibly raping two women in Boise; the two separate incidents upon which the conviction was based occurred on the nights of October 14 and November 25, 1968.

In this appeal, the appellant asserts that he had a constitutional right to counsel at a pre-information lineup; he also challenges the validity of a voice demonstration which took place at that lineup. In addition, the appellant submits that the record contains no competent evidence proving beyond a reasonable doubt that he was at the scene of either crime. On December 19, 1968, the Idaho Falls Police Department asked the appellant's employer to have the appellant contact the Department, which he did; arrangements were then made for the appellant to appear at the police station that afternoon. Upon his arrival, the appellant was told that the police were investigating assaults and rapes in the Boise area and a murder in Idaho Falls. The investigating officers asked the appellant to read a form which contained the following provisions:

'YOUR RIGHTS:

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer evem if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed to you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.

'WAIVER:

I have read the statement of my right shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.' Emphasis added.

The appellant then subscribed his signature to this waiver document.

After the execution of this waiver, the police told the appellant that they would like him to participate in a lineup. At this time, the appellant was a 'suspect,' but he had not been arrested or formally charged. The police told the appellant that he was entitled to have an attorney present at the lineup if he so desired, and the appellant then subscribed another waiver document:

'I Duane Grierson this date 12-19-68 do hereby agree to stand in a lineup at the request of the Idaho Falls Police Department.

'I have been advised of my rights. I am aware that I need not do this without the presence of my attorney, unless I agree.

'At this time, I waive this right.'

The two prosecuting witnesses were waiting together behind a one-way-glass device when the appellant and four other men were lined up before them. One of the victims recognized the appellant as her assailant almost immediately, became visibly upset, and began criying. Each of the individuals in the lineup was then asked to repeat in a forceful manner various expressions purportedly uttered by the rapist at the time of the attacks. Only after hearing the appellant's vice was the second prosecuting witness able to positively identify him as the man who had attacked her. The appellant was then placed under arrest and transported to Boise, where a complaint was filed charging him with two counts of rape.

Relyig upon the Sixth and Fourteenth Amendments, the appellant contends that he was deprived of a constitutional right to the assistance of counsel at a pre-information lineup. The answer to the appellant's contention is contained in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411 (U.S. 1972), wherein the United States Supreme Court held that 'a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated * * *-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' In Kirby, the Supreme Court sustained the validity of a post-arrest, pre-indictment confrontation. In the case at bar, the lineup was conducted not only befoer the defendant-appellant had been formally charged but also prior to his arrest; a fortiori, the Kirby rationale applies in this case. We conclude that the appellant did not have a constitutional right to counsel at the lineup in question. This conclusion renders it unnecessary to consider the efficacy of the waiver executed by the appellant. ¹

The appellant next contends that his Fifth and Fourteenth Amendment privilege against compulsory self-incrimination was violated because he was forced to repeat certain words purportedly uttered by the rapist. This contention is without merit. United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Annot., 24 A.L.R.3d 1261, 1265 (1969); see Kirby v. Illinois, supra, 406 U.S. 682, 92 S.Ct. at 1881. In Wade, the United States Supreme Court stated:

'(C)ompelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. * * * (T)he Fifth Amendment privilege against self-incrimination * * * 'offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to asume a stance, to walk, or to make a particular gesture.' * * * None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.' 388 U.S. at 222-223, 87 S.Ct. at 1930.

Moreover, we note that in this case the police adhered to the more desirable procedure of having the identifying witness listen to the voices of several other persons in addition to that of the suspect. See Crume v. Beto, 383 F.2d 36, 40 (5th Cir. 1967), cert. denied, 395 U.S. 964, 89 S.Ct. 2106, 23 L.Ed.2d 749 (1969); People v. Osuna, 70 Cal.2d 759, 76 Cal.Rptr. 462, 452 P.2d 678, 681 (1969); Annot., 24 A.L.R.3d 1261, 1272 (1969). But the appellant further contends that the identification of his voice by one of the prosecuting witnesses was invalid because the rapist's mouth was, at least part of the time, covered by a turtleneck sweater. The appellant assumes that because the assailant's mouth was sometimes covered by a turtleneck sweater, his voice was therefore 'muffled' throughout the entire incident; and, the appellant argues, a valid comparison could not possibly be made between the muffled voice of the rapist and the unmuffled voice of the appellant at the lineup. We do not, however, have to decide whether hearing a muffled voice would provide a sufficient basis for a subsequent identification of an unmuffled voice; for, as the state points out, he record does not sustain the appellant's assertion that the rapist's voice was muffled during the incident. In fact, on direct examination the prosecuting witness who made the voice identification testified that her assailant's voice 'was not muffled at all.' There may be cases where a voice is so unclear, so disguised, or so inaudible that a witness lacks a sufficient basis for subsequently identifying it; but the record does not indicate that this is such a case. In any event, the evidentiary weight of voice recognition testimony is a question of fact for the jury's determination. State v. Cofer, 73 Idaho 181, 249 P.2d 197 (1952); Annot., 70 A.L.R.2d 995, 1012 (1960).

The appellant also contends that he was prejudiced because the prosecuting witnesses were allowed to view the lineup in each other's presence. Pointing out that he was not identified by one of the victims until after she had seen the other identify him, the appellant suggests that this second identification may have been unduly influenced by the first. Law enforcement officers should avoid the practice of having witnesses view a lineup and make identifications in the presence of one another. Thompson v. State, 438 P.2d 287, 289 (Okl.Cr.1968); N. Sobel Eye-Witness Identification, Legal and Practical Problems § 56.03, at 106 (1972). In certain cases, the joint viewing of a lineup could amount to a deprivation of due process. See Monteiro v. Picard, 443 F.2d 311, 313 (1st Cir. 1971), cert. denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972); People v. Daniels, 71 Cal.2d 1119, 83 Cal.Rptr. 897, 459 P.2d 225, 240 (1969). As the United States Supreme Court only recently re-emphasized in Kirby v. Illinois, supra: 'The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification.' 406 U.S. 682, 92 S.Ct. at 1883; see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The procedure of having witnesses make identifications in each other's presence is said to be 'fraught with dangers of suggestion.' United States . v. Wade, supra 388 U.S. at 234, 87 S.Ct. 1926; see Quinnn, In the Wake of Wade, 42 U.Colo.L.Rev. 135, 153 (1970). Where, as here, two separate crimes are involved, it is apparent that an identifying witness's observation of a prior identification could often be especially prejudicial. However, in the particular circumstances of the case at bar, we find that no prejudice...