State v. Hayes

• Decision Date: 10 March 1972
• Docket Number: No. 41376,41376
• Citation: 195 N.W.2d 555,292 Minn. 399
• Parties: STATE of Minnesota, Respondent, v. Howard H. HAYES, Appellant.
• Court: Minnesota Supreme Court

Page 555

195 N.W.2d 555

292 Minn. 399

STATE of Minnesota, Respondent, v. Howard H. HAYES, Appellant.

No. 41376.

Supreme Court of Minnesota.

March 10, 1972.

Syllabus by the Court

1. The principle expressed in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), to the effect that the pretrial confrontation is a 'critical stage' of the prosecution requiring the presence of counsel unless waived, must be applied in light of the well-recognized qualification that whether or not there is a violation of due process in the conduct of a confrontation depends upon the totality of the surrounding circumstances.

2. The record in this case establishes that the in-court identification of defendant by the complaining witness was independent of any influence or impression gained at the lineup at which she had identified defendant prior to trial.

C. Paul Jones, Public Defender, Earl P. Gray and Mollie G. Raskind, Asst. Public Defenders, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Paul J. Tschida, Sp. Asst. Atty. Gen., St. Paul, William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Heard before KNUTSON, C. J., and MURPHY, OTIS, and PETERSON, JJ.

OPINION

MURPHY, Justice.

Appeal from a judgment of conviction on a charge of aggravated robbery contrary to Minn.St. § 609.245. It is urged that defendant was denied due process of law by identification testimony which was allegedly tainted by his appearance without counsel at a lineup that was arranged in an unfair and prejudicial manner. It is also contended that the verdict is not supported by the record.

From an examination of the record, it fairly appears that the jury could find that, on September 8, 1967, defendant entered Kamp Food Market in St. Paul. The principal prosecution witness, Mrs. Stella Kamp, was in charge of the premises. A small boy, who had just purchased candy, was hurried away by defendant. Defendant then drew a gun and instructed Mrs. Kamp to open the cash register, saying, 'Not a loud noise out of you or I'll blow your brains out.' Mrs. Kamp was forced to give him money from the cash register, which amounted to about $65 and included two or three $20 bills. Defendant walked out of the store and ran a block down the street where he entered the passenger side of a moving black station wagon. He was also observed by another witness, Mrs. Louise Carney, who operated a small grocery store nearby. She testified that there were two other men in the station wagon but that she was not able to identify them. She noted, as did Mrs. Kamp, that defendant was wearing a white shirt and light brown trousers.

After watching defendant get into the car, Mrs. Kamp called the police, immediately after which two motorcycle policemen and a police car arrived. She gave them the description of the man who had robbed her store, and with directions from two young boys who indicated the general direction in which the automobile had gone, they apprehended defendant and the two other men in the car at a point about 15 or 16 blocks from the Kamp market. Defendant was found to be wearing a white shirt and light brown or tan trousers. A search disclosed a loaded .22-caliber pistol in his possession. He was taken to police headquarters where a further search revealed $60 in cash and some change in his front pants pocket and $27 in currency in his billfold.

Within an hour after the robbery, Mrs. Kamp and Mrs. Carney were called to the police station where they viewed three men in a lineup, one of whom was defendant. They identified him as the robber. In addition to defendant, the lineup included two younger men who did not closely resemble him. At trial, both Mrs. Kamp and Mrs. Carney made positive in-court identification of defendant as the man in the white shirt and brown pants whom they had seen from their respective vantage points on the day of the robbery. Immediately prior to her courtroom identification of defendant, Mrs. Kamp was questioned by defense counsel for the purpose of laying a foundation for an objection:

'Q (By Mr. Markert) Mrs. Kamp, is your recognition of someone in this court today based in any way upon the result of your having viewed that party in the police department, after this robbery took place at your store?

'A I don't know if I understand the question right. Would you repeat it again, please?

'Q Yes. I'll rephrase it. If you identify someone in court today as the man who was in the store, would you be helped in that identification by having seen that man at the police station following the robbery?

'A No. I know I would be able to identify him any time.

'Q You would be able to identify him without having seen anyone at the police department?

'A Yes, I would.

'Q All right. No further questions.'

At trial, defense counsel did not object to the lineup but apparently chose rather to argue that its results were unreliable. It is now contended that the lineup was illegal because (1) it was unfair since defendant was significantly older than, and otherwise did not look like, the other two men in the lineup; and because (2) defendant was not represented by counsel at the lineup and had not waived his right to such legal assistance. It is urged that the alleged illegality was so prejudicial that the subsequent in-court identification of defendant should have been excluded.

Defendant relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), in support of the claimed prejudicial effect of the lineup. The thrust of that case is to protect the accused from prejudice which might result from contrived identification by prospective witnesses as a result of improper lineup procedures. It was held there that the lineup is a 'critical stage' of the prosecution at which the defendant is as much entitled to the aid of counsel as at trial itself; that both defendant and his counsel are entitled to notice of the proposed lineup; and that the presence of counsel is a requisite condition of such lineup in the absence of an intelligent waiver. See, also, Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Bishop, 289 Minn. 188, 183 N.W.2d 536 (1971). Defendant further calls attention to State v. Olson, 279 Minn. 166, 156 N.W.2d 89 (1968), and State v. Gluff, 285 Minn. 148, 172 N.W.2d 63 (1969), where this court reversed judgments of conviction, even though no objection was made to improper testimony regarding a prior offense in Olson or to an allegedly prejudicial lineup in Gluff. However, we have considered the application of United States v. Wade, Supra, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), with reference to the propriety of in-court identification testimony by a witness following a pretrial lineup identification, and we have held that the defendant's rights are not violated by the introduction of such evidence at trial where it appears that such in-court identification is wholly...