State v. Hicks

• Citation: 455 P.2d 943,76 Wn.2d 80
• Decision Date: 22 May 1969
• Docket Number: No. 40252,40252
• Parties: The STATE of Washington, Respondent, v. Larry Warren HICKS, Appellant.
• Court: United States State Supreme Court of Washington

Page 80

76 Wn.2d 80

455 P.2d 943

The STATE of Washington, Respondent, v. Larry Warren HICKS, Appellant.

No. 40252.

Supreme Court of Washington, Department 2.

May 22, 1969.

Farris, Bangs & Horowitz, Donald J. Horowitz, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Edmund P. Allen, Gerald M. Lorentson, Deputy Pros. Attys., Seattle, for respondent.

ROSELLINI, Judge.

The defendant waived a jury trial in this prosecution for robbery and was found guilty by the court. The sole contention on appeal is that the denial of the defendant's constitutional right to have counsel present at a police lineup, in which he was identified by the principal witness against him, tainted the prosecution's case against him to the extent that his conviction cannot stand.

It is conceded by the prosecutor that the defendant was not advised of his right to have counsel present at the lineup. However, the prosecutor urges that the denial of this right resulted in no prejudice to the defendant for two reasons, first, that the witness's in-court identification of the defendant was based on his impressions gained before the lineup and was therefore independent of it, and, second, that there was evidence in addition to this identification which showed the defendant's guilt beyond a reasonable doubt.

In the recent case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the United States Supreme Court held that the identification procedure known as the 'police lineup' is a critical stage in the prosecution of a defenant, at which he is entitled to have the assistance of counsel. The rule of that case was applicable when the lineup was conducted in this case on June 25, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The Supreme Court was careful to point out in Wade, however, that failure to advise a defendant of his right to have counsel present at the lineup will not vitiate every conviction, but the burden is upon the prosecution to show that the denial of this right did not prejudice his defense. The court said:

We think it follows that 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, 9 L.Ed.2d 441, "(W)hether, 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.' Maguire, Evidence of Guilt, 221 (1959).' See also Hoffa v. United States, 385 U.S. 293, 309, 87 S.Ct. 408, 17 L.Ed.2d 374. 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, are disclosed concerning the conduct of the lineup.

(Footnote omitted.) United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. at 1939.

The evidence here showed that the defendant attended the Ridgmont Theatre in Seattle on the evening of June 24, 1967, by his own admission. The manager testified that he observed him several times during the evening, first as he stood outside the theatre, later as he stood in the lobby waiting with others to be admitted, later alone in the lobby, and also seated at one time in the theatre. He was wearing a light-colored hat and a green jacket. He had a patch of adhesive tape, like a Band-Aid, on his chin. The manager finally observed the defendant at very close range when he approached him in the lobby and asked to speak to him. The manager took him into the...