State v. Hurt, 71-548

• Decision Date: 10 May 1972
• Docket Number: No. 71-548,71-548
• Citation: 282 N.E.2d 578,30 Ohio St.2d 86
• Parties: , 59 O.O.2d 106 The STATE of Ohio, Appellee, v. HURT, Appellant.
• Court: Ohio Supreme Court

Page 86

30 Ohio St.2d 86

282 N.E.2d 578, 59 O.O.2d 106

The STATE of Ohio, Appellee, v. HURT, Appellant.

No. 71-548.

Supreme Court of Ohio.

May 10, 1972.

Syllabus by the Court

1. Evidence that a victim, who had an unobstructed view of a robber during the progress of the crime, positively identified him within three days after the offense and before trial, and thereafter positively identified him at trial, is sufficient to support a conclusion by the trial judge that the in-court identification had an independent origin and is admissible, notwithstanding the pretrial identification was made at a confrontation at which counsel for the accused was absent, the same not being waived.

2. An improper confrontation between an accused and his accuser is not impermissibly suggestive where the accused is accompanied only by his alleged accomplice, both of whom are not grossly dissimilar in appearance and were not required to wear distinctive clothing, and the accusers were not importuned with the suggestion that the police had caught a culprit or that the accused was that culprit.

Appeal from the Court of Appeals for Cuyahoga County pursuant to the allowance of a motion to certify the record.

Appellant was indicted and convicted on three counts of armed robbery, R.C. 2901.13. The Court of Appeals affirmed.

A series of robberies occurred in February 1969 in Cleveland, Ohio. In each of them a delivery truck driver had been robbed by a an who made his escape on foot to an automobile parked nearby. One of the victims secured the license number of the automobile and gave it to the police.

Appellant was observed driving a car with this license number by police officers on February 15, 1969. He was then arrested along with a male passenger and taken to police headquarters.

On February 16, six of the people who had been victims of recent robberies were assembled at the police station. The authorities, after Miranda warnings were given, went to appellant and asked him if he would appear in lineup. Appellant replied that he wanted counsel and refused to sign a waiver of counsel form. Thereafter, the police 'explained to him that these people wanted to see him . . . (that) these people had been robbed and he had been arrested in connection with this case . . .. So we asked him if he wished to be confronted with these people . . .. He said it was all right . . ..' Appellant denies consenting to the confrontation.

Nevertheless, the six witnesses were called into the interrogation room to view only appellant and the other man. Three could 'positively' identify him.

Prior to trial, appellant moved to suppress as evidence 'the show up identification made of him by various witnesses in this case' and to 'enjoin the state from presenting, as evidence, any in-court identification testimony that was acquired . . . in violation of . . . (appellant's) right to counsel.' The motion was overruled.

At trial, the three witnesses positively identified Hurt.

John T. Corrigan, Pros, Atty., and John H. Carson, Jr., Cleveland, for appellee.

James R. Willis, Cleveland, for appellant.

SCHNEIDER, Justice.

At the outset it should be noted that the alleged illegal confrontation came before the indictment of March 18, 1969.

Although some courts have restricted United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, to post-indictment confrontations, as in People v. Palmer (1969), 41 Ill.2d 571, 244 N.E.2d 173, we adopt the view expressed in State v. Isaacs (1970), 24 Ohio App.2d 115, 117, 265 N.E.2d 327, 328: '. . . the better view, the one most responsive to the reasoning in the Wade and Gilbert cases . . . is that the Wade and Gilbert rules estend to any lineup conducted where the prosecutive process has shifted from the investigatory stage to the accusatory stage and focuses on the accused, except in emergency situations such as the Stovall v. Denno case, supra (388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199).' ¹

The first issue before us is whether a courtroom identification of an accused is to be excluded from evidence because the accused was exhibited to witnesses before trial at a 'confrontation' conducted for identification purposes in the absence of counsel.

Both Wade and Gilbert hold that when an accused, in custody, has been exhibited in a pre-trial lineup without assistance of counsel, the government must establish one of the following: (1) By clear and convincing evidence, that the in-court identification had an origin independent of the lineup identification; (2) that error in the admission of both the in-court identification and the lineup identification was harmless; or (3) that the accused knowingly, intelligently, understandingly and voluntarily waived his right to the assitance of counsel.

While the fundamental principle of Wade is that some prophylaxis is necessary at a police lineup to assure a fair identification procedure, we find much too little in this record to anchor a waiver of appellant's right to counsel at the confrontation.

The Cleveland police authorities were well aware of appellant's insistence on having counsel present at any lineup proceedings. However, one police officer testified that appellant was persuaded to forego the lineup and submit to a 'confrontation' with his accusers in the absence of counsel. This witness also testified that the accused consented to such confrontation in the absence of counsel. Appellant denied this, both a trial and during the hearing on the motion to suppress.

In State v. Jackson (1971), 26 Ohio St.2d 74, 269 N.E.2d 118, we noted that both Wade and Gibert 'do not . . . bar line-up identifications, or even hold that where there is an improper line-up an incourt identification by the witness is necessarily inadmissible.'

Thus, as in the instant case, when an accused in custody has been exhibited in a pre-trial confrontation without assistance of counsel, the government must establish by clear and convincing evidence that the in-court identification had an independent origin, or that error in its admission was harmless. See United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926.

'. . . 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, "(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.' . . .'

'In determining whether the in-court identification was a result of an improper line-up or came from some independent recollection and observation of the accused by the witness, the cases hold that the totality of the circumstances surrounding the identification must be considered.' (Emphasis supplied.) State v. Jackson, supra, 26 Ohio St.2d 74, 77, 269 N.E.2d 118, 120, and cases cited therein.

We cannot condone the use by police of a pre-trial confrontation to firm up the uncertain memories of potential witnesses where a normal jailhouse lineup could be arranged. The use of a non-lineup confrontation 'is, at the least, a practice fraught with perils to a degree suggesting its sparing use as the part of prudence.' See Clemons v. United States (1968), 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240-1241, as cited in United States v. Jackson (CA. 9, 1971), 448 F.2d...