State v. Iron Shell

• Decision Date: 19 November 1971
• Docket Number: No. 10792,10792
• Citation: 191 N.W.2d 803,86 S.D. 100
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Frederick IRON SHELL, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 803

191 N.W.2d 803

86 S.D. 100

STATE of South Dakota, Plaintiff and Respondent, v. Frederick IRON SHELL, Defendant and Appellant.

No. 10792.

Supreme Court of South Dakota.

Nov. 19, 1971.

Ron Schmidt, Pierre, for defendant and appellant.

Gordon Mydland, Atty. Gen., C. J. Kelly, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

WINANS, Judge.

In the early evening hours of November 22, 1968, Mrs. Myrtle Wilhelm was on duty alone as night manager of Price's Motel in Rapid City, South Dakota. She was acting as registration clerk. At approximately 6:30 p.m. of that day two men entered the office of the motel. One of the men inquired for the use of the rest room and was told by Mrs. Wilhelm that the motel had no public rest room, but there was one in a filling station across the street. He turned and walked back toward the door. The other man, later identified by Mrs. Wilhelm as the defendant herein, stayed at the registration desk, laid his towel-wrapped hand on the desk and nodded toward the cash register and told Mrs. Wilhelm to give him everything in the cash register or he would blow her head off. She complied with such request and collecting the bills from the cash register handed them to him. He took the money and directed Mrs. Wilhelm to get down on the floor and stay there five minutes or he'd blow her head off. She got down on the floor and stayed there until she heard the office door close. She then telephoned Richard Price, the owner of the motel, and the Rapid City police what had occurred.

Police officers Schramm and Childs responded to the call within minutes and received from Mrs. Wilhelm a general description of the two robbers. The two officers then proceeded to the M & W Cabins one block east and across the street from the Price Motel, to enlist the aid of officer Preble in their investigation of the robbery. Officer Preble was investigating an attempted robbery of Bus'z Liquor Store on east North Street. From the liquor store he had gone to cabin #17 at the M & W Cabins and within minutes after arriving there the defendant and his companion, Francis Stands, also arrived at the doorway of this cabin, both breathing heavily as if from running. Stands was observed by officer Preble removing an orange sweater and handing it to the defendant who put it on. He asked the two men for identification which Stands produced, but Iron Shell was unable to produce. Officer Preble observed that the defendant had a large lump of something in his pocket and upon inquiry, defendant removed a large roll of bills from this pocket. Defendant explained that he had been working and had earned the money, and replaced it in his pocket. Officers Schramm and Childs then arrived at cabin #17 and informed officer Preble that a bunch of bills was taken from Price's Motel and related a general description of the robbers, given them by Mrs. Wilhelm; this general description was consistent with the general appearance of defendants Iron Shell and Stands. Sergeant Preble asked them to accompany the officers to Price's Motel for possible identification as the robbers. At the motel Mrs. Wilhelm was asked whether she could identify the two men and responded, 'yes, I could'. The policemen then brought the men in and they were identified by Mrs. Wilhelm as 'Those are the ones'.

From the time of the robbery to the time of this identification approximately thirty minutes had elapsed. In the identifying process by Mrs. Wilhelm the two men were not required to talk, walk around the room or perform in any way, but were required to stand before the registration desk. Mrs. Wilhelm also made an in-court identification of the defendant as one of the robbers and in her testimony at this time she identified the sweater as having been worn by Mr. Stands when the two men first entered the motel and as having been worn by the defendant on the second occasion when they were brought in for identification. Defendant was charged with the offense of robbery and entered a plea of not guilty and not guilty by reason of mental illness. He was tried to a jury and found guilty of robbery in the first degree. The questions presented by defendant's appeal by assignments of error are two, as follows:

1. Whether the confrontation between Myrtle Wilhelm and Defendant Iron Shell, conducted on November 22, 1968 at Price's Motel, and the subsequent admission into evidence of testimony describing that confrontation, and the in-court identification of Defendant Iron Shell by Myrtle Wilhelm, were violative of Defendant's constitutional rights of due process of law and to counsel.

2. Whether Instructions 4 and 14 given by the Trial Judge incorrectly placed upon Defendant Iron Shell the burden of proving his insanity at trial.

In consideration of defendant's assignment of error concerning identification, we are at once confronted with three decisions of the United States Supreme Court decided June 12, 1967. Those cases are United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. We are also mindful of our own case of Utsler v. State, 84 S.D. 360, 171 N.W.2d 739, at p. 743, in which this court adopted the following language:

'It is now settled law that an in court identification by a witness to whom an accused was exhibited before trial without notice to and in the absence of counsel must be excluded unless it can be established that such evidence had an independent origin or that error in its admission was harmless. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. These cases were decided on June 12, 1967. On the same date the United States Supreme Court decided Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, in which it was held that the rule promulgated in Wade and Gilbert was not retroactive. Since the asserted constitutional error occurred before June 12, 1967, Utsler's claim in this regard requires no further consideration.'

Utsler also reached the United States Court of Appeals, Utsler v. Erickson, 8th Circuit, 440 F.2d 140, where that court among other things held that 'police in investigating a probable offense may ask preliminary questions on identification and the recent whereabouts of persons under suspicion in order to proceed with the investigation and quickly eliminate those who appear to be beyond suspicion.'

The Wade and Gilbert decisions have caused considerable difficulty and differences of opinion in their application to the fact situations that are subject of appeal to the state courts, and even federal courts. For instance, the Supreme Court of Illinois in the case of People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, appears to have adopted the view that Wade and Gilbert apply only to post-indictment confrontations. There is no doubt the identification lineup which was found to be violative of defendant's right to counsel under the Sixth Amendment in Wade and Gilbert were in both cases post-indictment and defendant's counsel was not present. Holding contrary to the Illinois position is the State of California in People v. Fowler, 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643.

The Supreme Court of the State of Kansas in an identification case wrote:

'There is some authority that Wade and Gilbert apply only to post-indictment confrontations. The basis of such reasoning stems from an inference which is drawn from the language of the United States Supreme Court itself in the later case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, where the court, referring to the lineup cases, stated:

'* * * The rationale of those cases was that an accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment lineup is such a 'critical stage.' * * * ' (pp. 382, 383, 88 S.Ct. p. 970.)' State v. Griffin, 205 Kan. 370, 469 P.2d 417.

The Supreme Judicial Court of the State of Massachusetts in the case of Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343, has set some guidelines which we feel are sound. Bumpus was found guilty upon an indictment charging breaking and entering a building in the nighttime with intent to steal. The facts of that case, in short, are:

'Greenberg, a student at Northeastern University, was in bed in his room at 214 Hemenway Street, Boston, on the early morning of July 13, 1967. About 3 A.M. he heard the outside door to the building being opened. Then he heard steps on the stairs. A man entered his room through the partly open door. Greenberg feigned sleep. He observed the man walk about his room, open drawers, and look in a closet. The man left after about twenty minutes. Greenberg called the police. Officer Fallon, and apparently other officers, arrived in ten minutes. After a talk with Greenberg, Officer Fallon went out. He returned in a short time with Bumpus.'

In court Greenberg identified Bumpus as the intruder and he also said that Bumpus was with Fallon when he came back. Bumpus argued that admission of the incourt identification was in violation of Wade, Gilbert and Stovall, supra. The Court said:

'Although the operation of these decisions (announcing novel principles 'not foreshadowed in * * * (Supreme Court) cases') is prospective only under the Stovall case, 388 U.S. 293, 299--301, 87 S.Ct. 1967, the events of July 13, 1967, took place about a month after the three decisions. Accordingly, we are required to follow the principles announced by the Supreme Court of the United States in the three cases, so far as those principles may be relevant, although our decisions have never stated such principles and although, prior to the Wade case, we had not supposed that such constitutional principles existed.'

The Massachusetts court analyzed the Wade, Gilbert and Stovall cases and we borrow...