State v. Iron Thunder

• Decision Date: 07 December 1978
• Docket Number: No. 12368,12368
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Benny IRON THUNDER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 299

272 N.W.2d 299

STATE of South Dakota, Plaintiff and Respondent, v. Benny IRON THUNDER, Defendant and Appellant.

No. 12368.

Supreme Court of South Dakota.

Argued Sept. 15, 1978.

Decided Dec. 7, 1978.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

John T. Hughes, Sturgis, for defendant and appellant.

MORGAN, Justice.

This is an appeal from the Eighth Judicial Circuit of a conviction for rape and second-degree burglary. Defendant appeals on two principal grounds: (1) The trial court's denial of a motion to suppress an allegedly suggestive photographic lineup and the subsequent in-court identification; and (2) the trial court's failure to either dismiss the case or strike the testimony of two key prosecution witnesses, both of whom invoked the Fifth Amendment during cross-examination. We affirm the conviction.

In the early morning hours of May 27, 1977, at approximately 5:00 a. m., defendant went to the Belle Fourche home of a 70-year-old widow, broke in through a window, and raped her. The victim immediately went to the house of her niece and nephew nearby, and, after having told her niece and nephew what had happened, the police were called.

The Butte County Sheriff and the Belle Fourche Chief of Police arrived shortly and talked to the victim. She gave a description of the rapist as "rather large and dark complected with a large round stomach" and having a wide gap between his teeth. Another officer recognized the description as fitting defendant, Benny Iron Thunder, with whom he had come into contact the previous evening.

Upon determining that Iron Thunder was a suspect, the sheriff, the chief and another officer went to the home of defendant's mother, which was adjacent to the victim's home, to check on defendant's whereabouts. They were told that defendant was sleeping in the van in front of the house. The officers then went to the van, woke defendant, and asked him a few questions. It is unclear whether defendant had been read his Miranda rights at this point. Defendant was then taken to the police station and his Miranda rights were read to him. Some pictures were taken of defendant and he was allowed to rest.

At approximately 9:00 a. m., the sheriff and chief of police took the pictures of defendant, along with six other pictures selected from the police files, and showed them to the victim who readily identified defendant as the man who had raped her.

Shortly thereafter, defendant, after again having been read his Miranda rights, told the police that he had broken into the house and raped "the lady in there". He then wrote out and signed a statement to that effect.

Following a preliminary hearing, defendant was bound over for trial. Defendant then filed a motion to suppress the photographic lineup and his confession. A suppression hearing was held and defendant's motions were denied.

On the day before the trial, the state's attorney was told by the chief of police that certain statements he and the sheriff had made at the suppression hearing with respect to the events which took place at the van were incorrect. It appears that the incorrect statements were those concerning whether, and when, defendant was read his Miranda rights. The state's attorney immediately contacted the trial court and defendant's counsel and informed them of what the chief of police had told him.

Various motions were made and, following a continuance, the trial court ordered that the prosecution not be allowed to present any evidence or elicit any testimony on direct examination concerning the events or conversations which occurred at the van. Defense counsel, however, was not prevented from going into said events or conversations on cross-examination. However, at trial, when defense counsel cross-examined the chief of police and the sheriff as to events and conversations at the van, both witnesses refused to answer, invoking their rights under the Fifth Amendment to the United States Constitution.

Defendant was found guilty by the jury of rape and second-degree burglary and was sentenced to fifteen years and ten years on the respective counts, to be served concurrently.

The first issue presented is whether the photographic lineup from which the victim first identified the defendant was impermissibly suggestive and, if it was, whether the victim's subsequent in-court identification at the trial was tainted by the impermissibly suggestive photographic lineup.

It is well settled that in-court identifications are not admissible at trial when they stem from a photographic identification lineup procedure that is so impermissibly suggestive as to result in a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Barcley, S.D., 225 N.W.2d 875 (1975); State v. Sahlie, S.D., 245 N.W.2d 476 (1976). The burden of establishing the impermissible suggestiveness of the photographic lineup is upon the party seeking to suppress the evidence. State v. Barcley, supra.

However, even though the photographic lineup may be considered to be impermissibly suggestive, the in-court identification is admissible upon the state's showing, by clear and convincing proof, that the in-court identification had an independent origin, i. e., based upon observation of the suspect by the witness other than the photographs shown to the witness. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Sahlie, supra.

The initial determination to be made is whether the photographic lineup was impermissibly suggestive. There seem to be three areas of attack as to the suggestiveness: (1) The fact that one picture shows the bare chest and stomach of defendant and that in the picture showing defendant's face, his shirt is partially open at the collar; (2) the fact that defendant is the only individual not having an identification board hanging around his neck; and (3) the allegation that the individuals in the other photographs do not sufficiently resemble defendant.

This determination is, to a great extent, a subjective one. It appears to this court that the photographic lineup was impermissibly suggestive in the first two respects. While the array of photographs did not all look alike with respect to the resemblance of the subjects, the fact that there was one photograph of only the bare chest and stomach of an unidentified subject, coupled with the fact that defendant's photograph showed a shirt partly open at the collar, strongly suggested a link between the two. Since the victim had particularly commented on the rapist's big belly in her initial interview, there can be no question that the inclusion of the single torso shot was an attempt to suggest identification. Furthermore, displaying five photos of subjects with identification boards and one without impermissibly suggests which is the current suspect. In photographing defendant for the obvious purpose of identification, the officers could have used an identification board or in the alternative, when displaying the photographs, identification boards could have been trimmed from the other photographs.

Having determined that the photographic identification was impermissibly suggestive, we must then consider whether the in-court identification by the victim had an independent origin.

This court has on two previous occasions dealt with the problem of proving independent origin for identification in situations where the lineup procedures were not deemed proper. In State v. Keeling, S.D., 233 N.W.2d 586 (1975), this court faced the problem for the first time. In that case, although defendant had been subjected to an improper lineup procedure, which this court condemned, it was ruled that the in-court identifications of defendant by the witnesses were not so tainted by the improper procedures so as to make the in-court identifications inadmissible. In so ruling, this court followed the analysis of the United States Supreme Court in United States v. Wade, supra, where the court found that the question of whether...