State v. Isaacs

• Decision Date: 16 December 1970
• Citation: 265 N.E.2d 327,24 Ohio App.2d 115
• Parties: , 53 O.O.2d 331 The STATE of Ohio, Appellee, v. ISAACS, Appellant.
• Court: Ohio Court of Appeals

Page 115

24 Ohio App.2d 115

265 N.E.2d 327, 53 O.O.2d 331

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

Court of Appeals of Ohio, Third District, Allen County.

Dec. 16, 1970.

Syllabus by the Court

1. A defendant charged and tried separately as principal for the armed robbery of a filling station attendant, where the evidence tends to prove his implication only as an aider and abettor and as driver of the getaway car for the principal offender, is entitled in defending the issue of the actual commission of the crime by or the guilt of the principal, to assert the right which the principal would have had, if on trial, to have excluded from evidence testimony as to a lineup identification of the principal made without presence of counsel for the principal at the lineup and evidence consisting of an in-court identification of the principal tainted by the unconstitutional lineup identification.

2. Admission of such testimony and evidence over the objection of the alleged aider and abettor constitutes prejudicial error requiring reversal and a new trial.

Lawrence S. Huffman, Lima, for appellee.

Raymond W. Eaton, Lima, for appellant.

GUERNSEY, Judge.

Defendant Robert L. Isaacs, appellant herein, as the alleged driver of the getaway car and an aider and abettor, was convicted by the Common Pleas Court of Allen County of the armed robbery, on August 1, 1967, of a filling station. The alleged principal offender was his brother, James Isaacs. It was claimed that James Isaacs while wearing a woman's silk stocking over his head to conceal his facial features, held up the filling station attendant at gunpoint. There were no other eyewitnesses to the holdup. Upon trial the station attendant was called as a witness for the state and upon direct examination testified, over objection, that at a four man lineup conducted at the police station within two hours of the holdup, without the presence of counsel, which included the defendant, his brother and a third man apprehended with them, 'I seen the man that had similar looks to the man that was in the station. * * * I can't say for sure. I'm not making a positive identification, but I'd say the man looked similar to the man that was in the station.' The attendant further testified on direct examination, over objection, when James Isaacs was brought into the courtroom, that 'he looks similar to the man' (in the lineup). When asked, 'can you say whether or not this is the man who was in the station armed with a pistol and with a mask over his head?' he replied, 'I can't say for sure. I mean there's so much-the looks are so much alike.' The only other testimony by the station attendant as to the identification of James Isaacs as the principal offender was elicited thereafter on cross-examination.

On this state of the record the defendant for his sole assignment of error asserts that the trial court erred by admitting into evidence the lineup and in-court identifications of James Isaacs without making a determination that the in-court identification had an origin independent of the identification made at the lineup.

The crime for which the defendant was indicted and tried occurred after the decisions of the Supreme Court of the United States, on June 12, 1967, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, were rendered. See also Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The trial proceedings here were thus subject to the holdings of the Supreme Court in the Wade case and the Gibert case that a post-indictment lineup is a critical stage of the proceedings at which the Sixth Amendment's right to counsel applies, that unless a suspect has counsel present or waives this right the evidence that a witness identified the suspect at such a lineup is inadmissible at trial, and that if a lineup is held without counsel or a waiver of counsel the witness's in-court identification is inadmissible unless the prosecution shows that the in-court identification is not the product of the prior unconstitutionally held lineup.

Although some courts have restricted the Wade and Gilbert rules to post-indictment confrontations, as did the Supreme Court of Illinois in People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, the better view, the one most responsive to the reasoning in the Wade and Gilbert cases, and the view which we adopt here is that the Wade and Gilbert rules extend 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 in the Stovall case, supra. Compare, Rivers v. United States, 5 Cir., 400 F.2d 935; People v. Fowler, 270 Adv.Cal.App.2d 717, 76 Cal.Rptr. 1; People v. Martin, 273 Adv.Cal.App.2d 724, 78 Cal.Rptr. 552; State v. Singleton, 253 La. 18, 215 So.2d 838; Palmer v. State, 5 Md.App. 691, 249 A.2d 482; Thompson v. State (Nev.), 451 P.2d 704; State v. Wright, 274 N.C. 84, 161 S.E.2d 581; Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.); and State v. Hicks, 76 Wash.2d 80, 455 P.2d 943. The rules would thus apply to most lineups because a suspect is not ordinarily placed in a lineup until, as here, the investigatory process had disclosed his probable implication in the crime.

Although the lineup and the in-court identifications, as testified to here, were not positive identifications, the testimony as to the similarity between James Isaacs and the man identified in the lineup, who was also similar in appearance to the person effecting the holdup, had some probative value in determining whether James Isaacs was the holdup man. It did not exclude him from such identity but tended, at the least, to place James Isaacs within a limited group of persons whose appearance was the same as that of the holdup man and this testimony may have been one of the factors which convinced the jury beyond a reasonable doubt that he was one and the same person as the holdup man. The in-court identification could not stand independently of the taint of the lineup identification for the prosecution did not supply the necessary foundation that the in-court identification was not the product of the prior unconstitutional lineup procedures.

Under these circumstances, had James Isaacs, the alleged principal, been on trial, he could have successfully demanded the exclusion from evidence of the testimony as to both the lineup and the in-court identification.

The issue thus becomes, does an aider and abettor have the same constitutional right to have excluded from evidence a lineup identification of the principal offender and an in-court identification of the principal offender tainted by the lineup identification because of the unconstitutionality of the lineup identification arising from the lack of counsel for the principal at the lineup?

The prosecution has ably argued against the aider and abettor having such right and has cited numerous cases as authority for its position. In our opinion each of these cases is distinguishable.

Jones v. State, 14 Ohio Cir.Ct.R. 363, involves only the question of the sufficiency of an indictment against a person indicted jointly with the defendant and has no bearing on the adminissibility of evidence against an aider and abettor which would not have been admissible against his principal.

In State v. Ravenell (1964), 43 N.J. 171, 203 A.2d 13, although a headnote to the opinion states that a co-defendant had no standing to attack the voluntariness of an incriminatory out of court statement of the other defendant when the same was confined and received in evidence against the other defendant alone it appears in the court's opinion that such procedure could not have been prejudicial to the appealing co-defendant because the defendant making the statement also actually testified against the appellant as to all matters in the statement which might have been prejudicial to the appellant.

State v. Cox, Sup.Ct. of Missouri (1961), 352 S.W.2d

665, has no relevance to our case for it pertains only to instructions to a jury having reference solely to the other defendant, and has no relation to the admissibility of evidence.

Hopkins v. State (1968), 5 Md.App. 284, 246 A.2d 288, also has no relevance for it pertains only to the personal privilege against self-incrimination of an accomplice who testified against the appellant, a privilege which could be, and apparently was, waived by the accomplice. Similarly, here, had James Isaacs chosen to testify against the appellant, Robert Isaacs, his testimony would have been admissible even though it might have tended to incriminate James.

The opinion in United States v. Simmons (C.C.A. 2, 1960), 281 F.2d 354, does not support the statement in a headnote that the denial of a co-defendant's motion to have the government produce an agent's notes of a conversation he had with a witness would not give the appellant standing to complain that the denial had prejudiced him, for the court says at page 358:

'* * * No motion was made, however, at this time to have these notes produced; thus defendant cannot now contend that the fact that he did not receive them constitutes reversible error. * * * But the denial of Coppola's motion should not give Simmons standing to complain on this appeal that the denial prejudiced him. And even if Simmons does have such a standing we would have to hold the denial proper * * *.'

Nor does the opinion of the court in People V. Cobb (1964), 52 Ill.App.2d 332, 202 N.E.2d 56, support the case's headnote that a party cannot assign for error that which does not affect him although it might be harmful to others not complaining, for in that case there was evidence of identification of the appellant which was independent of the testimony of the identification complained of. With respect to the latter the court said:

'* * * At no time during the trial did ...