State v. Jackson

• Decision Date: 21 April 1971
• Docket Number: No. 70-311,70-311
• Citation: 26 Ohio St.2d 74,269 N.E.2d 118
• Parties: , 55 O.O.2d 127 The STATE of Ohio, Appellee, v. JACKSON, Appellant.
• Court: Ohio Supreme Court

Page 74

26 Ohio St.2d 74

269 N.E.2d 118, 55 O.O.2d 127

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

No. 70-311.

Supreme Court of Ohio.

April 21, 1971.

Syllabus by the Court

1. In-court identification of an accused is admissible in a criminal case, where such identification is based upon independent observation of the accused prior to the line-up at which he was identified, and is not the product of an improper line-up.

2. In determining whether in-court identification was the product of an improper line-up or was based upon independent recollection and observation of the accused by the witness, the totality of the circumstances surrounding the identification must be considered.

At about 8:00 p. m. on the evening of February 17, 1968, a man entered the City Cut Rate Store in Toledo, Ohio. Kenneth Grunden, the owner, and Harold Kite, a clerk, were in the store. He ordered a milkshake from Kite and then asked Grunden about some gloves. He and Grunden went toward the front of the store to look at the gloves, and when Grunden turned around the man produced a gun and demanded money. Grunden took the money from the cash register and gave it to him. The man then register and gave it to him. him as he backed out of the store. The robber wore no hat or a mask, and Grunden was face-to-face with him as he backed out of the store. Some three days later, Grunden tentatively identified appellant as the robber from a group of mug shots shown to him by the police, but stated that he wanted to see him in person before he could be positive. About a month later, appellant was in custody on another charge and a line-up was conducted. Just prior to the viewing, the police showed Grunden the same mug shot from which he had already identified appellant as the robber. Grunden picked appellant out of the line-up. Appellant's counsel was present at the line-up, but not when Grunden was shown the photograph.

During the trial, appellant's counsel learned of the fact that Grunden was shown the photograph just prior to the line-up, and moved that the identification testimony be struck on the grounds that the police procedure at the line-up was unduly suggestive. The objection was overruled.

Appellant was convicted, and the judgment of conviction was affirmed by the Court of Appeals. The case is presently before this court pursuant to the allowance of a motion for leave to appeal and as an appeal as of right.

Harry Friberg, Pros. Atty., and Anthony G. Pizza, Toledo, for appellee.

Cannon, Burns, Holt & Mickel and Robert A. Burns, Toledo, for appellant.

HERBERT, Justice.

The basic question raised by this appeal is whether exhibition of the suspect's photograph to a witness immediately prior to the line-up so tainted the witness's subsequent in-court identification as to render it inadmissible.

It must be noted at the outset that appellant's counsel was present at the line-up, and no objection is made to the composition of the line-up itself. The sole question is whether exhibition of the appellant's photograph to Grunden so influenced his identification as to render it inadmissible.

It is appellant's position that even though he was represented by counsel, the precepts enumerated in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1969), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Foster v. California (1969), 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, were violated when Grunden was shown the photograph without the knowledge and consent of appellant's counsel.

Those cases relied upon by the appellant hold that the line-up is a stage of criminal procededings at which the accused is entitled to representation, and that line-ups must be conducted in a fair and impartial manner. They do not, however, bar line-up identifications, or even hold that where there is an improper line-up an in-court identification by the witness is necessarily inadmissible.

The prevailing theme which appears throughout those cases is that an incourt identification of the accused is proper if the witness's identification is based upon independent observation of the accused prior to the line-up, and is not a result of an improper line-up. If the witness's identification is of independent origin and is not based upon an exploitation of the accused's rights by an improper line-up, it is admissible. In other words, the fact that a line-up was improperly conducted does not bar the in-court identification by the witness unless such identification was a direct result of the line-up.

The test as to admissibility is set forth in the opinion in Wade, 388 U.S. at page 241, 87 S.Ct. at page 1939, and reads:

'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, 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.' 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. * * *'

In determining whether the incourt 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...