State v. Lewis

• Decision Date: 28 July 1975
• Docket Number: No. 1785-E,1785-E
• Citation: 115 R.I. 217,341 A.2d 744
• Parties: STATE v. Robert O. LEWIS. x.
• Court: Rhode Island Supreme Court

Page 744

341 A.2d 744

115 R.I. 217

STATE v. Robert O. LEWIS.

No. 1785-Ex.

Supreme Court of Rhode Island.

July 28, 1975.

[115 R.I. 233] Julius C. Michaelson, Atty. Gen., John Austin Murphy, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Daniel F. Featherston, Jr., Featherston, Homans & Klubock, Boston, Mass., for defendant.

OPINION

JOSLIN, Justice.

On March 10, 1971, Robert O. Lewis was found guilty before a judge and jury in the Superior Court on two indictments charging him with murder. Following the denial of motions for a new trial, concurrent sentences of life imprisonment were imposed, and he was committed to the Adult Correctional Institutions. Pending hearing in this court on his bill of exceptions the defendant escaped from custody, whereupon the state moved that his bill of exceptions be dismissed on the ground that he was a fugitive from justice. That motion was denied but without prejudice to the state's right to renew, either when the defendant was again in custody or on or after June 1, 1973, whichever should first occur. State v. Lewis, 110 R.I. 948, 296 A.2d 120 (1972). On June 12, 1973, the state renewed its motion, and although the defendant was still at-large the motion was denied. State v. Lewis, 112 R.I. 902, 307 A.2d 544 (1973). The defendant was later apprehended and was in the state's custody when the case was heard by us on his exceptions to the denial of his pretrial motion to suppress, and of his later motions to instruct the jury as requested and for a new trial. At that hearing the state again renewed its request that we exercise our inherent power to enforce respect for the judicial process by refusing the defendant appellate review, on the ground that his illegal escape constituted a willful flouting of that process and a voluntary abandonment of his right to obtain review. The view we take of the case, however, makes it unnecessary for us to pass on the state's request.

The Motion To Suppress

On the morning of August 2, 1969, one Clifford Hancock discovered two charred, dead bodies in the woods adjacent to Lake Road in the town of Tiverton. He called the police, who identified the dead bodies, and subsequent autopsies disclosed that the victims had been shot before being set afire.

Hancock had gone into the woods that morning because while driving along Lake Road early the previous evening he had noticed a fire burning in the nearby woods and had also seen a man, later identified as defendant, run out of the lane leading from the woods and get into the passenger seat of a station wagon backing out of the lane. The station wagon was proceeding in the same direction Hancock was headed, and as he followed it he could see the left profile of the passenger. He also noted that the wagon had New Jersey license plates and a loud exhaust.

During the ensuing police investigation, a list of names and addresses, including defendant's, was found on the body of one of the murdered men. The police then attempted to locate defendant for questioning, and on the afternoon of August 3, two officers cruising in a section of town to which he had reportedly moved saw a station wagon that generally fit Hancock's description of the one he had seen leaving the scene of the crime, except that it had Rhode Island plates fastened with what appeared to be new nuts and bolts. It was parked in a driveway, and the names on the mailbox in front of the adjoining cottage were 'Lewis' and 'Richard.'

The police then approached the residence, knocked on the door, and a Mrs. Carol Richard answered. She told them that defendant was living with her, that they both knew the victim on whose body defendant's name had been found, and that defendant was expected home later that day. She also informed them that the station wagon was hers, a fact confirmed by a later examination of the registration, and that it had not been out of the yard on the evening of August 1.

Earlier in their investigation the police had discovered paint scrapings on some embedded rocks at the murder scene, and in order to ascertain whether they had come from the parked station wegon the officers asked Mrs. Richard if they could examine the wagon. She gave her permission, and the police then inspected its underside and observed dents and scratches on the splashpan and a cross member. Because Mrs. Richard told them that defendant would be returning at about 5:30 p.m., they left and returned at that hour. When they learned that he had not yet come home, they departed and stationed themselves a block or two down the street. About an hour later Mrs. Richard, accompanied by her sister and several children, left the house, entered the station wagon, and drove toward the officers. As she passed them, they heard a loud exhaust noise similar to that attributed by Hancock to the station wagon he had seen on Lake Road. The officers thereupon apprehended Mrs. Richard and took her and the station wagon to the Portsmouth State Police barracks. During the interrogation that followed she signed a written consent form authorizing the police to search the station wegon. ¹ The police then took the wagon to a lift, elevated it, photographed its underside, and took paint scrapings for comparison with those previously taken from the rocks at the murder scene. Later that evening Mrs. Richard signed another consent form authorizing the police to search her home for firearms, nonresident registration plates, and articles of clothing deemed to be of value to the investigation.

During and following the Richard investigation the search for defendant continued, and on Monday, August 4, the eyewitness Hancock was shown more than 100 'mug shots' from the state police files in the Portsmouth barracks. He was unable to identify any of the photographs as being of the man he saw run from the woods and get into the station wagon. He did, however, select pictures of two men he thought had similar characteristics. That evening he was shown the station wagon which the police had seized the previous day, and after he had heard its exhaust noise he positively identified it as the vehicle he had seen at the murder site.

Two days later a Fall River attorney who had represented defendant on a prior occasion, and had seen him only a few days before, received a telephone call from a Sergeant Donley of the Fall River Police Department asking him to bring defendant to his office on the second floor of the Fall River police station at 10 a.m. the following morning, August 7. Although the attorney was not told why the police were interested in defendant, he agreed to comply with the request. The police then notified Hancock that they would pick him up about 9 a.m. on August 7, to take him to the station. They did so, and en route to the station one of the two accompanying detectives told him they 'were going to the Fall River (D)epartment and an attorney was going to surrender a suspect in this case * * * and there was a possibility he might submit him to a lineup.'

When they arrived at the station shortly before 10 a.m., Hancock and one of the detectives sat on a bench in the hallway of the second floor while the other detective went to search for Sergeant Donley. Soon thereafter Hancock saw defendant, his attorney, and Mrs. Richard approaching him as they walked toward Sergeant Donley's office. He recognized defendant as the man he had seen run from the woods onto Lake Road and get into the station wagon, and he so advised the detective seated next to him. The defendant was then arrested on a fugitive warrant for murder. Later that day, Hancock was shown a photograph of defendant and made a formal statement concerning the identification. Eight days later, on August 15, the police prepared and showed Hancock a rendition warrant, which was accompanied by the same photograph of defendant that Hancock had seen on August 7 after his initial 'hallway' identification.

Subsequent identifications of defendant were made by Hancock on the following occasions: on Novomber 7, 1969, at a bail hearing held in the Superior Court in Newport (there were 15 spectators in the courtroom at the time, and defendant was seated in the last row of the spectators' section between two police officers. One policeman was in uniform, and the other was in civilian clothing and was known personally by Hancock); at a probable cause hearing held on December 19, 1969; in December 1970, when a hearing on defendant's motion to suppress was conducted; and finally at the trial in March 1971.

The defendant moved to suppress both the Hancock identification testimony and the evidence relating to the station wagon. First he contends that, independent of any right to counsel claim, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), require the suppression of the Hancock identification because it stemmed from an initial confrontation, in the hallway of the Fall River police station, that was so unnecessarily and impermissibly suggestive as to give rise to a very substantial likelihood of subsequent irreparable misdentification. And he says that here the high probability of misidentification, admittedly the primary evil that Stovall was intended to avoid, becomes evident upon the application of the criteria set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972). The defendant admits, however, that the Stovall-Simmons standard is two-pronged and that the ultimate jury question of the likelihood of misidentification is not reached at the suppression hearing stage unless it is first domonstrated that the initial confrontation was suggestive. United States v. Sutherland, 428 F.2d 1152, 1155 (5th Cir. 1970). On that issue the substance of defendant's argument is that Hancock, who was taken to the police station to view a suspect, had been ...