State v. Mitchell

• Decision Date: 14 January 1980
• Citation: 593 S.W.2d 280
• Parties: STATE of Tennessee, Respondent, v. Thomas MITCHELL, Jr., Petitioner.
• Court: Tennessee Supreme Court

Page 280

593 S.W.2d 280

STATE of Tennessee, Respondent, v. Thomas MITCHELL, Jr., Petitioner.

Supreme Court of Tennessee.

Jan. 14, 1980.

R. Allan Edgar, Chattanooga, for petitioner.

William M. Leech, Jr. Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Larry Young, Larry Campbell, Asst. Dist. Attys. Gen., Chattanooga, for respondent.

OPINION

HENRY, Justice.

We granted certiorari in this criminal action for the sole purpose of determining whether a criminal defendant is entitled to counsel, under the Sixth Amendment to the Constitution of the United States and Article I, Section 9 of the Constitution of Tennessee, at a post-arrest lineup. We respond in the affirmative.

I.

Defendant was convicted in the Criminal Court at Chattanooga on four charges of armed robbery and one charge of assault with intent to commit armed robbery. All sentences, except one, were made to run consecutively. We find that the award of consecutive sentences was proper under Gray v. State, 538 S.W.2d 391 (Tenn.1976).

While we find that legally these were separate and distinct offenses, State v. Black, 524 S.W.2d 913 (Tenn.1975), they all grew out of a single criminal episode which occurred on February 26, 1977, in a ladies' dress shop on Broad Street in Chattanooga. Defendant entered the store in the late afternoon, and at knife point and with drawn gun, proceeded to force the three female clerks to remove all their clothing and lie on the floor, as he systematically robbed each of them, along with the store's money.

A female patron was in the fitting room trying on dresses. He proceeded to make a physical attack upon her when she refused to disrobe and lie on the floor. She managed to escape and fled screaming into the street, followed by the defendant who ran to an automobile occupied by two others and departed the scene.

He was arrested shortly after midnight, in the early morning hours of March 1, 1977. Later that same morning he was taken before a city court judge. We assume this was for the purpose of the examination required by Section 40-604, T.C.A., which mandates a preliminary examination by a magistrate prior to commitment to jail. This statute does not prevent a temporary holding without a mittimus, Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332 (1944), and apparently defendant had been so held until city court convened.

While this is not a "preliminary hearing" in the sense contemplated by Chapter 11, Title 40, T.C.A., it is a statutorily mandated preliminary type examination before a committing magistrate. Section 40-606, T.C.A., provides that "(t)he magistrate is required to reduce the examination of the accused to writing, if he submits to an examination, and also all the evidence adduced on both sides, and is authorized to discharge, bail, or commit the accused and to take all necessary recognizances to enforce the appearance of the defendant, the prosecutor or witnesses, at the proper court."

This requirement is not new to Tennessee Law. It came into being by Chapter 16, Acts of 1815, and appeared in Section 5018, Code of 1858, in form identical to the present section.

Thus, for more than a century and a half, a probable cause type hearing has been mandatory before any accused may be committed to jail. ¹ While the record is meager, we assume the judge of the city court abided the requirements of this statute. Section 40-1101, T.C.A., requires that when a defendant is "brought before a magistrate upon arrest . . . the magistrate shall immediately inform of the offense with which he is charged, and of his right to the aid of counsel in every stage of the proceedings."

The committing magistrate very properly appointed a lawyer to represent the defendant at this hearing. At the conclusion of the hearing a Chattanooga Police Inspector advised the lawyer that a lineup was scheduled that afternoon. The attorney was not sure of the exact extent of his representation; however, as found by the Court of Criminal Appeals, he "advised the officer he could be considered as counsel until formally relieved and requested him not to speak to the defendant without counsel present."

Later that morning counsel was advised in one or more telephone calls that the lineup would be conducted at 1:30 p. m. The last such call was apparently around noon. The lawyer advised of a conflicting appointment for that hour and advised that he would like to have it around 2:00 p. m. He was under the impression that he would be called again before the lineup was held, and he advised the officer that he would like to be present. The calling officer advised that it would be held anyway. The attorney testified that "one of the ladies had some appointment that afternoon, or a conflict with that." The next communication received by the lawyer advised that "your man was picked out."

Irrespective of the respective contentions with respect to this matter, it is clear in this record that counsel had been appointed, had advised that he wanted to attend the lineup and that he knew, and acted upon the knowledge, that he represented the defendant. It is established by the police that the defendant asked that his lawyer be present; he even gave the police the professional card that his lawyer had handed him earlier that morning.

The lineup was held at 1:30 p. m. in the absence of the attorney and all four victims identified the defendant.

There is no showing in this record that there was any urgency in holding the lineup. There is no satisfactory showing that it could not just as well have been held at 2:00 p. m. as requested by the lawyer. The record shows that the lineup lasted a minimum of one (1) hour and twenty (20) minutes plus the length of time taken by the last viewer. ² The first viewer went in at 1:30 p. m., the second at 1:35 p. m., the third at 2:25 p. m., and the last at 2:50 p. m. As a minimum, the lawyer could have been present when the lineup was seen by the last two.

We agree with Judge O'Brien, writing for the Court of Criminal Appeals, that the conduct of the police was "arbitrary," "unconscionable," "erroneous" and "improper." We do not agree with his reasoning that the bail hearing in city court was not the start of adversary proceedings; and that therefore, the right to counsel did not attach. This right had already attached because Officer Charles Love had "taken out" a warrant at approximately 2:00 a. m., the morning of the lineup. As is more fully developed hereinafter, this was when the State "crossed the Rubicon" it had made a decisive commitment to prosecute.

II.

The conviction in this case was based upon the testimony of the four victims.

Early in her testimony the first witness was asked if she recognized the defendant. Defense counsel objected, and when the Trial Judge overruled the objection, requested a jury-out hearing. It was his position that the in-court identification was tainted by the lineup identification. The request was denied and the witness identified the defendant. This action on the part of the Trial Judge was erroneous. For reasons pointed out in the ensuing section he should have determined these matters on the basis of evidence elicited at a jury-out hearing.

Subsequently, the State elicited testimony that after the robbery, she next saw him at the lineup. The Court sustained an objection to a question designed to elicit an answer that she identified him, pending a determination out of the presence of the jury.

At the conclusion of her testimony a jury-out hearing was conducted. At this hearing the matter of counsel and the details of the lineup were developed. The question of whether the witnesses had a source, independent of the lineup, by which to form a basis for the identification was not developed. This was critical.

At the conclusion of this hearing the Trial Judge overruled defendant's motion to suppress the testimony of the lineup identification.

Each of the remaining witnesses made in-court identification and testified to the lineup identification.

III.

Our analysis of the issues begins with two landmark cases decided by the Supreme Court of the United States in 1967 and concludes with those of more recent vintage.

The first of these, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), involved the precise question of whether an identification made at trial must be excluded because the defendant was placed in a Post-indictment lineup without notice to and in the absence of counsel.

After a full discussion and documentation of the Court's assertion that a lineup confrontation is "peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial," 388 U.S. at 228, 87 S.Ct. at 1933, 18 L.Ed.2d at 1158, it was held that a post-indictment lineup was a critical stage of the prosecution at which defendant was "as much entitled to such aid (of counsel) as at the trial itself." 388 U.S. at 237, 87 S.Ct. at 1937, 18 L.Ed.2d at 1163. Thus, the Court said, he and his counsel "should have been notified of the impending lineup, and Counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver.' " (Emphasis supplied). Id.

Finally, in determining the question of whether to strike the in-court identification, the Court adopted the test of Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455:

(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. 388 U.S. at 241, 87 S.Ct. at 1939, 18 L.Ed.2d at 1165.

The Court then specified factors which should be considered: (1) prior opportunity to observe the alleged criminal act, (2) the existence of any discrepancy between any pre-lineup description and the defendant...