State v. Randolph
| Decision Date | 22 January 1971 |
| Docket Number | 37552,Nos. 37551,s. 37551 |
| Citation | 186 Neb. 297,183 N.W.2d 225 |
| Parties | STATE of Nebraska, Appellee, v. William RANDOLPH, Appellant. STATE of Nebraska, Appellee, v. Robert COLEMAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Each case must be considered on its own facts, and a conviction based on eyewitness identification at trial following pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
2. Where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise.
Paul E. Watts, Michael N. Schirber, Omaha, for appellants.
Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.
Heard before CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
Defendants, William Randolph and Robert Coleman, were charged with assault with intent to rob; and imprisoning a person for the purpose of compelling the performance of an act by another. The cases were consolidated for trial. A jury found the defendants guilty on both counts. They were each sentenced to 2 to 7 years on the assault count, and to life imprisonment on the kidnapping count.
On the evening of July 9, 1969, Valdis Lusins and his wife, Nancy, were entertaining their neighbors, William and Celia Woodward at the Lusins' home in Omaha, Nebraska. Sometime around 11 p.m., two men entered the Lusins' residence, both armed with guns. They were not masked or disguised, although the larger man wore a hat, sun glasses, and rubber gloves. The larger of the two gunmen forced Mr. Lusins to change his clothes. For purposes of robbery, he then forced Lusins to drive to a supermarket near 72nd and Dodge Streets. Lusins was the manager of the supermarket. The smaller of the two gunmen stayed in the Lusins' home guarding Mrs. Lusins and the Woodwards. After extended investigation at and around the supermarket, the robbery attempt was abandoned when it appeared that a security guard and police cars were on and near the premises. After some 30 to 45 minutes, Mr. Lusins and the larger gunman returned to the Lusins' home. The gunmen remained in the Lusins' home for an additional 5 or 10 minutes, warned and threatened the witnesses about calling the police and about later identification, and left. The entire episode took approximately 1 hour.
During that time, all four of the witnesses had an opportunity to observe both gunmen for some 5 minutes at the beginning of the incident and 5 to 10 minutes at the conclusion while in the well-lighted Lusins' home. For 30 to 45 minutes Mr. Lusins had had an extended and thorough opportunity to observe the larger gunman inside and outside the car and in varying lighting conditions. The other three witnesses, during the same period of time, had observed the smaller gunman in the Lusins' home.
Some 15 minutes after the departure of the gunmen, the police were called. Upon their arrival, descriptions of the two gunmen were given to the police. On the following day, Mr. Lusins went to the police station and was shown several hundred pictures in an effort to identify the gunmen. He did not identify anyone. On at least one other occasion, a policy officer brought a single photograph to the store which Mr. Lusins was unable to identify. On July 25, 1969, a police officer brought six photographs, three each of two different men, to Lusins' store. Lusins promptly and positively identified the two men pictured as the gunmen. The pictures were later shown to Mrs. Lusins at her residence. Thereafter they were shown to the Woodwards separately. All four witnesses made a positive identification of the gun men. At the time of the identification by the four witnesses on July 25th, the two defendants were not in police custody in Nebraska but apparently were in custody in Sacramento, California. One of the three pictures of each defendant which was shown to each of the four witnesses bore an identification from the sheriff's department of Sacramento, California.
Mr. and Mrs. Lusins testified at the preliminary hearing and at the trial. Mr. and Mrs. Woodward testified at the trial. All four witnesses testified that their identifications were based upon seeing the men at the time of the crime and nothing else. Immediately following the impaneling of the jury, a hearing was held outside the presence of the jury on defendants' motions to exclude the testimony of pretrial identifications and in-court identifications. The court determined the identification testimony to be admissible. The motions were overruled and the trial proceeded.
The defendants' assignments of error rest primarily on the contention that the photographic identifications were impermissibly suggestive and tainted the in-court identification sufficiently to violate due process of law. Defendants also contend that they were entitled to counsel under the rules established by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
We think it clear that this case does not fall within the post indictment lineup area circumscribed by Wade. Neither is it reasonable to term the photographic identification here a critical stage in a prosecution which has not yet focused on anyone. Even where the defendant was under arrest, Judge Friendly said in United States v. Bennett, 409 F.2d 888 (2d Cir., 1969):
The defendants' claim to a right to counsel at the pretrial, preindictment, prearrest photographic identification by witnesses involved here is completely untenable.
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