State v. Redmond

• Citation: 448 P.2d 938,75 Wn.2d 62
• Decision Date: 13 December 1968
• Docket Number: No. 40005,40005
• Parties: STATE of Washington, Respondent, v. Patrick T. REDMOND, Appellant.
• Court: United States State Supreme Court of Washington

Page 62

75 Wn.2d 62

448 P.2d 938

STATE of Washington, Respondent, v. Patrick T. REDMOND, Appellant.

No. 40005.

Supreme Court of Washington, Department 2.

Dec. 13, 1968.

Warren Hardy, Seattle, for appellant.

Charles O. Carroll, Prosecuting Atty., Donald Skinner, Deputy Pros. Atty., Seattle, for respondent.

POYHONEN, Judge. ^*

Appellant, Patrick T. Redmond, appeals from a conviction of robbery. Trial was to a jury.

Appellant's sole assignment of error is that the trial court erred in denying the appellant's motion to suppress the identification of the appellant by the witness, Virginia Rohn, the hold-up victim.

On June 20, 1967, Virginia Rohn was the owner and operator of a beverage store at 74th and Greenwood in Seattle. Her testimony is that about 10:50 p.m. on that date she was alone in the store and that:

A. Well, this fellow came in and walked over to kind of the center of the room, looking around, and I said, 'What were you looking for?' He said, 'Do you have * * *' And he said some kind of mix that I never heard of before.

I said, 'No, I don't have anything like that, never heard of it before.' He said, 'Well, maybe your husband could get it,' and I said, 'I don't have a husband.' He said, 'Or your son,' and I said, 'Oh, he's busy,' or something to that effect.

Then he walked over and stood over halfway between the counter and going out in line with the door, and I said, 'Maybe that's something you find on the East Coast.' I said, 'If you're from the East, they have things back there that we never even hear of out here.' And I said, 'Will you spell it for me,' I said, 'and I'll see if I can get it.'

I took something and was looking down and starting to write the first couple of letters, and he walked over to the counter and he said, 'Oh, never mind that,' he said, 'this is a holdup,' or stickup, I don't know which word he used, but something to that effect. I glanced up from my writing and here was this gun pointed over the counter at me. I don't know whether he had it in his pocket, but most of it was concealed, except the front part of it.

She further testified that during most of this period of time he was about 6 feet from her; that at his command she took money from the till, placed it in a paper bag, which he took and then left the store; that immediately thereafter she called the police; that he was not masked, and that she was able to see his face, observe his complexion, color of his hair, and gain an impression as to his approximate height and weight, but that she does not remember how he was dressed.

Five days later, on June 25, 1967, Virginia Rohn identified the appellant in a police lineup of 5 men as the one who had robbed her. Eighteen days later she again identified him at a hearing held in a justice court setting.

The appellant filed a pre-trial motion to suppress the eye-witness identification by Virginia Rohn for the reason that appellant had been denied the right to have his lawyer present during the police lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The trial judge held a full day's preliminary hearing to determine whether the identification by Virginia Rohn was admissible in evidence. After the hearing, the trial court: (1) suppressed the identification of the appellant resulting from the lineup and ruled out any testimony regarding Virginia Rohn's identification of the appellant in the lineup; and (2) made a finding that Virginia Rohn was able to make an untainted in-court identification.

United States v. Wade, supra, holds that the Sixth Amendment guaranty of the assistance of counsel to a defendant extends to police lineups and that a subsequent in-court identification by a witness who was present at the lineup is inadmissible unless the prosecution can show by clear and convincing evidence that the in-court identification has an independent source uninfluenced by the lineup. The court at 240 of 388 U.S., at 1939 of 87 S.Ct., stated:

We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.

That the trial judge fully understood and applied the rule of the Wade case is readily apparent from his oral decision at the conclusion of the pre-trial hearing. We quote in part:

Now the problem is to determine the application of the Wade case and the two companion cases to this particular situation. There are some rather significant differences, but I am going to give Mr. Redmond the benefit of the doubt and apply the rules announced by these cases to this situation. I will accordingly hold that because he was not afforded the opportunity to contact counsel in connection with the lineup, that it voids that particular part of the procedure.

The inquiry, then, is whether or not that is fatal to the testimony of Virginia Rohn, or whether the taint of the lineup does not reach her. The Supreme Court spoke, in concluding Wade, as follows:

'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 (83 S.Ct. 407, 9 L.Ed.2d 441), * * * 'Whether, granting establishment of the primary...