State v. Rowe

• Decision Date: 25 January 1974
• Citation: 314 A.2d 407
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Forrest A. ROWE.

Page 407

314 A.2d 407

STATE of Maine v. Forrest A. ROWE.

Supreme Judicial Court of Maine.

Jan. 25, 1974.

Peter G. Ballou, Asst. Atty. Gen., Philip Merrill, Law Student, Portland, for plaintiff.

Basil A. Latty, Robert N. Walker, Yarmouth, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

In a trial in the Superior Court (Cumberland County), defendant was found guilty by jury verdict of the offense of uttering a forged instrument in violation of 17 M.R.S.A. § 1501. The defendant was sentenced to imprisonment in the Maine State Prison for a period of not less than one and one-half years and not more than three years. Defendant has appealed from the judgment of conviction. We deny the appeal.

The State's evidence was presented by four witnesses: Carl Rawstrom, the individual whose name was forged; Nancy Caufield, assistant manager of the Westgate branch of the Portland Savings Bank; George St. Pierre, a Freeport barber; and John Whitmore, a Portland police officer.

Mr. Rawstrom testified that he maintained savings accounts at the Portland Savings Bank, that he made no withdrawal on August 31, 1972, and that the signature on the withdrawal slip in question was not his own. He further testified that a passbook on one of his savings accounts was missing from the place he had last left it, his automobile glove compartment, on August 31, 1972.

Miss Caufield testified that on August 31, 1972, a man approached her in the bank, presented a passbook belonging to Carl Rawstrom, and told her he wanted to withdraw one thousand dollars ($1,000) from his account. Miss Caufield made out the withdrawal slip, and the man signed it with the name Carl E. Rawstrom. Upon checking the signature with a specimen, Miss Caufield became concerned with the comparison. She then requested the assistance of the branch manager who, after inspecting the customer's social security card, approved the withdrawal. Because of her concern over the identification, Miss Caufield activated a remote camera which photographed the customer during the transaction. She estimated that the entire transaction lasted ten to fifteen minutes.

Because of the concern surrounding the withdrawal, the main office of the bank was notified of what transpired. Upon contacting Mr. Rawstrom, it was learned that the withdrawal was by means of forgery. Later the same day, the Portland police came to the bank and removed the camera. These photographs were developed, and one was shown to Miss Caufield, who confirmed that it was one she took by means of the remote camera. She also made an identification of the forger from 'mug shot' photographs shown to her by the police.

The bank photograph was also shown to Officer John Whitmore of the Portland Police Department, who recognized the photographed individual as a former fellow employee at Cumberland and York Distributors. That person was the defendant in this case.

Based on the photographic identifications, the defendant was taken to police headquarters for questioning on September 1, 1972. That same day, Nancy Caufield made a station house identification of the defendant as the man who had made the fraudulent withdrawal.

It is the circumstances surrounding Miss Caufield's station house identification that give rise to the defendant's appeal. The defendant was in a small room. Also present in the room was Police Detective Giobbi, who Miss Caufield knew was a police officer. She viewed the defendant through a one-way mirror. The defendant was not aware of the fact that he was being observed and had no lawyer present with him. Miss Caufield was also able to hear the defendant speaking to the police officer. The testimony suggests that a positive identification was made at this time.

In her trial testimony, the witness noted that at the time of the station house viewing the defendant had a crew cut as compared to his long hair of the previous day, and also that he was minus his mustache. George St. Pierre, a Freeport barber, testified that he gave the defendant a haircut on the afternoon of August 31, 1972. When the defendant entered the barber shop, he had 'fairly long, little bushy, unruly' hair and a mustache. Mr. St. Pierre gave him a crew cut.

Evidence of the photographic identifications was introduced in direct examination without objection as was Miss Caufield's in-court identification of the defendant as the man who signed the withdrawal slip. '. . . Recognizing that M.R.Crim.P., Rule 51, requiring timely objection to evidence and a statement of the grounds therefor, has the 'force of law' and applies equally to 'constitutional rights,' we held under similar circumstances in State v. Levesque (1971-Me.) 281 A.2d 570, 577 that the identification issue must be deemed waived unless 'the evidence complained of admitted without objection is so highly prejudicial and so taints the proceeding as virtually to deprive the aggrieved party of a fair trial.' As we said in Levesque, 'The instant case presents no such problem. " State v. Carlson, Me., 308 A.2d 294 (1973). Evidence of the out-of-court confrontation and identification at police headquarters was elicited under cross-examination.

It is the contention of the defendant in this appeal that the pretrial station house identification violated his right to counsel under the Sixth Amendment to the United States Constitution, his right to due process of law under the Fourteenth Amendment, and so tainted the in-court identification as to make it inadmissible as evidence.

The witness, Nancy Caufield, had five opportunities for either corporeal or photographic confrontation with the person she repeatedly identified as the forger. The first confrontation was during the commission of the crime itself. She observed the forger in bright light and at very close proximity. Furthermore, her suspicion as to the customer's identity made her observations particularly careful. She was sufficiently concerned so as to contact the branch manager, activate a remote camera, and inform the main bank office of the withdrawal. There can be no doubt that she had an opportunity to form a highly reliable and permanent impression of the forger's physical features.

The second confrontation was with the photograph developed from the remote camera she had activated. There can be no doubt that this photograph was of the same person who had, in fact, made the withdrawal. Her viewing the photograph after its development was not an identification of any known person, but rather a confirmation that the photograph was the one she had taken the previous day.

The third confrontation was when Miss Caufield was shown a series of police mug shots. These photographs were shown the day after the crime was committed, and the police displayed several photographs of which only one was of the defendant. This Court has acknowledged that photographic identifications may occasionally lead to a misidentification of an accused. Notwithstanding the hazards involved, however, we have also recognized the great value of this police technique in criminal law enforcement. State v. Levesque, supra. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court refused to prohibit the employment of investigative photographic identification. The Supreme Court held

'that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a 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.'

The photographic identification procedure in the instant case was proper and necessary. Several photographs were shown to the witness, all being of the 'mug shot' type, with none of a greater size or of a more suggestive nature than the others. The showing was just one day after the crime was committed, while the image of the forger was fresh in the witness' mind, and while the criminal was still unapprehended. The display constituted an honest effort by the police to identify the forger so as to effect an efficient investigation of the crime. Nothing in this procedure was so highly suggestive in character as to subject the witness to the likelihood of making irreparable misidentification.

The fourth confrontation was the station house identification through the use of the one-way mirror. The defendant claims that this 'show up' violated both his Sixth Amendment right to counsel and his Fourteenth Amendment due process rights.

The Sixth Amendment claim does not require lengthy discussion. Defendant argues that he was entitled to have a lawyer present at the pretrial identification on September 1, 1972. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) established that an accused is entitled to counsel at any critical stage of the prosecution, and that a post indictment lineup is such a critical stage. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court refused to extend further the Wade-Gilbert provisions for presence of counsel at identification, holding that the Sixth Amendment right to counsel did not apply to a police-arranged investigatory confrontation before any formal charges had been brought.

'The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the Government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies...