State v. Sadler

• Decision Date: 21 May 1973
• Docket Number: No. 10987,10987
• Citation: 511 P.2d 806,95 Idaho 524
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Hohn Lawrence SADLER and Ronald Glen Sever, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 806

511 P.2d 806

95 Idaho 524

The STATE of Idaho, Plaintiff-Respondent, v. Hohn Lawrence SADLER and Ronald Glen Sever, Defendants-Appellants.

No. 10987.

Supreme Court of Idaho.

May 21, 1973.

Brauner, Fuller & Doolittle, Caldwell, for appellant Sadler.

Gary L. Morgan, Caldwell, for appellant Sever.

W. Anthony Park, Atty. Gen., James G. Reid, Asst. Atty. Gen., Boise, C. Robert Yost, Pros. Atty. for Canyon County, Caldwell, for plaintiff-respondent.

The previous opinion in this case, January 8, 1973, is withdrawn on denial of rehearing, May 21, 1973, and this opinion is hereby substituted therefor.

BAKES, Justice.

In this appeal, appellants John Sadler and Ronald Sever are challenging their convictions of robbery in the district court of the Third Judicial District. The principal issue in their appeal involves the legality of a witness identification of appellants as perpetrators of the robbery. The witness made the identification at the police station shortly after appellants were apprehended, and in the absence of counsel for appellants. Appellants contest the admissibility of evidence of this police station identification as a violation of their 6th amendment rights to counsel and in contravention of due process guarantees of the 14th amendment. Appellants also challenge the admissibility of an in-court identification of appellants made by the same witness, claiming that that identification was tainted by the illegal police station confrontation. In addition, appellant Sadler contends that the prosecution withheld information which would have aided Sadler in the preparation of his defense.

Prior to consideration of appellants' arguments, it is necessary to present an abridgment of the facts leading up to appellants' prosecution and the challenged identification.

At approximately 11:55 p.m. on March 6, 1971, Billy Firebaugh, the clerk of the Seven-Eleven Store on 12th Avenue in Nampa, was robbed by an armed man whose face was masked by a nylon stocking. Because of the mask, Firebaugh was not able to identify the robber but managed to observe his clothing and general physical build. Just prior to the robbery, Walden Downs, the proprietor of a service station located across 12th Avenue from the Seven-Eleven Store, had returned to his station to secure it for the night. On arriving, Downs noticed a car parked next to his station. At about 11:45, Downs watched the car move across 12th Avenue and stop in an alley behind the Seven-Eleven Store. Downs saw a man alight from the vehicle, 'put something over his head,' and enter the store. Downs thought the man pulled a gun on Firebaugh. Concluding that some criminal activity was occurring, Downs left his station in his latemodel pickup and drove slowly down the alley behind the Seven-Eleven Store for the purpose of identifying the vehicle. On obtaining the license number of the car, Downs also endeavored to get a look at the occupants of the car. Downs observed two males in the car-a driver and a passenger whom Downs saw remove something from his head on entering the car. At the trial Downs testified that he saw clearly the faces of both men as he passed the parked vehicle.

From the license number and a description of the vehicle which was supplied by Downs, the Nampa police were later able to locate and apprehend appellants while they were driving in the automobile described by Downs. The defendants were searched at the scene of the arrest. The search revealed no weapons, but the searching officers discovered that the appellants each had over $40 in small bills on their persons, approximately the amount alleged to have been taken in the robbery. Appellants were arrested on suspicion of robbery and were taken to the Nampa police station. The automobile which they were driving was impounded and approximately 12 hours later was searched by the officers, who had obtained a search warrant, and a .22 caliber revolver was found under the driver's seat.

After the arrest of appellants, approximately an hour after the robbery, Downs was summoned to the police station, apparently for the purpose of looking at suspect photographs. While at the station, Downs, his wife, and daughter were seated in a small room. Appellant Sadler, in handcuffs, was brought into the room by a police officer who asked Downs if he could identify Sadler. Downs replied that Sadler was the man he had seen as the passenger in the car parked behind the Seven-Eleven Store. The record is clear that Sadler was being physically restrained by the officer at the time Downs identified him. Downs was then asked to step outside the door in order to identify Sever as the driver of the car. Sever, also in handcuffs, was standing at the opposite end of the hall from Downs, flanked by two police officers. Downs likewise identified Sever as the driver of the automobile. Witness Downs stated that he talked to no one, but nor had he been briefed by any police officers prior to making the identifications. Downs did, however, state that while in the station he had overhead an officer say that 'a car and a suspect car had been apprehended.' Downs also noted that his wife, who had accompanied him to the police station, had mentioned that Sadler was 'of the same build as the man that we watched go in' the Seven-Eleven Store.

Prior to the trial, both appellants filed motions to suppress evidence of the police station identification. The trial court, after an evidentiary hearing, denied the motions. In the course of the trial, Mr. Downs made an in-court identification of both appellants as the men he observed in a parked vehicle behind the Seven-Eleven Store the night of the robbery. This identification was likewise objected to by appellants. No reference to the police station identification was made by Downs. However, during the cross examination and subsequent re-direct examination of police officer Hupe, the police station identification was exposed and evidence of its outcome was also admitted.

In their appeal to this court, appellants level a two-pronged attack at the district court ruling concerning the legality of the police station identification. Appellants contend first that the evidence of the identification must be ruled inadmissible under the Wade-Gilbert per se exclusionary rule since the confrontation at which Downs identified the appellants occurred in the absence of appellants' counsel, an effective denial of their 6th amendment rights. ¹ Second, and notwithstanding the right to counsel claim, appellants urge that the circumstances of the police station identification were unusually suggestive and unfair so as to amount to a denial of due process.

Fundamental to appellants' right to counsel claim are the landmark United States Supreme Court cases of 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, is L.Ed.2d 1178 (1967). Wade, a federal criminal case, and Gilbert, a state prosecution stand-strictly speaking-for the proposition that a criminally accused is entitled to have counsel present at post-indictment lineups. Failure to allow the presence of counsel subjects any evidence of the import of such identification to a per se exclusionary rule. ² Although the actual holdings in Wade and Gilbert concerned only post-in-dictment lineups, the Court's opinions made it clear that all pretrial confrontations between the accused and the witnesses against him were subject to close scrutiny. United States v. Wade, supra, 388 U.S. at 227, 87 S.Ct. at 1932.

The recent United States Supreme Court case of Kirby v. Illinois,406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), has settled the law in this area. In Kirby, the defendant was arrested for robbery and transported to the police station. An eye witness to the offense was called to the station where he identified the defendant as the perpetrator of the crime. No counsel was present at the identification procedure. Evidence of the police station identification as well as an in-court identification by the same witness was introduced at trial. Defendant was ultimately convicted and appealed to the Illinois appellate court, which affirmed the conviction. The United States Supreme Court granted certiorari on the limited question of whether the Wade-Gilbert per se exclusionary rule is applicable to pre-indictment confrontations. In a split decision, the Supreme Court declined to extend the Wade Gilbert right to counsel ruling to pre-indictment confrontations. The court noted that historically the right to counsel was mandatory 'only at or after the time that adversary judicial proceedings (had) been initiated against them'-'whether by way of formal charge, preliminary hearing, indictment, information or arraingment.' In the words of the court:

'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 of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U.S. 45, 66-71, 53 S. Ct. 55, 63, 77 L.Ed. 158; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (Douglas, J., concurring).' 92 S.Ct. at 1882.

As to confrontations prior to the initiation of the judicial criminal proceedings, such as we are faced with in the case at bar, the right to counsel guarantees of the 6th amendment are inapplicable. See State v....