State v. Sanchell

• Decision Date: 21 March 1974
• Docket Number: No. 39042,39042
• Citation: 191 Neb. 505,216 N.W.2d 504
• Parties: STATE of Nebraska, Appellee, v. Joseph SANCHELL, Appellant.
• Court: Nebraska Supreme Court

Page 504

216 N.W.2d 504

191 Neb. 505

STATE of Nebraska, Appellee, v. Joseph SANCHELL, Appellant.

No. 39042.

Supreme Court of Nebraska.

March 21, 1974.

Syllabus by the Court

1. The constitutional right of an accused to the presence and assistance of legal counsel does not apply as a matter of absolute right to a lineup or showup conducted by the police previous to the initiation of adversary judicial criminal proceedings.

2. The provisions of section 29--1606, R.R.S.1943, are construed to include the requirement of approval by the trial court before an information may be dismissed. An agreement by a prosecuting attorney to dismiss an information against a defendant conditioned upon his 'passing' a polygraph examination may not be enforced in the absence of approval by the court either of the agreement or of a dismissal requested by the prosecutor pursuant thereto.

3. The conduct by the police, at whatever time, of identification procedures must not be so unnecessarily suggestive and conducive to a substantial likelihood of irreparable mistaken identification as to be a denial of due process of law.

4. Whether an identification procedure is violative of due process will be determined upon a consideration of the totality of the circumstances surrounding it.

5. Even though an identification procedure may have been suggestive, the incourt identification may be allowed to go to the jury if under the totality of the circumstances it is determined to be reliable because it has an origin independent of the taint.

6. If identification procedures are such as to violate due process, the denial of a proper and timely motion to suppress and the admission of the in-court identification constitutes reversible error unless this court can say beyond a reasonable doubt that the error was harmless.

Paul E. Watts, J. Joseph McQuillan, Bill Campbell, Gerald E. Moran, George R. Sornberger, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

Defendant was charged on one count of forcible rape and three counts of robbery, and was found guilty by a jury. The offenses occurred during the early morning hours of January 22, 1972, in a women's residence hall on the campus of the University of Nebraska. The victims were three female students who resided in the hall. The convictions depended solely upon identification of the defendant by the victims. There was no circumstantial or other evidence to connect the defendant with the offenses.

Previous to trial two issues of significance on this appeal were raised. The defendant moved to dismiss the information because the State, acting through the prosecuting attorney, had violated an agreement with the defendant to dismiss the charges if the defendant submitted to and 'passed' a polygraphic examination. The court denied the motion. The defendant also moved to suppress the identification testimony of the witnesses because it was alleged they were the product of constitutionally tainted pretrial identifications which were so unnecessarily and impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification in violation of the mandates of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; and thus defendant was denied due process of law at his trial. A suppression hearing was held on the motion and the trial court denied the motion without making any fact findings.

On this appeal the following errors are assigned: (1) The identifications should have been suppressed because the defendant was denied assistance of counsel at a one man showup on February 8, 1972. (2) One man showups on February 8, and March 1 and 2, 1972, violated principles of due process of law. (3) The identifications made at trial by the witnesses had no origin independent of the tainted identifications and therefore should have been suppressed. (4) The court should have granted the motion to dismiss because the State breached its agreement to dismiss if the defendant passed the polygraphic examination. (5) The erroneous admission by innuendo of the fact that the defendant had taken a polygraphic examination. (6) The evidence was insufficient to sustain the verdict.

Three of the assignments may be dealt with summarily.

The showup of February 8, 1972, occurred prior to the time any complaint in the matter had been filed against the defendant. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, makes it clear that the right to counsel does not attach until at or after the time adversary proceedings commence and that these begin with the formal charge. The court in that case specifically held the accused was not entitled to counsel at a police station showup which occurred before the defendant had been formally charged. The first assignment is therefore without merit.

The fifth assignment is likewise unmeritorious. No reasonable inference can be drawn from the trial record which could lead the jury to conclude the defendant had taken a polygraph test. The record shows the rape victim took such a test for the purpose of determining the truth of her claim that an offense had been committed. The same police officer who administered that test was called later as a rebuttal witness to testify concerning a conversation had with the defendant. There was nothing in this testimony to indicate by any reasonable intendment that the conversation was related to a polygraph test. In any event, there was no objection to the testimony and no motion for mistrial.

The merits of the sixth assignment depend upon whether the identification testimony must be stricken in its entirety. Since we conclude that some but not all this testimony is admissible, a jury question on the credibility and accuracy of the identification testimony was presented. The sixth assignment is not well taken.

After the preliminary hearing it was agreed, in letters dated May 4 and May 9, 1972, between the defendant's lawyer and the member of the county attorney's staff charged with prosecuting the case, that if the defendant passed a polygraph test the charges would be dismissed. The prosecutor stated: 'The only reservation that I would have is that in the event the Lie Detector Tests would be inconclusive, that the charges would not be dismissed.' In no event were the results to be used if the case proceedeed to trial. The tests were administered on June 21, 1972, by a member of the Lincoln police department who was a qualified polygraph examiner. Immediately following the examination the examiner told the defense counsel that his client had passed the tests. However, when the written report was made to the prosecutor, he stated: 'His reactions on a normal individual who had never been involved in this type of offense would indicate an innocent man, however, the reaction on the polygraph on this subject with his experience in thefts and other activity, indicate to me, that in my opinion that he is the guilty party.'

At the hearing on the motion to dismiss because of the violation of the agreement, the examiner testified: 'Q. Sir, in reaching the conclusion after you said on a normal person he would pass, you used extraneous matters not included in the test to draw the conclusion he wasn't telling the truth? A. Yes. . . . I told Mr. Watts here I honestly thought he had passed it; but I should not have said that. . . . Q. I will restate it. The test itself, excluding the extraneous matter, he passed? A. Yes.'

The extraneous matters considered by the examiner were conclusions based largely on hearsay information about 'his (the defendant's) experience in thefts and other activity.' It is our conclusion that the defendant passed the test within the meaning of the agreement. It certainly contemplated no considerations extraneous to the tests and involving the subjective judgment of the examiner on matters unrelated to the defendant's guilt or innocence of the crimes charged.

The question is: Is the agreement enforcible? The defendant cites and relies on Butler v. State, 228 So.2d 421, 36 A.L.R.3d 1274 (Fla.App., 1969), and State v. Davis, 188 So.2d 24 (Fla.App., 1966). In these cases the court held a refusal to honor the agreements deprived the defendants of due process of law and the convictions were reversed and the charges ordred dismissed. The agreements in those cases were somewhat different than in the present instance. In the Davis case the defendant was charged with first degree murder. It was agreed that if the defendant passed the test the charge would be dropped and that if he failed he would plead guilty to manslaughter. If the test were inconclusive, neither side was bound. In Butler the charge was rape. The agreement was that if the defendant passed the test the charges would be dismissed. If he did not the results could be admitted in evidence against him. In both cases the agreements had been approved by the trial court.

We do not want to do anything to discourage the use of the polygraph as it is a useful tool in police and prosecutorial work and no doubt results in many determinations not to prosecute. It is our judgment that such and agreement, as in the present instance, requires court approval to be binding. Section 29--1606, R.R.S.1943, provides that after preliminary examination the county attorney is required to file an information and if he determines he should not do so he must seek court permission and justify his action. If permission is denied he must then file the information and bring the matter to trial. The reasonable construction of this statute is that it requires approval of the...