State v. Sheardon, 71-696

• Decision Date: 05 July 1972
• Docket Number: No. 71-696,71-696
• Citation: 31 Ohio St.2d 20,285 N.E.2d 335
• Parties: , 60 O.O.2d 11 The STATE of Ohio, Appellant, v. SHEARDON, Appellee.
• Court: Ohio Supreme Court

Page 20

31 Ohio St.2d 20

285 N.E.2d 335, 60 O.O.2d 11

The STATE of Ohio, Appellant, v. SHEARDON, Appellee.

No. 71-696.

Supreme Court of Ohio.

July 5, 1972.

Syllabus by the Court

1. The rule of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, relative to the Sixth Amendment right to counsel at post-indictment confrontations, does not apply to confrontations conducted before the defendant has been indicted or otherwise formally charged relative to the crime in question. (Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 S.Ct. 411, followed.)

2. The due process clause of the Fifth and Fourteenth Amendments forbids any pre- or post-indictment lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. (Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 S.Ct. 411, followed.)

Donald Sheardon was convicted by a jury on two conts of armed robbery committed on October 22, 1968.

At approximately 9:15 p. m. on the evening in question, Ruth Ellen McCloy and John Lennon left Dearings Restaurant, 10932 Superior Avenue, Cleveland, Ohio, where they had just eaten dinner together. They each had two drinks, one before the meal and one after the meal.

As they left the restaurant and walked down the sidewalk past a well-lighted gasoline station and approached the rear of Lennon's automobile, two Negro males came out of a recessed doorway. The taller one went behind the victims and the shorter male approached from the front. Both males had guns, and the shorter one said: 'This is a stickup.' He repeated this phrase and cocked his gun, placing it against Lennon's stomach. The two men then forced the couple into a passageway between two buildings, where they put them up against a wall, frisked them, took their property, and then hit each of them over the back of their heads before fleeing.

Both victims had ample opportunity to observe the shorter defendant before he fled. Miss McCloy stated in detail:

'* * * The man that I had the opportunity to look at for, I would say, a good three or four minutes, I looked directly into his face, his clothing-he had on a short hat-those little, short brims-pulled down a little, and a short trench coat, and he had a blue-green pair of silk pants and a pair of-kind of dark- like a dirty penny-colored brown, pebble grained shoes. And he spoke rather distinctly. A soft-spoken voice . . .

'And as far as physical appearance, he was a Negro male-approximately about 21, 22-I can't guess the age-his height-and judging with my own-I would say he was about five eight and a slighter build-not skinny, but he wasn't a robust type person-maybe 155 or 160 pounds.

'* * *

'A. At the time we were approached we were, I would say, approximately ten feet from those-from the large, overhead gas station lights * * *. They are the floodlight type lights. The lighting was normal. It wasn't pitch-black or anything like that.'

Lennon had the opportunity to observe the shorter man for approximately two and a half minutes and described the shorter assailant's appearance in detail:

'The shorter of the two males was a medium skinned Negro approximately, in my opinion, five foot eight, 140 pounds, he had a brown mini-hat, he had a light colored trench coat-type thing-it was short-he had a pair of blue-green trousers very well pressed, no cuffs, he had a pair of medium brown loafer-type shoes-it was pebble grain leather.'

After the robbery the victims went back to Dearing's, where the police were notified. Lennon and Miss McCloy made a report to the police, and then Lennon took Miss McCloy to Doctor's Hospital, where she was given emergency treatment for a cut on the back of her head, and then released.

For the next two days, October 23 and 24, Lennon went down to the police station by himself to view projections of possible suspects.

On October 24, he identified one projection as that of the shorter man who robbed him. Lennon had seen some slides that were similar to the shorter assailant, but found one that 'was exact.' The projection selected was that of defendant Sheardon.

The next day, October 25, Lennon drove Miss McCloy to the police station where she, alone, viewed a number of slides of possible suspects for about one hour. The evening before, Lennon had told her he 'had seen a slide that was the man,' but the record does not indicate he disclosed the suspect's identity to her. After viewing the slides, Miss McCloy also selected the projection of the defendant Sheardon as the person who had robbed her.

In November of 1968, Lennon and Miss McCloy returned to the police station. Miss McCloy had stated that she wanted to see the suspect 'in reality.' Although Lennon stated that he was positive of the original identification, the tone of the projection he identified was shch that it looked very dark and the skin of the individual appeared darker in the picture than in his recollection of the assailant, and therefore he wanted to see somethin more current.

On that day, Lennon and Miss McCloy were taken into the county jail in the company of two detectives. The detectives rang for admittance, turned in their guns, explaining that this was the county jail. The couple were led into a barred area. The defendant, wearing county jail coveralls, was led up to the bars by a uniformed county deputy, whereupon the defendant was identified by the victims as the assailant.

At trial, the prosecution, in its case in chief, did not introduce testimony regarding either the projection or showup identification to establish that the defendant was one of the assailants. However, upon cross-examination by the defense, both victims testified as the the previous projection and showup identifications.

The prosecution offered no evidence as to why defendant was in jail on the day he was confronted (he was apparently in custody on another unrelated charge); as to whether he had been informed of his rights before the confrontation; or as to whether he had specifically waived his constitutional rights.

Defendant was convicted on both counts of the indictment and the Court of Appeals reversed the judgment of the Court of Common Pleas on authority of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

This cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Curtis L. Smith, for appellant.

Edward J. Maher, Cleveland, for appellee.

BROWN, Judge.

We reverse the Court of Appeals.

The issue before this court is whether the pre-indictment identification procedure employed by the police in the absence of counsel requires that the victims' in-court identification of defendant be excluded from the evidence.

In Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 S.Ct. 411, the Supreme Court refused to extend the per se exclusionary rule established in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (as to identification testimony based upon post-indictment lineups conducted without notice to, and in the absence of, counsel), to a police station showup that took place before the defendant had been indicted or otherwise formally charged relative to the crime in question.

As stated by Justice Stewart:

'* * * a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, 277 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

'This is...