State v. Smith

• Decision Date: 15 December 1970
• Docket Number: No. 54092,54092
• Parties: STATE of Iowa, Appellee, v. William Edward SMITH, Appellant.
• Court: Iowa Supreme Court

Page 409

182 N.W.2d 409

STATE of Iowa, Appellee, v. William Edward SMITH, Appellant.

No. 54092.

Supreme Court of Iowa.

Dec. 15, 1970.

Frank A. Comito, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and Ray A. Fenton, County Atty., Des Moines, for appellee.

MOORE, Chief Justice.

Defendant's appeal of his robbery conviction asserts the trial court erred in failing to declare a mistrial after stricking evidence of victim's viewing of him in the absence of counsel shortly after the robbery. The primary question is whether defendant's constitutional right to counsel as guaranteed by the Sixth Amendment to the United States Constitution was under the facts here violated. We hold it was not.

We briefly summarize the facts as diclosed by the record. About 2:30 a.m. February 22, 1968 a blue and white Rambler was driven into and parked near the front door of the Clark gas station near McKinley and Fleur Drive in Des Moines. The sole occupant, a man described by the attendant, Vernon Colgrove, as approximately 5 10 with dark hair and wearing a dark jacket or suit got out and after engaging Colgrove in conversation for a short time then went to the rest room. Thereafter the man came into the station, stated he had a gun in his pocket, said 'this is a hold up', and demanded money. Under fear of being assaulted Colgrove gave the robber a ten, a five and what he estimated was ten one dollar bills. Colgrove was ordered to face the wall where he remained a few minutes and then turned around only to find the robber was still in the station. After Colgrove was again forced to face the wall he heard the Rambler leaving the station and immediately called the police, reported the robbery, described the vehicle and reported it was driven away on Fleur or McKinley Avenue.

About 2:40 a.m. a police officer after receiving a radio report of the robbery observed a blue and white Rambler traveling east on McKinley and traversing the intersection at Southwest Ninth Street at a high rate of speed. He gave chase for serveral blocks. Then the Rambler, occupied only by the driver, stopped in a residential driveway. The driver and owner of the car was defendant. Other officers were called, including Detective Gillispie who gave defendant the Miranda warnings. Defendant was very belligerent, denied any knowledge of the robbery and claimed his wife lived where he had stopped. She could not be located there. The officers found a ten, a five and ten one dollar bills on the front seat of defendant's Rambler automobile.

At the instance of the police Colgrove went to the Des Moines police station an hour or an hour and a half after the robbery. His testimony as abstracted in the record includes:

'When I got in the booking room Mr. Gillispie told me they would bring somebody out and told me to go sit to the left. When they called me to come to the police station they told me they wanted me to come down because they had somebody in custody they wanted to see if I could identify. So while going down to the station I had in mind or the idea if I could identify this person. When the Deendant was brought in he was accompanied by a uniform policeman and brought to the booking counter. While the Defendant was at the counter Detective Gillispie constinued to ask him some questions. When they brought the Defendant in the door I knew he was the one so I shook my head, and then I stayed there for about five minutes or so before I left. When they brought the Defendant he was wearing a dark sports coat or suit jacket and a white shirt.' Defendant was booked under charges of traffic violation and 'investigation to detectives for robbery'. He was formally charged with robbery later that morning. Colgrove further testified he observed defendant about ten minutes at the scene of the robbery and was able to identify him based thereon independent of his observations at the police station.

Prior to trial defendant filed a motion to suppress all identification testimony of Colgrove and Detective Gillispie as being tainted by the 'line-up' testimony of the events at the police station in absence of an attorney for defendant. After hearing the testimony of Colgrove and Gillispie the court overruled defendant's motion to suppress.

On trial before the jury testimony of Colgrove and Gillispie was submitted by the State without objection by defense counsel. Thereafter the trial judge on his own motion, apparently concluding his ruling on the motion to suppress was in part erroneous, struck the testimony of Colgrove and Gillispie regarding the events at the police station. The jury was so advised and told the testimony was being stricken because no attorney for defendant had been present.

Defendant then moved for a mistrial on the ground the stricken testimony was so prejudicial he could not receive a fair trial. The trial court denied the motion. Defendant's assigned errors here are that Colgrove's identification at the police station was tainted and so prejudicial that denial of his motion for a mistrial was an abuse of the trial court's discretion.

Defendant's contention his viewing shortly after the robbery by the victim Colgrove in the absence of counsel violated his Sixth Amendment rights is based on the holdings in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

In both Wade and Gilbert the defendants were confronted in post-indictment formal lineups; both had counsel at the time they were placed in the lineup for identification purposes, but the lineup was conducted without notice to and in the absence of the accused's appointed counsel. In Wade the lineup was held some eight months after the crime occurred. In Gilbert the lineup occurred over two and a half months after the crime was perpetrated and one month after the arrest. In each the Supreme Court held defendant's constitutional rights had been violated.

Here we are confronted with a far different factual situation than found in Wade and Gilbert. This is a viewing and identification by the victim of the only suspect within an hour and a half after the robbery was committed. No United States Supreme Court decision on a similar fact situation has come to our attention. Federal circuit and several state appellate courts have, however, considered analogous situations. Their holdings are not entirely in agreement. See 14 Vill.L.Rev. 535. The great majority however have drawn a distinction between viewing and identification by the victim shortly after commission of the offense and the formal lineup identification made at a later time as in Wade and Gilbert.

In Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (1968), Chief Justice Burger, then a circuit judge, wrote an opinion where two assaulted women viewed and identified an arrested suspect within approximately thirty minutes after the offense was committed. He had no counsel and none was present. In affirming conviction the court at page 1106 says:

'There is no prohibition against a viewing of a suspect alone in what is called a 'one-man showup' when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule, allowing spontaneous utterances a standing which they would not be given if uttered at a later point in time. An early identification is not error * * *. To the...