State v. Wisniewski

• Decision Date: 12 November 1969
• Docket Number: No. 53117,53117
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Raymond Gerald WISNIEWSKI, Appellant.

Page 882

171 N.W.2d 882

STATE of Iowa, Appellee, v. Raymond Gerald WISNIEWSKI, Appellant.

No. 53117.

Supreme Court of Iowa.

Nov. 12, 1969.

Paul H. Kinion, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and William G. Faches, Linn County Atty., for appellee.

LeGRAND, Justice.

A jury found defendant guilty of robbery with aggravation. He was sentenced to serve a term of not more than 25 years in the penitentiary under section 711.2, Code of Iowa, 1966, a judgment from which he appeals.

Defendant says three errors entitle him to a new trial. They are: (1) permitting testimony which defendant claims was based upon an out-of-court identification procedure violating his right to assistance of counsel under Amendments 6 and 14, Constitution of the United States; (2) instructing the jury that defendant had the burden of proving his alibi; and (3) refusing to permit the testimony of an alibi witness because notice of her testimony had not been given as required by section 777.18, Code of Iowa, 1966. We reverse and remand for a new trial under (2) above.

Before considering these assignments, we recite the facts upon which the conviction was based. On February 22, 1968, defendant and a confederate entered a Cedar Rapids grocery store and robbed Louis Berry of approximately $350.00. Defendant's confederate carried a rifle, and during the course of the robbery one or both threatened to shoot Mr. Berry. Although this threat, fortunately, was not carried out, Berry was nevertheless beaten severely about the head and face.

While the robbery was in progress, two customers, William Elias and Vicki Turner, entered the store and made purchases. Both saw Berry lying on the floor behind the meat counter, and at least one saw defendant's confederate crouching behind the counter holding a rifle. Defendant waited on these customers, took their money and gave one of them change. Understandably alarmed, Vicki Turner quickly left the store and immediately asked a friend to call the police. She then returned in time to see defendant and his companion, still carrying the rifle, leave the store.

Two other girls, Donna Hammen and Susan Mason, observed defendant as he was leaving the scene.

All of these persons--Mr. Berry and the four who entered the store during the robbery--testified at the trial and identification of defendant as one of the men who committed the robbery depends on their testimony.

Mr. Berry testified defendant had been in his store during the afternoon of the day of the robbery. He had made a few purchases for which he was unable to pay, stating he would come back later with the money. When he came back later that evening, Mr. Berry first assumed he was there for that purpose. Berry's identification of defendant was positive.

Mr. Elias and Miss Turner both testified to defendant's participation in the robbery from their on-the-spot observations.

Miss Hammen and Miss Mason, student nurses, entered the store together as defendant was leaving. They testified to seeing the man with the gun, but neither gave convincing identification testimony concerning defendant. Miss Mason, in fact, could not identify him at all. Defendant did not object to her testimony, and we therefore disregard her in our discussion of the case.

I. Defendant's first assignment of error concerns the identification testimony of these witnesses, which is challenged on the basis of an identification procedure carried out by the Cedar Rapids police department. Defendant was picked up and taken to the police station several hours after the robbery. Sometime between 10:00 and 11:00 P.M. that night--approximately three hours after the crime--Berry, Elias Vicki Turner, Donna Hammen, and Susan Mason were taken to the police station separately and asked to observe defendant for the purpose of identifying him.

Defendant was sitting in a room talking with a police officer. No one else was in the room. The witnesses viewed him through a mirror or window. They were uncertain as to whether defendant could see them. The record shows the police used no persuasion upon the witnesses to secure an identification. No suggestion was made to them, and no opinion as to defendant's involvement was expressed by the officers. The witnesses all testified they were simply told to look at the man and say if he was the person they had seen in the grocery store earlier.

Defendant asserts this amounted to an illegal one-man lineup upon which the later in-court identification depended. He claims he was without counsel when the police station identification took place; that this was a violation of his constitutional rights under Amendments 6 and 14 to the Constitution of the United States; and that there was no sufficient independent source of information shown to justify the identification evidence at trial.

Defendant relies on three United States Supreme Court cases decided on June 12, 1967. They are 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; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

Both Wade and Gilbert hold an accused is entitled to counsel under Amendment 6, Constitution of the United States when an identification procedure is conducted at a critical prosecutive stage. As pointed out in Gilbert (87 S.Ct. 1951, page 1185 of 18 L.Ed.2d), this constitutional safeguard is made applicable to the states by Amendment 14.

Those cases held the rule to be applicable only to identifications made subsequent to June 12, 1967, and Stovall, therefore, was not entitled to its benefits. The Stovall case, however, announced the additional rule that out-of-court identifications may violate the due process clause of Amendment 5 '(if) the confrontation (is) unnecessarily suggestive and conducive to irreparable mistaken identification.' Some of the factors to be considered in determining the ultimate fairness or lack of fairness in the procedure are 'prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.'

It should be noted that an illegal out-of-court identification procedure does not necessarily bar identification testimony by that witness at trial. It merely precludes the use of the 'tainted' identification and requires clear and convincing proof that any identification made at trial had an independent origin and does not depend for its validity upon the illegal lineup procedure. United States v. Wade, supra, 87 S.Ct. 1926, at page 1166 of 18 L.Ed.2d; Gilbert v. California, supra, 87 S.Ct. 1951, at page 1186 of 18 L.Ed.2d.

It should be mentioned, too, that defendant's objection in the present case relates only to failure to have counsel at what is claimed to be a critical stage of the case. No claim is asserted, nor could it be under the Wade decision, defendant was compelled to give evidence against himself in violation of Amendment 5 to the Constitution of the United States. Wade clearly holds identification procedures do not offend against that constitutional safeguard. United States v. Wade, supra, 87 S.Ct. 1926, 18 L.Ed.2d at page 1154.

Defendant argues there was an illegal out-of-court identification procedure: that it so tainted the in-court identification that the witnesses should not have been permitted to testify under the rule adopted in Wade and Gilbert; and that the identification procedure followed, regardless of Wade and Gilbert, was so unnecessarily suggestive and conducive to irreparable mistaken identity that it violated the due process clause of Amendment 5, contrary to the doctrine promulgated by the Stovall case.

We need not decide now the propriety of the practice followed by the police department here because we find the in-court identification had an independent origin and was not based on the identification procedure objected to here.

This is particularly true of witnesses, Berry, Elias, and Miss Turner, whose observation of defendant at the time of the crime was under circumstances lending great weight to their in-court identification. Defendant virtually concedes this in his brief and argument, levelling most of his complaint against the testimony of Miss Hammen and Miss Mason.

As already noted Miss Mason made no identification and her testimony was not objected to. Miss Hammen's identification was at best weak. However, it was based solely on her observations at the scene of the robbery and was admissible for whatever credence the jury elected to give it.

In connection with the testimony of all these witnesses we point out their in-court identifications were based entirely on their observations at the scene of the robbery. The police station procedure was brought out only on cross-examination.

The trial court conducted extensive voir dire examinations on the disputed identifications, finding--properly, we think--the circumstances under which the witnesses observed defendant at the time of the robbery furnished adequate independent source to meet the conditions set out in Wade and Gilbert.

In support of our conclusion see the following cases, all of which were decided subsequent to Wade and Gilbert. Hanks v. United States, 10 Cir., 388 F.2d 171, 174; Fitts v. United States, 5 Cir., 406 F.2d 518; State v. Carrothers, 79 N.M. 347, 443 P.2d 517, 519; Tyler v. Maryland, 5 Md.App. 158, 245 A. 592, 595, 597; Shepard v. State, Fla.App., 213 So.2d 11, 12; and State v. Cannito, 183 Neb. 575, 162 N.W.2d 260, 261.

However, we must still determine whether the police procedure violated the Stovall rule. In other words, was d...