State v. Yehling

• Decision Date: 07 June 1972
• Docket Number: No. 2265,2265
• Citation: State v. Yehling, 108 Ariz. 323, 498 P.2d 145 (Ariz. 1972)
• Parties: The STATE of Arizona, Appellee, v. Robert William YEHLING, Appellant.
• Court: Arizona Supreme Court

Page 145

498 P.2d 145

108 Ariz. 323

The STATE of Arizona, Appellee, v. Robert William YEHLING, Appellant.

No. 2265.

Supreme Court of Arizona, In Banc.

June 7, 1972.

Gary K. Nelson, Atty. Gen. by Paul J. Prato, Asst. Atty. Gen., Phoenix, for appellee.

Howard A. Kashman, Pima County Public Defender by Eleanor Daru Schorr, Deputy Public Defender, Tucson, for appellant.

HAYS, Chief Justice.

This is an appeal by the defendant from a conviction of armed robbery and a sentence of not less than ten nor more than twelve years.

Anthony Nicastro owned a barber shop. Business was slack and he fell asleep in his barber chair while watching TV. He was awakened by a drak-haired man with a gun. Shortly thereafter, a second man--a blonde, wearing a mask--entered the shop. The first man clubbed the barber on the head with the gun, and both men forced Nicastro to the back room of the shop where he sat on a bed while they tied him up. They took his wallet and money and left.

Nicastro gave the police a description of the first man, and a few days later Detective Penning showed the victim six blackand-white pictures which included one of the defendant. The detective did not suggest that the pictures included one of the suspect. They were numbered one to six. As the barber leafed through the pictures and came to number three, he immediately and unhesitatingly made a positive identification of defendant's picture. After that, the officer showed him two colored pictures of defendant which Nicastro also identified.

The display of the pictures to the victim was done without defendant's knowledge and without telling defendant that he had a right to have an attorney present during the identification procedure, and no such attorney was in fact present.

The leading case on photographic identification is Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, in which the United States Supreme Court held:

'Simmons, however, does not contend that he was entitled to counsel at the time the pictures were shown to the witnesses. Rather, he asserts simply that . . . the identification procedure was so unduly prejudicial as to fatally taint his conviction. This is a claim which must be evaluated in the light of the totality of surrounding circumstances. . . . Notwithstanding cross-examination, none of the witnesses displayed any doubt about their respective identifications of Simmons. Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, Even though the identification procedure employed may have in some respects fallen short of the ideal.' 88 S.Ct. at 970, 972 (emphasis added).

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'. . . (W)e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at pre-trial identification by photograph Will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' 88 S.Ct. at 971 (emphasis added).

The right to counsel at a lineup has been firmly established by the United States Supreme Court in post-indictment lineups. 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. The main reason given in those decisions is that a lineup is a critical stage in the proceedings against the defendant.

In his brief, defendant argues that a photographic identification is merely another form of a lineup; that defendant's constitutional right to have an attorney present at a lineup applies to a photographic identification; and that in this case the latter was so suggestive as to taint the incourt identification. Defendant contends that a photo-identification is an even more critical stage than a physical lineup, because where photographs are used, defendant is not even present to observe any improprieties.

The principal case cited in defendant's brief in support of his theory is United States v. Zeiler, 427 F.2d 1305 (3rd Cir. 1970), in which the court reversed a conviction and held:

'Simmons v. United States, . . . did not deal with the issue of right to counsel at photographic identifications. The photographic identification in that case occurred prior to arrest and was part of the investigation process. However, when as in the instant case, the investigation has resulted in the arrest of an accused, the right to counsel attaches.' P. 1307.

Just a few weeks ago, however, the United States Court of Appeals for the Third Circuit, sitting en banc, overruled its previous decision in Zeiler, supra. In the...