Thompson v. State

• Decision Date: 21 February 1968
• Docket Number: No. A--14338,A--14338
• Citation: 438 P.2d 287
• Parties: Gary Michael THOMPSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 287

438 P.2d 287

Gary Michael THOMPSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14338.

Court of Criminal Appeals of Oklahoma.

Feb. 21, 1968.

Syllabus by the Court

1. In all cases triable in Oklahoma after June 12, 1967, the admissibility of the courtroom identification of a defendant by an eye-witness to a crime who has previously identified the accused at a lineup at which he was not represented by counsel or had not effectively waived the same, the court is bound by the rule enunciated in Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

2. In determining the admissibility of the courtroom identification of such witness, the trial court should conduct a hearing outside the presence of the jury and determine if, independent of the lineup identification, the witness can make positive identification of the accused, taking into consideration the following: the 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 is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.

3. The rule enunciated in Wade v. United States, supra, does not have retroactive application to state prosecutions conducted prior to June 12, 1967.

4. Record examined and held evidence amply supports verdict of jury and no error sufficient to justify reversal or modification.

An appeal from the Municipal Criminal Court of the City of Tulsa; Luther P. Lane, Judge.

Gary Michael Thompson was convicted of the crime of tampering with a vehicle and appeals. Affirmed.

Farmer, Woolsey, Flippo & Bailey, Tulsa, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Penn Lerblance, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Gary Michael Thompson, hereinafter referred to as defendant, was charged, tried and convicted for the offense of Tampering With a Vehicle. From a judgment and sentence fixing his punishment at a $75.00 fine and costs, a timely appeal has been perfected to this Court.

There are several assignments of error, but only one has sufficient merit to consider in this opinion and that is the defendant's contention that the trial court erred in admitting the testimony of Mr. Gee Tanner, an eye-witness at the scene of the offense, who subsequent to that date and prior to trial, identified the defendant in a police line-up, at which the defendant was not represented by counsel. It is the defendant's position that the courtroom identification of the defendant was based, either in whole or in part, upon the police line-up at which the defendant was not represented by counsel, in violation of his constitutional right guaranteed under the 6th amendment of the Constitution of the United States and made obligatory upon the states by virtue of the 14th amendment.

At the outset we observe that the testimony relating to the extrajudicial identification of the accused was not introduced by the State, but first injected into the case by counsel for the defense on cross-examination of witness Tanner. The defendant relies principally on Wade v. United States (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, wherein the Supreme Court, in a divided opinion, held in substance that a police lineup or parade is a critical stage of a criminal proceeding and that a suspect appearing in said lineup is entitled to be represented by counsel or must have Effectively waived such right to counsel. The majority of the Court stated that:

'We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 245--246, 78 S.Ct. 245, 253, 2 L.Ed.2d 234.'

The test to be applied in determining the admissibility of the courtroom identification of an accused, previously observed at a lineup, without benefit of counsel, is derived from Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and set forth in the following language:

'Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'

In applying...