Wilson v. Com., s. 83-SC-989-M

• Decision Date: 23 May 1985
• Docket Number: 83-SC-990-M,Nos. 83-SC-989-M,83-SC-991-MR,s. 83-SC-989-M
• Citation: 695 S.W.2d 854
• Parties: Willie WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and James Edward WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and David MUNCIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 854

695 S.W.2d 854

Willie WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and James Edward WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and David MUNCIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 83-SC-989-MR, 83-SC-990-MR, 83-SC-991-MR

Supreme Court of Kentucky.

May 23, 1985.

Julie Namkin, Asst. Public Advocate, Frankfort, for appellants.

David L. Armstrong, Atty. Gen., John S. Gillig, Asst. Atty. Gen., Frankfort, for appellee.

GANT, Justice.

AFFIRMING

Willie Wilson, James Wilson, and David Muncie were each convicted by a jury in the Warren Circuit Court of conspiracy to commit first degree robbery and two counts of accomplice to second degree assault. Each man received sentences of seven years, ten years, and ten years, for the respective offenses. After a finding that they were persistent felons, James Wilson was sentenced to thirty-three years imprisonment and David Muncie was sentenced to thirty-six years imprisonment. Because certain issues raised are common to more than one of the appellants, these appeals were consolidated for review.

FACTUAL BACKGROUND

On March 15, 1983, approximately thirty people were in the Fun Center in Bowling Green, Kentucky. There was a crap game at one of the pool tables and, so, there was a considerable amount of money on the table and in the players' hands. During the course of the crap game, three men and two women, who were unknown to the patrons, entered the Fun Center. After looking around for a few minutes, they left. About fifteen minutes later, the three men re-entered the Fun Center, armed with handguns. One of the men told everyone to hit the floor and one or more of the men opened fire, causing the patrons to dive for cover. Two people sustained gunshot wounds.

Bowling Green police officers arrived shortly thereafter and obtained a description of the suspects' vehicle. Officers spotted the car on the interstate and a high speed chase ensued. When the suspects' car became disabled, they pulled to the side of the road and four of them fled into a wooded area adjacent to the highway. Officers apprehended Yolanda Price, who had remained in the vehicle. During a search of the area, officers also arrested James Wilson, who was found hiding in some bushes. A pistol was located in the grass a short distance from James' hiding place.

Ms. Price provided a statement in which she implicated James Wilson, David Muncie, and a third man she later identified as Willie Wilson. Five of the Fun Center patrons identified James Wilson in a line-up, which included James and six other individuals.

At trial, James and David admitted that they had been at the Fun Center, but claimed that they were participants in the crap game. They further claimed that, because they had won a good deal of money, the other players tried to stop them from leaving. In an attempt to protect themselves, they had been forced to use their weapons. Both denied that Willie was present and claimed that the third man was Ms. Price's boyfriend. Willie Wilson claimed that he was in Louisville on the night in question and presented alibi witnesses.

Other facts will be discussed as they relate to particular issues.

IDENTIFICATION PROCEDURES

Willie Wilson claims that any in-court identification concerning him should have been suppressed because he was denied his right to counsel at a pre-trial confrontation with witnesses and because this confrontation was so unduly suggestive that he was denied his right to due process. When Willie was brought into court on June 14, 1983, for arraignment, he was handcuffed Because Willie had been indicted over two months earlier, he was entitled to counsel at any pre-trial confrontation. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). However, the record clearly refutes his claim concerning right to counsel, since the arraignment order recites that Willie's counsel was present at that time. Therefore, we find no merit in this argument.

to James Wilson. At the time, several witnesses were present in the courtroom in order to testify at a suppression hearing concerning James Wilson. One or more of these witnesses had previously identified James as one of the robbers.

We must next examine Willie's argument that the confrontation was unduly suggestive. We would first note that the fact that a defendant is handcuffed does not, by itself, require suppression of a later in-court identification. Brown v. Commonwealth, Ky.App., 564 S.W.2d 24 (1978). In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court concluded that the primary evil to be avoided in such pre-trial confrontations is the "very substantial likelihood of irreparable misidentification." We agree with the Ninth Circuit Court of Appeals that Biggers established a two-prong due process test in this area. United States v. Freie, 545 F.2d 1217 (9th Cir.1976). When examining a pre-trial confrontation, this court must first determine whether the confrontation procedures employed by the police were "suggestive." If we conclude that they were suggestive, we must then assess the possibility that the witness would make an irreparable misidentification, based upon the totality to the circumstances and in light of the five factors enumerated in Biggers, supra.

We conclude that Willie Wilson's confrontation with these witnesses was not violative of his right to due process under Neil v. Biggers, supra. Implicit in the first prong of the Biggers test is a finding that the government had some hand in arranging the confrontation. During the course of a prosecution, there will invariably be chance confrontations between an accused and witnesses for the Commonwealth. We fail to perceive a real danger to the defendant in such situations where the Commonwealth has not arranged the confrontation and there is no attempt by its agents to indicate to the witness(es) that "that's the man." In our view, such a confrontation is less suggestive than an in-court identification, where a witness need merely look to the defense table. We therefore hold that, in order to establish that a pre-trial confrontation was unduly suggestive, the defendant must first show that the government's agents arranged the confrontation or took some action during the confrontation which singled out the defendant. Because Willie Wilson has failed to show either of these actions on the Commonwealth's part, we find that the trial court properly refused to suppress the in-court identification.

James Wilson contends that his in-court identification should have been suppressed because the police station line-up was unduly suggestive. Two of the patrons who identified James during the line-up were Moses Loving and Chester Hibbitt. James established at trial that Loving knew four or five of the six other men in the line-up and that Hibbit knew all of the men in the line-up except James. It should also be noted that the trial court, in the order denying the motion to suppress, noted that the procedure used had "tainted" the line-up, but found an independent origin for the identifications.

In examining James' due process claim, we must again conduct the above-mentioned two-prong test. Because it is clear that the police conducted the line-up, James has established that the government's agents arranged this confrontation. We also believe that it is clear from the evidence that the procedure was unduly suggestive as regards the identification by these two witnesses. Therefore, we must examine the second prong of the Biggers test--the possibility that these two witnesses would make an "irreparable misidentification".

After examining the testimony of these two men in view of the five factors set out in Biggers and under the totality of the circumstances, we conclude that their in-court identification of James Wilson constituted a violation of his due process rights. We must now determine whether this violation was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

James admitted that he was in the Fun Center. He was found hiding in the bushes after a high speed chase from the scene of the robbery, with a gun lying nearby. There is no indication that the line-up identification by the other three patrons was tainted. Three additional patrons, who did not view the line-up, made in-court identifications of James as one of the robbers. Finally, Ms. Price and the other female companion identified James as one of the robbers. Based upon this overwhelming proof of guilt, we find that the trial court's error in refusing to suppress the in-court identifications by Lovett and Hibbitt was harmless beyond a reasonable doubt.

Finally, Willie Wilson and David Muncie argue that they were deprived of their right to due process because the trial court refused their requests for pre-trial line-ups. Both concede that there is no constitutional right to such a procedure, but cite the United States Supreme Court's decision in Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), for the proposition that such a line-up may insure the reliability of identification evidence. We note that, in Moore, the Supreme Court acknowledged that such a procedure is normally within the sound discretion of the trial court. We agree and hold that it is within the sound discretion of the trial court to determine whether an independent pre-trial line-up is necessary. We further find that the...