No. 14232
IN THE SUPREME COURT O THE STATE O MONTANA
F F
1978
THE STATE OF MXl'I'ANA,
Plaintiff and Respondent,
-vs-
JUAN MANUEL GON.zALEs LARA,
Deferadant and Appellant.
Appeal f r m : District Court of the Thirteenth Judicial D i s t r i c t ,
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
Poppler and Barz, Billings, mntana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Wntana
Harold F. Hanser, County Attorney, Billings, Pbntana
Sulsnitted on briefs: Sept* 20, 1978
oe~idec$d~> ; , I
Filed: ' ,"
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Don's Food Center in Laurel, Montana, was robbed at
1:19 p.m. on August 20, 1977. Mrs. Nelson, wife of the
owner, was working alone in the store at the time of the
robbery. She testified she did not see the robber as he
entered the store because she was busy with a customer.
The robber after a few minutes moved behind a cigarette
rack where he was partially hidden from Mrs. Nelson's view.
During this time Mrs. Nelson was working at the cash
register with her head down.
The robber then walked over and stopped in front of
Mrs. Nelson approximately three feet away. As Mrs. Nelson looked
up, the robber pulled a Halloween-type mask down over his
face hiding his facial features completely. Mrs. Nelson
testified she saw his face clearly for about "a second".
At the trial, Mrs. Nelson described the robber as wearing
a blue shirt and pants with a stocky build and of apparent
Mexican descent. The robber brandished a pocketknife with
an open blade and indicated he wanted the money from the
cash register. Mrs. Nelson gave him the money, including
two registered one dollar bills in a special money clip
which, when the bills were removed, triggered an alarm at
the Laurel police station. The robber then exited the
store.
Mrs. Nelson ran into the living room of their house
adjoining the store. There she was able to see the robber
as he ran to and got into a turquoise colored automobile.
Mrs. Nelson did not see his face again, however, she did see
the driver of the car. Mrs. Nelson watched the car for several
blocks until it drove out of sight.
Testimony was given at trial indicating the automobile
Mrs. Nelson saw was stopped and its occupants apprehended
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within fifteen or twenty minutes of the robbery. The appellant
was one of the two occupants of the automobile. He was placed
under arrest and read his constitutional rights in English
and Spanish by an officer of the Montana Highway Patrol.
The appellant was handcuffed and was sitting in the Highway
patrolman's patrol car on the front passenger's side.
Appellant asked the patrolman what was going on and then
stated he was a hitchhiker whom the driver of the automobile
had picked up shortly before being stopped. Appellant stated
he had no knowledge of a robbery.
Mrs. Nelson then arrived at the scene of the arrest.
She was accompanied by an officer of the Laurel police
department to the highway patrol car in which appellant was
sitting along with the highway patrolman. Mrs. Nelson then
identified appellant as the individual who had committed the
robbery. The Highway Patrolman testified at trial that
the Laurel police officer asked Mrs. Nelson "[Ils this one
of the fellows that was involved," to which she replied,
"[Yles, that fellow over on the passenger side is the fellow
that was in the store." Mrs. Nelson then identified the
driver of the stopped auto as the driver of the getaway car.
She also identified the stopped automobile as the getaway
automobile.
Appellant was charged with robbery in the District
Court, Thirteenth Judicial District, Yellowstone County.
Appellant plead not guilty and received a jury trial. The
jury returned a verdict of guilty and the court entered
judgment accordingly.
Appellant presents two issues for this Court to consider:
(1) Did the one-on-one showup conducted immediately
after the arrest of appellant but prior to any initiation
of prosecutorial proceedings, and conducted without counsel
for appellant, violate appellant's Sixth and Fourteenth
Amendment right to counsel?
(2) Was the identification made by Mrs. Nelson so
impermissibly suggestive as to violate due process thus
making any in-court identification inadmissible?
Appellant first claims his constitutional rights were
violated when he was subjected to a lineup without the
presence of counsel. The United States Supreme Court has
held such is not the case.
In Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct.
1877, 32 L.Ed.2d 411, defendant was arrested for burglary
and taken to the police station. While there, the victim
identified the defendant and another individual seated at
a table as the men who had robbed him earlier. No attorney
was present at that time and no formal charges hsd as yet
been filed. 406 U.S. at 684, 685, 32 L.Ed.2d 415. The
Supreme Court affirmed the judgment of conviction stating
"it has been firmly established that a person's Sixth and
Fourteenth Amendment right to counsel attaches only at or
after the time that adversary judicial proceedings have been
initiated against him." 406 U.S. at 688, 32 L.Ed.2d at 417;
Moore v. Illinois (1977), U.S. , 98 S.Ct. 458, 464,
54 L.Ed.2d 424.
The Court noted it was the initiation of judicial criminal
proceedings "that marks the commencement of the 'criminal
prosecutions' to which alone the explicit guarantees of the
Sixth Amendment are applicable." 406 U.S. at 690, 32 L.E?..2d
at 418. It then declined to import into a routine police
investigation an absolute constitutional guaranty applicable
only after the onset of formal prosecutorial proceedings. Kirby,
supra. We agree, and in this appeal find the right to counsel
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had not yet attached at the time the appellant was subjected
to the identification procedures. See, State v. Miner (1976),
169 Mont. 260, 546 P.2d 252.
This is not to say however, that a suspect in appellant's
position is without constitutional safeguards. Kirby makes
clear that the "Due Process Clause of the Sixth and Fourteenth
Amendments forbids a lineup that is unnecessarily suggestive
and conducive to irreparable mistaken identification." Kirby,
406 U.S. at 691, 32 L.Ed.2d at 418. Thus, in case such as
this, where no right to counsel attached to the identification
procedure because it occurred before the commencement of
judicial criminal proceedings, "due process protects the
accused against the introduction of evidence of, or tainted
by, unreliable pretrial identifications obtained through
unnecessarily suggestive procedures." Moore, supra; Neil v.
Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401;
Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.
Ed.2d 1199.
This brings us to appellant's second issue. If we
determine the identification procedure to be so unnecessarily
suggestive as to violate due process, then the later in-
court identification based on this prior identification must
be deemed inadmissible as it was tainted by the primary
illegality. Moore, 98 S.Ct. at 463; Gilbert v. California
(1967), 388 U.S. 263, 272-273, 87 S.Ct. 1951, 18 L.Ed.2d
1178; Wong Sun v. United States (1963), 371 U.S. 471, 83
S.Ct. 407, 9 L.Ed.2d 441.
The test we must use in making this determination is two-
pronged. First, was the identification procedure impermissibly
suggestive; and, second, if so, did it under the totality of
the circumstances have such a tendency to give rise to a sub-
stantial likelihood of irreparable misidentification that to
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allow the witness to make an in-court identification would
violate due process. United States ex rel. John v. Casscles
(2d Cir. 19731, 489 F.2d 20, 23, 24; Neil v. Biggers, 409
U.S. at 198, 34 L.Ed.2d at 410, 411.
It cannot be denied the identification procedure used
in this appeal was suggestive, and was, in all likelihood,
unnecessarily so. The appellant was sitting handcuffed, in
a patrol car, next to a uniformed patrolman, at a place where
there were two other police vehicles, other officers, the
getaway vehicle and the driver of that vehicle. Such one-
on-one confrontations have been pointed out as suggestive
and widely condemned by the United States Supreme Court.
Stovall v. Denno, 388 U.S. at 302, 18 L.Ed.2d at 1206;
Foster v. California (1969), 394 U.S. 440, 443, 89 S.Ct.
1127, 22 L.Ed.2d 402, 407. Further there were no exigent
circumstances here to warrant the one-on-one showup as existed
in Stovall; the police in this case had the suspect in
custody and could very easily have conducted a much less
suggestive identification procedure. United States ex rel.
Kirby v. Sturges (7th Cir. 1975), 510 F.2d 397, 403-404;
State v. Pendergrass (1978), Mont . I P.2d
, 35 St.Rep. (No. 14209, decided Oct. 30, 1978).
Thus, we conclude the procedure used here was unnecessarily
suggestive. However, the fact the showup was unnecessarily
suggestive does not in and of itself result in a deprivation
of due process. Neil v. Biggers, supra; United States ex
rel. Kirby v. Sturges, 510 F.2d at 404. Under the second prong
of the test we employ, we must consider whether the totality
of the circumstances gives rise to the substantial likelihood
of misidentification and so be violation of due process. In
this regard "reliability is the linchpin in determining the
admissibility of identification testimony." Manson v.
Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d
140, 154.
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The Court in Manson mandates weighing the corruptive
effect of the suggestive procedure against factors to be
considered in evaluating the likelihood of misidentification.
Those factors were set out in Neil v. Biggers and include
.
". . the opportunity of the witness to
view the criminal at the time of the crime,
the witness' degree of attention, the
accuracy of the witness' prior description
of the criminal, the level of certainty
demonstrated by the witness at the con-
frontation, and the length of time
between the crime and the confrontation."
Neil v. Biggers, 409 U.S. at 199, 34 L.
Ed.2d at 411; Manson, supra.
Applying these factors to the facts of this appeal in our
consideration of the totality of the circumstances, we cannot
conclude the identification of appellant by Mrs. Nelson at
the scene of the arrest was so unreliable as to constitute
a violation of due process.
During the commission of the crime, Mrs. Nelson testified
the robber was approximately three feet away across the counter.
Mrs. Nelson and the robber confronted each other for several
minutes while the crime was being committed. The robbery
took place in the early afternoon in a lighted store. Although
Mrs. Nelson only observed the robber's face for a brief
moment before it was hidden by the mask, she had ample
opportunity to observe the robber's other physical character-
istics and dress at the time of the robbery and as he ran to the
getaway car. Mrs. Nelson's attention was not diverted in any
manner during the robbery. In fact, Mrs. Nelson attempted to
converse with the robber to ascertain exactly what he wanted.
When Mrs. Nelson was asked if the appellant sitting in the
patrol car was one of the individuals involved it was testified
she replied "Yes, that fellow over on the passenger side is
the fellow that was in the store." She exhibited no uncertainty
as to his identity. This identification took place only
ten to twenty minutes after the robbery had occurred. Thus
there was not the factor of a long period of time inter-
vening between the criminal act and the identification to
cloud Mrs. Nelson's impressions.
Admittedly Mrs. Nelson did not give a description of
the robber prior to identifying him at the scene of the
arrest. This, of course, was due in large part to the
rapidity with which the police apprehended the suspected
perpetrators. While it would have been better procedure and
would have insured a less questionable identification, we do
not find this omission makes the identification unreliable.
Mrs. Nelson also admittedly only briefly saw the robber's
face before he covered it with his mask. However, she did
observe his general build, hair and dress. One federal
circuit court has noted that the lack of a particular descrip-
tion of a suspect is not fatal to the identification when
the witness has positively made the identification. The
Second Circuit Court of Appeals has taken judicial notice
that there is a "recognition" capability which may be different
in degree and separate in kind from the "recall" capability.
Casscles, 489 F.2d at 24. "This is somewhat analogous to
the phenomenon . . . of not being able to recall a particular
word to describe something, but of having no difficulty in
recognizing and knowing the word upon seeing it." Casscles,
supra. Therefore the lack of any particular description of
the robber's face in the facts of this appeal is overcome by
the observation Mrs. Nelson made at the time of the crime
and the certainty with which she made the identification.
Considering the totality of the circumstances presented
by the facts of record in this case, we conclude that while
the identification procedure was unnecessarily suggestive,
it did not create a situation in which there was a substantial
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likelihood of misidentification and therefore was not
violative of due process.
Judgment affirmed.
We Concur:
c Justice
Chief Justice