concurring specially.
I concur in that portion of the majority opinion which remands this case to the trial court for a hearing to determine the presence of defendant’s counsel at the pretrial, post-indictment lineup. I also concur with that portion which states if “the trial court determines that the appellant’s attorney was not in fact present at and able to observe the lineup, then the court may hear evidence on whether the witness’ in-court identification testimony had an independent origin from her lineup identification,” but I do not find this to be a complete statement of the entire rule.
The United States Supreme Court, in United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149), and Gilbert v. California, 388 U. S. 263 (87 SC 1951, 18 LE2d 1178), held that pretrial corporeal identification procedures conducted after a suspect had been indicted was a critical stage in a criminal prosecution which triggered the accused’s Sixth Amendment “right to counsel.” This “right to counsel” is not limited to “presence of counsel” as an observer. It is my contention that a defendant is entitled to be “represented” by counsel at the post-indictment corporeal lineup (but not at a post-indictment photo display; United States v. Ash, 413 U. S. 300 (93 SC 2568, 37 LE2d 619)). United States v. Brown, 461 F2d 134 (CA DC 1972); United States v. King, 461 F2d 152, 156-157 (CA DC 1972) (Bazelon concurring); United States v. Boston, 508 F2d 1171, *6761176-1177 (CA 2 1974); see also United States v. Ravich, 421 F2d 1196, 1202-1203 (CA 2 1970), cert. den. 400 U. S. 834.
The United States Supreme Court has held “[i]f an accused’s counsel is present at the pretrial identification, he can serve both his client’s and the prosecution’s interests by objecting to suggestive features of a procedure before they influence a witness’ identification . . . [Moore v. Illinois, 434 U. S. 220, 225 (98 SC 458, 54 LE2d 424)] [C]ounsel could have requested that the hearing be postponed until a lineup could be arranged at which the victim would view [the defendant] in a less suggestive setting... Short of that, counsel could have asked that the victim be excused from the courtroom while the charges were read and the evidence against [the defendant] was recited, and that [the defendant] be seated with other people in the audience when the victim attempted an identification . . . Counsel might have sought to cross-examine the victim to test her identification before it hardened .. . [W]e cannot assume that such requests would have been in vain. Such requests ordinarily are addressed to the sound discretion of the court...” 434 U. S. at 230, fn. 5; see also United States v. Ravich, 421 F2d 1196, 1202-1203, supra, cited with approval by the Supreme Court in Moore; supra, at 230.1 do not interpret the Supreme Court’s view of the defense counsel’s role at a post-indictment corporeal lineup as being an observer, but as a representative who is entitled to make reasonable suggestions to the law enforcement official in charge of the corporeal lineup procedure. Thus, I would remand to the trial court for determination of presence and extent of participation of the defense counsel and result of any of his requests.
Further, inasmuch as one of the state’s witnesses testified she had made a positive identification of the defendant at the post-indictment lineup — if defendant’s counsel was not present, such testimony was inadmissible. Gilbert v. California, 388 U. S. 263, 272, supra. Therefore, the rule enunciated in Gilbert, supra, and Moore, supra, is applicable on remand, e.g., the court should determine whether such inadmissible evidence was harmless constitutional error beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (87 SC 824, 705). Gilbert v. California, 388 U. S. 263, 272, supra; Moore v. Illinois, 434 U. S. 220, 231, supra.
Accordingly, I would remand (1) for determination of presence or absence of defendant’s counsel during the post-indictment lineup, (2) if he was present — the extent of his participation, and compliance with any of his reasonable requests, or (3) if defendant’s counsel was absent, whether such inadmissible evidence of the witness’ post-indictment identification was harmless constitutional error.