Summary
In Breedlove, the Ohio Supreme Court found using photos with police identification numbers is improper because it presents the reasonable inference the accused has had a prior criminal involvement.
Summary of this case from State v. CarterOpinion
No. 70-248
Decided June 23, 1971.
Criminal procedure — Evidence — Identification of defendant — R.C. 2945.55 — Testimony of previous identification — Witness may testify to previous photographic identification, when — Photograph identification inadmissible, when — Use of police photograph with identifying numerals.
1. Under R.C. 2945.55, where identification of the defendant is in issue, a witness who on a previous occasion has selected, or observed another select, defendant's photograph from a number of photographs, may testify to such previous photographic identification if the photographs, or the photographs coupled with other testimony given on direct examination, do not provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement, and if the procedure of identification does not violate defendant's constitutional rights.
2. On direct examination, evidence of the identification of the defendant from a selection of photographs, using photographs from police files with police identification numerals thereon which provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement, may not be used for the purpose of proving defendant's identity.
APPEAL from the Court of Appeals for Summit County.
Appellant was tried twice for the November 25, 1968, armed robbery of the Rendevous Bar in Akron, Ohio. The first trial resulted in the jury not being able to reach a verdict. The second trial, ending May 28, 1969, resulted in appellant's conviction. The judgment of conviction was appealed to, and was affirmed by, the Court of Appeals. Pursuant to the allowance of a motion for leave to appeal and an appeal as of right, the cause is now before this court.
Both Ida Thompson, the barmaid who was the victim of the robbery, and Doris Jackson, a patron at the bar, testified on behalf of the state. On direct examination in court, Ida Thompson pointed to Breedlove, identifying him as the man who robbed her using a gun. On direct examination, Miss Jackson stated:
"Q. Would you tell us in your own words, please, what happened?
"A. After I had been there awhile and I was playing some records and Miss Thompson called me and I didn't answer at first. Then when I turned around she was standing near the cash register and this man was backing out the door with a gun.
"Q. When you say `this man,' to whom are you referring?
"A. Mr. Breedlove.
"Q. Did you ever see Mr. Breedlove before that day?
"A. Yes.
"Q. Did you know him personally?
"A. No.
"* * *
"Q. Is there any doubt in your mind today that it is Sylvester Breedlove whom you saw November 25, 1968, in the Rendevous Bar?
"* * *
"A. No, there is no doubt."
This witness did not indicate which person in court was Breedlove.
On direct examination, Miss Thompson testified that Sergeant Brown of the Akron Police Department came to the scene of the robbery 15 to 20 minutes after the crime occurred. Over objection, the court allowed this witness to relate that at that time she selected defendant's picture from a group of photographs shown to her by Brown. She stated further:
"Q. What were these photographs?
"A. They was photographs of guys that have committed crimes.
"Mrs. Bergman: Objection, your Honor, and I call for a mistrial."
The objection was overruled.
On direct examination, Doris Jackson testified, over objection, that Robert Lane of the Akron Police Department showed her five or six police photographs, from which she selected the photograph of Sylvester Breedlove as the person who robbed the bar.
Further describing the out-of-court identification of the appellant, Sergeant Brown stated that he had shown Miss Thompson a group of 25 photographs which had been issued by the identification bureau of the police department of "possible suspects in armed robberies and burglaries," from which she selected a photograph of Breedlove. Upon defense counsel's objection, the trial judge ordered the statement "possible suspects of armed robbery and burglaries" stricken from the record, and instructed the jury to disregard it.
Detective Lane, on direct examination, also described Doris Jackson's identification of appellant's photograph. He said the photographs were "acquired through perhaps warrants that went out for wanted individuals and we would stop in the I.D. unit with the warrant and check the file, and if we had a record on them we would get a picture and take it along to identify them."
The groups of photographs, about which these witnesses testified, were admitted in evidence, over objection. There are identifying numerals on the lower portion of each picture.
Appellant presented the testimony of two witnesses in support of his alibi defense that he was in another bar at the time of the robbery. Thomas Sistrunk, also testifying for appellant, stated that appellant was in his barber shop sometime on November 25, 1968.
Breedlove himself testified that on the afternoon of November 25, 1968, from approximately 1:00 to 2:00 p.m., he was in another bar, the "Room"; that immediately after leaving there he drove to Sistrunk's barber shop; and that he was not in the Rendevous at all that afternoon.
Prior to trial, appellant's counsel moved to suppress "the in-court identification of the defendant by the prosecuting witness and other witnesses on the grounds that such identification was previously suggested by members of the police department, City of Akron." After testimony was taken, and after the arguments of counsel, the motion was overruled.
Mr. Robert E. Mohler, prosecuting attorney, and Mr. Charles E. Lowrey, for appellee.
Miss Dorothy D. Bergmann, for appellant.
Appellant's alibi defense made the identity of the person who robbed the Rendevous Bar of crucial importance. Obviously in an effort to bolster the in-court identification by the state's witnesses of Breedlove as the perpetrator of the crime, the prosecutor presented, on direct examination, evidence of an out-of-court selection by the witnesses of appellant's photograph from a group of mug shots obtained from police files. Appellant contends that allowing this testimony and the pictures into evidence amounts to reversible error. We agree.
Under proper circumstances, an out-of-court identification is admissible when defendant's identity is an issue. R.C. 2945.55 provides:
"When identification of the defendant is an issue, a witness who has on previous occasion identified such person may testify to such previous identification. Such identification may be proved by other witnesses."
The first question for resolution is whether, under R.C. 2945.55, testimony concerning an out-of-court identification of the accused from a selection of photographs is admissible in evidence. Secondly, if such identification is admissible, may mug shots from police files, with police file numbers thereon, be so used and later admitted in evidence?
New York has a statute essentially analogous to R.C. 2945.55. In interpreting that statute the New York courts have construed it to permit only "in the flesh" out-of-court identification of a defendant and not an identification from a selection of photographs. People v. Caserta (1966), 19 N.Y. 2d 18 , 21, 224 N.E.2d 82. See, also, People v. Richardson (1970), 34 App. Div. 2d 559, 309 N.Y. Supp. 2d 669; People v. Christman (1969), 23 N.Y. 2d 429, 244 N.E.2d 703; People v. Cioffi (1956), 1 N.Y. 2d 70, 133 N.E.2d 703.
Section 393-b, New York Code of Criminal Procedure, reads as follows:
"When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification."
This court, in State v. Lancaster (1971), 25 Ohio St.2d 83, has decided otherwise. In Lancaster we decided that "* * * a `mug shot' of the accused taken after arrest, and the testimony of police officers as to statements describing the accused made to them by a prosecuting witness are admissible solely to indicate the process by which the accused was identified," where that process is under attack, and to corroborate that identification. Unlike the case at bar, the use of the mug shot in Lancaster could not give rise to suspicion in the minds of the jurors that the accused had prior criminal involvement, since it was there specified that the photograph was taken after the arrest for the crime for which he was being tried. R.C. 2945.55 does not limit evidence of a previous identification of such person to an in-the-flesh identification. We believe the General Assembly to have been aware that the identification process is quite often accomplished with pictures and other means.
Directing attention to the use of photographs from police files, other jurisdictions have held such evidence inadmissible for the reason that the use of such photographs makes obvious to the jury that defendant has had a prior involvement with the police which gave rise to the inclusion of his photograph in their files. Commonwealth v. Jamison (1969), 251 Pa. Sup. 379, 258 A.2d 529; Commonwealth v. Allen (1968), 212 Pa. Sup. 314, 242 A.2d 901; State v. Gluff (1969), 285 Minn. 148, 172 N.W.2d 63; Roberts v. Commonwealth (Ky. 1961), 350 S.W.2d 626; Barnes v. United States (C.A.D.C. 1966), 365 F.2d 509; State v. Baldwin (1927), 317 Mo. 759, 297 S.W. 10; Wilson v. State (1928), 111 Tex. Cr. 134, 11 S.W.2d 803; Alberty v. State (1939), 68 Okla. Cr. 246, 97 P.2d 904.
In Ohio, the general rule is that "the introduction of evidence tending to show that a defendant has committed another crime wholly independent of the offense for which he is on trial is prohibited." State v. Hecter (1969), 19 Ohio St.2d 167, paragraph one of the syllabus. See, also, Knight v. State (1896), 54 Ohio St. 365, 379; Farrer v. State (1853), 2 Ohio St. 54. There are, of course, exceptions to that rule, as where the prior offense, if shown to be part of a common plan or scheme and evidence thereof, is admitted to prove the elements of intent, motive, knowledge or identity. R.C. 2945.59; State v. Hecter, supra, paragraph two of the syllabus.
In the case at bar, the mug-shot photographs with police identification numerals thereon, particularly when coupled with the direct testimony of the state's witness that the pictures in evidence were "photographs of guys that have committed crimes," and the testimony of Detective Lane, suggested to the jury that appellant had had prior trouble with the law. Although the trial court stated that Sergeant Brown's statement that the photographs were of "possible suspects of armed robbery and burglaries" was to be disregarded, such limiting instruction was not sufficient to overcome the substantial risk that, despite such instruction, the jury would look to the police photographs in determining defendant's guilt of this offense. See Bruton v. United States (1968), 391 U.S. 123.
Under the circumstances in the case at bar, we believe it unjustifiable for the state, on direct examination, to present police mug shots, bearing police identification numbers, from which a reasonable inference can be drawn that the defendant, at some indefinite time in the past had had trouble with the law. Evidence of prior criminal involvement must satisfy the requirements of R.C. 2945.59, which these photographs do not.
R.C. 2945.59 reads as follows:
"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."
Appellant urges that the selection of his photograph, out-of-court, not in his presence or in the presence of his counsel, fogs his rights under the Sixth Amendment to the United States Constitution. We find no right-to-counsel problem here as was presented in United States v. Wade (1967), 388 U.S. 218. At the time witnesses Thompson and Jackson identified appellant from photograph selections, the investigation had not reached the accusatory stage, nor was the defendant in custody.
The admission of photographs from police files, with police file numbers thereon, and the testimony of witnesses Thompson, Brown, Jackson and Lane with respect to the identification of appellant from police photographs, constituted prejudicial error. Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for a new trial.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.