Summary
In State v. Lathan, 30 Ohio St.2d 92, 99, 282 N.E.2d 574 (1972), the Supreme Court of Ohio held that when an identification procedure is unduly suggestive the State's burden of proof is to establish the reliability of eyewitness testimony by clear and convincing evidence.
Summary of this case from State v. BurnsOpinion
No. 71-508
Decided May 10, 1972.
Criminal procedure — Evidence — In-court identification of accused — Inadmissible, when — Admissibility determined, how — Totality of circumstances — Effect of pre-trial identification — Erroneous admission of in-court identification.
1. Where the illegality of a critical pre-trial confrontation has been established, a subsequent in-court identification of an accused by a witness to whom the accused was exhibited at such confrontation before trial, in the absence of counsel, must be excluded unless it can be established by clear and convincing evidence that such in-court identification had an independent origin or that error in its admission was harmless.
2. In determining whether an in-court identification was a product of an improper lineup, or was based upon independent recollection and observation of the accused by the witness, the totality of the circumstances surrounding the identification must be considered. (Paragraph two of the syllabus of State v. Jackson, 26 Ohio St.2d 74, approved and followed.)
3. Where a review of the totality of the circumstances surrounding an in-court identification reveals that the witness' opportunity at the time of the crime to observe her attacker was meager, and the circumstances surrounding a later improper "police confrontation" between the witness and the suspect were so highly suggestive as to the identity of the suspect as to create a grave opportunity for a mistaken identification, the admission at trial of an in-court identification by that witness constitutes error.
APPEAL from the Court of Appeals for Cuyahoga County.
At about 3:30 a.m. on the morning of November 23, 1968, Florence Kitka, owner of the Silver Bell Tavern in Cleveland, and her friend Tom Stevens, had completed locking the tavern for the night. They were approached from behind by two men, one of whom placed a gun to Mrs. Kitka's neck and ordered her to unlock the tavern door. The other man placed a gun to the head of Stevens. Mrs. Kitka briefly turned to her assailant and told him that the alarm would be set off if she opened the door, and at that time she "got a glimpse of his face."
All four parties remained outside the tavern for a period of two to five minutes, during which time Stevens caught a glimpse for about ten seconds of the face of the robber who was holding the gun on Mrs. Kitka. Due to the indirect lighting and shadows cast by the robber's hat while outside the building, and the dim lighting inside the tavern, Stevens was unable to get a good enough look at either of the robbers to identify them.
After the door was unlocked the two men forced Mrs. Kitka and Stevens back inside the tavern. The tavern was dark, except for a dim light let in through the venetian blinds, and neither robber placed himself in a position where he could easily be seen by either of the victims. While inside, the alarm system was tripped and both robbers fled, taking Mrs. Kitka's handbag and $410 in cash from Stevens. Mrs. Kitka's handbag contained about $200 and some credit cards belonging to her.
After the robbery, Mrs. Kitka provided the police with a description of the man who had held the gun on her, stating he was a black male; 20 to 25 years of age; six feet tall; 165 pounds; light skinned; with a small mustache. She also stated that the robber had on a dark-brown, short car coat, dark pants, black pull-on shoes and a hat.
Four days after the robbery, Mrs. Kitka was called by the Cleveland Police Department to see if she could identify a woman, Shirley Lewis, who had been caught attempting to use Mrs. Kitka's stolen Sears charge card. Mrs. Kitka was also told that a male had been arrested in connection with the use of the charge card. Two days later Mrs. Kitka attempted, but was unable, to identify Shirley Lewis. She then asked if she could see the male accomplice, stating: "the only way this young lady could have got the charga-plate was from the man who held me up * * *." She was then advised that the defendant was being held in the county jail, and that he would be brought to the city police station for her to see.
The defendant was then picked up at the county jail, told to dress in his street clothes, and taken to the central police station. The defendant refused to waive his right to counsel at lineup, and no lineup was held. Mrs. Kitka was then advised by the police that the defendant had "refused the line-up," but that a "confrontation" would take place.
The defendant was taken into a small room by a detective who remained with him, and a second detective then brought Mrs. Kitka into the same room. No other persons were in the room during the time of the confrontation, and the defendant was the only black male in the room and the only person in the room who was a stranger to Mrs. Kitka. The confrontation lasted approximately 20 minutes, during which time the defendant, at Mrs. Kitka's request, was made to wear a hat. After the confrontation, Mrs. Kitka was shown a photograph of the defendant.
At trial, Mrs. Kitka made an in-court identification of the defendant at the request of the prosecution. Upon cross-examination, testimony concerning the police station identification was elicited, and the defense counsel then moved to strike all of Mrs. Kitka's identifications as having been the product of an improper and suggestive confrontation. An evidentiary hearing on the pre-trial identification issue resulted in a finding that the identification procedures used by the police were unnecessarily suggestive. Nevertheless, the trial court overruled the motion to strike the in-court identification, on the ground that Mrs. Kitka was able to identify the defendant due to observations independent of the police station confrontation.
On July 28, 1969, the jury returned verdicts of guilty to two counts of armed robbery. The Court of Appeals affirmed the judgment of the trial court, without opinion.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Harvey R. Monck, for appellee.
Mr. Isaac Schulz, for appellant.
The question upon appeal involves the issue of whether the improper pre-trial identification procedures employed by the police so tainted the victim-witness' in-court identification of the defendant as to require that such identification be excluded from evidence at the trial, or whether the in-court identification was shown by clear and convincing evidence to have been the result of an observation having an independent origin other than the pre-trial confrontation.
There is no question that defendant's Sixth Amendment right to counsel at any critical confrontation held by the prosecution at pre-trial proceedings was violated by the procedures employed by the police. The fact that this confrontation occurred prior to indictment in no way lessens the fact that the results might well determine his fate, and that "counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade (1967), 388 U.S. 218; Stovall v. Denno (1967), 388 U.S. 293, 298.
There having been no effective showing that defendant waived his right to counsel at the pre-trial confrontation, we need only comment that the apparent practice of holding a "confrontation" without counsel, in an instance where a suspect refuses to waive his right to counsel at a lineup, constitutes a naked attempt by the police to circumvent the dictates of the holding in Wade, supra, and Gilbert v. California (1967), 388 U.S. 263. We strongly admonish against such procedure.
Testimony of a detective of the Cleveland Police Department, in response to the trial court's inquiry as to why Mrs. Kitka was brought in to see the suspect after he had refused to waive his right to counsel in a line-up, was: "The next procedure is, if they refuse to waive counsel at the lineup, then we confront."
The dictates of Wade and Gilbert do not require the automatic exclusion of an in-court identification so long as the state can either establish by clear and convincing evidence that the in-court identification was based upon an observation of an independent origin other than the pre-trial confrontation, or, that the error in its admission was harmless.
The court, in Wade, at page 241, stated that the test to be applied in determining whether the in-court identification was based upon observations of an independent origin, is "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 distinguished to be purged of the primary taint."
In making this determination, "* * * the totality of the circumstances surrounding the identification must be considered." State v. Jackson (1971), 26 Ohio St.2d 74, 77.
An examination of Mrs. Kitka's testimony at trial regarding the in-court identification of the defendant indicates that such identification did not stem from, and was not tainted by, the illegal confrontation. However, an examination of the totality of the circumstances surrounding the identification, including the prior opportunity to observe the alleged criminal act and the discrepancy between the pre-confrontation description given the police and the defendant's actual description, indicates that little opportunity existed for an independent observation at the time of the crime.
Stevens, although also a victim, was unable to provide a meaningful description of either of the attackers, and has testified that due to the bad lighting conditions both inside and outside the building he was unable to identify either. Further, we note that Mrs. Kitka was never afforded an opportunity to clearly see the face of her attacker, as was the victim in State v. Jackson, supra, at 78, or the victim in State v. Hurt (1972), 30 Ohio St.2d 86. The testimony reveals that she was approached from behind while outside the building, and although there was a light directly overhead, her attacker's hat shadowed his face. Her only glimpse (three to five seconds) of her assailant was while he was holding her from behind with a gun to her head.
Mrs. Kitka's pre-confrontation description to the police was meager, including no facial features other than that her attacker was light-complected and had a mustache. She also stated that her attacker was approximately six feet tall, whereas the defendant herein is 5 foot 7 inches tall.
We find, then, a conflicting situation in which the victim, although afforded only a meager opportunity to see her assailant at the time of the robbery, and having been unable to accurately describe him immediately after the robbery, testified eight months later as to her firm recollection of the identity of her assailant. The court, in Wade, supra ( 388 U.S. 218), at 229, having foreseen such a possibility, and being aware that "* * * the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest," stated, at page 241: "It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the line-up."
An examination of the circumstances of the confrontation, in light of the ten criteria used in United States v. O'Connor (1968), 282 F. Supp. 963, 965, indicates the following:
Prior to the confrontation, which took place in a city police station, Mrs. Kitka was advised that the suspect had been apprehended in the company of a young lady who had used a charge-plate that had been stolen from her on the night of the robbery. Unable to identify the young lady, and knowing that the male suspect was still in jail, Mrs. Kitka specifically requested that she be allowed to see the male suspect since "the only way this young lady could have got the [Mrs. Kitka's] charga-plate was from the man who held me up."
Mrs. Kitka was also told, prior to the confrontation, that the suspect had refused to take part in a line-up, when in fact he had only refused to waive his right to counsel at line-up. No reason was advanced as to why a line-up could not have been held subsequent to the defendant having obtained counsel, and no emergency, such as existed in Stovall, supra, is found in the record.
At the confrontation itself, the defendant was the only black person in the room, and he was the only person whom Mrs. Kitka did not know. He was wearing clothing similar to the clothing described by Mrs Kitka the night of the robbery, and he was instructed to wear a hat prior to the identification being made. His status as a suspect in the eyes of the police was confirmed by a detective's statement: "We'll bring you together so that you can identify your man, in a separate room," as well as the fact that the defendant was still in jail although not directly linked to the wrongful use of the stolen charge plate.
It is difficult to imagine circumstances more suggestive to a wrongful identification than those which occurred in this matter. This high potential for a miscarriage of justice, when weighed against the meager opportunity for the witness to clearly see her attacker on the night of the crime, and her failure to provide a description which accurately described the defendant herein, requires us to find on this issue in favor of the defendant.
Without placing total weight on any one of the above criteria, and with acknowledgment that additional criteria may exist in other cases, we hold that the totality of the circumstances surrounding this in-court identification fails to establish by clear and convincing evidence that the in-court identification of the defendant was the result of an observation of an independent origin.
There being no cumulative evidence sufficient to show the identity of the defendant beyond a reasonable doubt, it follows that the error in admitting the tainted in-court identification was not harmless.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings according to law.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, LEACH and BROWN, JJ., concur.
CORRIGAN, J., dissents.