Charpentier v. State , 1987 Wyo. LEXIS 437 ( 1987 )

MACY, Justice.

Appellant Thomas B. Charpentier was found guilty by a jury of forgery in violation of § 6-3-602(a)(i) and (iii), W.S.1977. The district court fined appellant $500 and sentenced him to one and one-half to three years in the Wyoming State Penitentiary.

Appellant contends on appeal to this Court that, because he was not represented by counsel at the preindictment lineup, his conviction should be reversed. Although cognizant of the rule that the right to representation by counsel attaches only when adversarial judicial criminal proceedings have commenced, appellant urges us to find that the right attaches at a preindictment line-up.

We decline to extend the right to representation by counsel guaranteed by the Sixth Amendment to the United States Constitution and Art. 1, § 10 of the Wyoming Constitution to the preindictment lineup stage of the criminal proceedings, and consequently we affirm.

On January 17, 1986, at approximately nine in the morning, two men approached a teller window at Norwest Bank in Gillette, Wyoming. One of the men endorsed a check with the name Tom Charpentier and placed a driver’s license belonging to Tom Charpentier on the counter. The signature endorsed on the back of the check matched the signature on the driver’s license. On the front of the check, the name of the original payee was marked out and the name Tom Charpentier was written in its place. The teller cashed the check, paying the man primarily with $50 and $20 bills.

Approximately a half an hour later, the teller learned that the check had been reported stolen earlier that morning and that a stop payment order had been placed on it. The bank contacted the Campbell County sheriff’s office, and shortly thereafter Deputy John Bruner arrived to investigate. He obtained a description from the teller of the man who cashed the check and an address for Tom Charpentier. Finding no one at home at the address, the deputy spoke to the landlord and was told that Charpentier had paid his rent that day with $50 bills. As he was leaving, Deputy Bruner saw appellant, whose appearance matched the description provided by the bank teller, coming out of the apartment. Deputy Bruner approached appellant and, following a brief discussion, arrested him for forgery.

At the sheriff’s office later that afternoon, appellant was placed in a lineup with four other men. The bank teller then was asked if the man for whom she had cashed the check that morning was among the five men. She identified appellant. Later that evening, Deputy Bruner filed a criminal complaint charging appellant with forgery and fraud.

Prior to trial, appellant filed a motion to suppress the evidence of identification on the ground that the lineup violated his constitutional right to representation by counsel. Citing Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the district court denied the motion on the ground that appellant’s right to counsel had not attached at the time he was placed in the lineup and identified by the State’s witness.

In Kirby, the United States Supreme Court was asked to decide whether the Sixth Amendment right to counsel attached when the defendant was identified by the victim prior to indictment but after arrest. The Supreme Court stated:

“[I]t 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

* * * whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

* * * * * *

“* * * ‘The rationale of [that rule is] that an accused is entitled to counsel at any “critical stage of the prosecution,” * * V * * * We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.” Id., at 406 U.S. 688-90, 92 S.Ct. at 1881-83 (emphasis in original).

Since Kirby, the Wyoming Supreme Court has been confronted with a number of cases involving the question of when the right to counsel attaches. State v. Heiner, Wyo., 683 P.2d 629 (1984); Brown v. State, Wyo., 661 P.2d 1024 (1983); Auclair v. State, Wyo., 660 P.2d 1156, cert. denied 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 249 (1983). In each case, we applied the rule and rationale set forth by the United States Supreme Court in Kirby. Most recently in State v. Heiner, 683 P.2d at 637, we said:

“It is clear that in this jurisdiction a Sixth Amendment right to counsel attaches only when adversarial criminal proceedings have been commenced against an accused. It follows that * * evidence obtained * * * prior to the filing of the criminal complaint [was] not obtained in violation of [the defendant’s] Sixth Amendment right to counsel.” (Emphasis added and citation omitted.)

Appellant having failed to demonstrate any compelling reason why this Court should depart from the established rule, we hold that he was not entitled to counsel at the preindictment lineup.

Affirmed.

URBIGKIT, J., filed a dissenting opinion.