Hatcher v. State , 275 Ind. 49 ( 1981 )

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury, of two counts of armed robbery and sentenced to imprisonment for two consecutive terms of ten (10) years each. We find it necessary to reverse the judgment because of impermissibly suggestive identification procedures employed by the State.

Two black males entered a restaurant during the early afternoon. By use of guns and threats, they took money belonging to the business entity from one employee, Miss Seybert, and personal funds from another employee, Mr. Doyle. Both employees saw the bandits during the episode.

Indianapolis Police Officer Gillespie conducted photographic displays on several occasions for Seybert and Doyle. Following one such occasion, Doyle selected a photograph of Defendant as portraying one of the perpetrators of the robberies. The record reveals that this was the only occasion on which Defendant’s picture was displayed to the victims. Approximately one week later, Seybert and Doyle each selected the defendant and Johnny Jones in separate “lineups” arranged by the police and identified them as the robbers. The Defendant had been charged with the crimes at the time he was displayed in the “lineups.” He was not provided with counsel for the proceedings, and the record does not disclose whether or not he had been previously advised of his right to such counsel.

Defendant filed a pre-trial motion to suppress identification testimony from Doyle and Seybert upon the grounds that they had identified him at police “lineup” proceedings conducted subsequent to his arrest for the offense and in the absence of his counsel. The motion was overruled. At trial, over timely objection, Doyle and Sey-bert were permitted to identify the Defendant as one of the persons who robbed them and also to testify that they had previously so identified the defendant at the aforementioned “lineups.”

The Sixth Amendment right to counsel attached at or after the time that adversary judicial proceedings had been initiated against the accused. Kirby v. Illinois, (1972) 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417 (plurality opinion). In United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Kirby v. Illinois, supra, the United States Supreme Court held that the right to counsel encompasses the right to have an attorney present at a pre-trial “lineup” identification procedure conducted at or after the initiation of such criminal proceedings. In this State, the filing of an information or indictment begins the formal criminal process. Winston v. State, (1975) 263 Ind. 8, 11, 323 N.E.2d 228, 230. Therefore an accused is entitled to have counsel present at any “lineup” which is conducted subsequent to the filing of an information or indictment. Kirby v. Illinois, supra; United States v. Wade, supra; Winston v. State, supra. Thus, it is clear that Defendant had a Sixth Amendment right to have counsel present at the “lineup” conducted in this case.

Moreover, when police conduct an uncounseled “lineup” at a time when the defendant is entitled to counsel, the sanctions are clear. Evidence of a witness’ identification of the accused at the “lineup” is per se inadmissible at trial. Gilbert v. California, (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Defendant specifically challenges only the admission of evidence of the “lineup” identification. However, the conduct of an illegal “lineup” calls into question the admissibility of the witness’ in-court identification. United States v. Wade, supra. Thus, a witness’ in-court identification testimony must also be suppressed, unless the prosecution can establish by clear and convincing evidence that the in-court identification has an independent origin and is not the product of the illegal “lineup.” Gilbert v. California, supra; United States v. Wade, supra; Morgan v. State, (1980) Ind., 400 N.E.2d 111, 113; Love v. State, (1977) 266 Ind. 577, 581, 365 N.E.2d 771, 773. We must first determine, then, whether the facts of this case reveal a denial of Defendant’s Sixth Amendment right to counsel.

The State argues that Defendant waived his right to have an attorney present. Officer Gillespie informed him, six days in advance, that he would be placed in a “lineup.” Gillespie also told him, at that time, that he had a right to have an attorney present. The Defendant, however, made no response to this information, and Gillespie did not discuss Hatcher’s rights with him any further. Gillespie did not know at that time whether or not the defendant had counsel. Apparently, he did have counsel in an unrelated City Court matter, but the record does not disclose that an attorney had entered an appearance in this case. Neither does it disclose that Defendant did, in fact, have counsel in this case. The States argues, however, that Defendant’s knowledge of the impending “lineup” and of his right to have an attorney present, together with his failure to have an attorney present effected a waiver of that right.

The Court in United States v. Wade, supra, did indicate that a Defendant may waive his right to have counsel present at the “lineup.” After discussing the need for and the purpose of having counsel in attendance, the Court said: “Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an ‘intelligent waiver.’ See Carnley v. Cochran, (1962) 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.” 388 U.S. at 237, 87 S.Ct. at 1937, 18 L.Ed.2d at 1163. However, neither the United States Supreme Court nor this Court has ever been required to determine the standards to be applied in resolving whether or not to invoke such a waiver.

Waiver of the right to counsel in other contexts has received extensive examination. Such a waiver must be shown to have been knowingly, voluntarily and intelligently made. Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. This showing must appear on the record. Id.; Russell v. State, (1978) 270 Ind. -, 383 N.E.2d 309; Owen v. State, (1978) 269 Ind. 513, 381 N.E.2d 1235. Further, courts will indulge every reasonable presumption against a waiver. Johnson v. Zerbst, supra. In addition, the right to counsel does not depend on a request. Carnley v. Cochran, (1962) 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70, 76.

Cases decided subsequent to United States v. Wade and Johnson v. Zerbst clearly establish that these strict standards also apply to invocation of a waiver of the right to have counsel present at certain pre-trial proceedings. In Brewer v. Williams, (1977) 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, the United States Supreme Court discussed the question of waiver of the right to have counsel present during an interrogation. The Court explained that “ * * * the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law * * * (is whether) * * * the State [can] prove ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” 430 U.S. at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439 (quoting Johnson v. Zerbst, supra). The Court in Brewer v. Williams then pointed out that “[t]his strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pre-trial proceedings. Schneckloth v. Bus-tamonte, (1973) 412 U.S. 218, 238-40, 93 S.Ct. 2041, 2053-54, 36 L.Ed.2d 854, 869-70; United States v. Wade, (1967) 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149, 1163.” Id., 97 S.Ct. at 1242, 51 L.Ed.2d at 440.

In Schneckloth v. Bustamonte, supra, the accused argued that a “consent” to a search under the Fourth Amendment should be evaluated by the same standards used to determine a “waiver” for Sixth Amendment purposes, under the doctrine of Johnson v. Zerbst, supra. In disposing of this argument, the Court explained that the waiver standards of Johnson v. Zerbst, “ * * * were enunciated ... in the context of a fair criminal trial.” 412 U.S. at 235, 93 S.Ct. at 2052, 36 L.Ed.2d at 867. The Court further stated:

“The requirement of a ‘knowing’ and ‘intelligent’ waiver was articulated in a case involving the validity of a defendant’s decision to forego a right constitutionally guaranteed to protect a fair trial and the reliability of -the truth-determining process.” Id. at 236, 92 S.Ct. at 2052, 36 L.Ed.2d at 868.

“Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” Id. at 237, 92 S.Ct. at 2053, 36 L.Ed.2d at 868.

“The guarantees afforded a criminal defendant at trial also protect him at certain stages before the actual trial, and any alleged waiver must meet the strict standard of an intentional relinquishment of a ‘known’ right. But the ‘trial’ guarantees that have been applied to the ‘pretrial’ stage of the criminal process are similarly designed to protect the fairness of the trial itself.

“Hence, in United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Court held ‘that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel .. . ’ Id. at 272, 87 S.Ct. at 1956, 18 L.Ed.2d at 1186. Accordingly, the Court indicated that the standard of a knowing and intelligent waiver must be applied to test the waiver of counsel at such a lineup. See United States v. Wade, supra, 388 U.S. at 237, 87 S.Ct. at 1937, 18 L.Ed.2d at 1163.” Id. at 238-39, 93 S.Ct. at 2059, 36 L.Ed.2d at 869.

See Shelton v. State, (1979) Ind.App., 390 N.E.2d 1048, 1051. Thus, in light oí United States Supreme Court pronouncements on the general question of waiver, we must evaluate the case before us in terms of whether or not the defendant knowingly, voluntarily and intelligently waived his right to have an attorney present at the lineup.

It is clear from the record that Defendant did not waive his right to counsel. Although, Officer Gillespie orally informed him that he was entitled to have an attorney present, he made no response. Gillespie did not ask whether he wanted to have an attorney present, whether he had an attorney, or whether he wished to contact an attorney. The State emphasizes that Defendant did not ask to have counsel present. However, as we noted above, “where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, (1962) 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70, 76. See Brewer v. Williams, (1977) 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439. Likewise, a knowing, voluntary and intelligent waiver may not be inferred from a silent record. Fitzgerald v. State, (1970) 254 Ind. 39, 47, 257 N.E.2d 305, 311. See Carnley v. Cochran, supra. Therefore, we hold that the defendant did not waive his Sixth Amendment right to have an attorney present at the “lineup” proceedings.

It follows that the trial court erred when it admitted the testimony disclosing the “lineup” identifications. Gilbert v. California, supra, held that such evidence is per se inadmissible, saying:

“That testimony is the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’ (Citations omitted) The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” 388 U.S. at 272-73, 87 S.Ct. at 1956-57, 18 L.Ed.2d at 1186.

It has been urged that the error in admitting the evidence of the “lineup” identification was harmless, beyond a reasonable doubt, inasmuch as the witnesses also' identified the defendant, in court, as one of the perpetrators of the crime and had sufficient bases for such identifications independent of the “lineup” identifications. Acknowledging, arguendo, that the in-court identifications were not tainted by the impropriety of the “lineup” procedures, the error cannot be regarded as being harmless.

In Moore v. Illinois, (1977) 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424, a rape victim had been permitted to testify at the trial of the accused that she had previously identified him at a preliminary hearing at which he had not been represented by counsel, counsel not having been offered. The trial judge permitted the testimony, notwithstanding the illegality of the pre-trial identification, because there existed an “independent source” for the identification at the uncounseled confrontation. The Supreme Court reversed the Court of Appeals and remanded for a determination of whether the admission of such evidence was harmless constitutional error under Chapman v. California, (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065. The court said:

“But Gilbert held that the prosecution cannot buttress its case-in-chief by introducing evidence of a pretrial confrontation made in violation of the accused’s Sixth Amendment rights even if it can prove that the pretrial identification had an independent source. ‘That testimony is the direct result of the illegal lineup (come at by exploitation of [the primary] illegality.)’ (citing Gilbert), and the prosecution is ‘therefore not entitled to an opportunity to show that the testimony had an independent source.’ ” 434 U.S. at 231, 98 S.Ct. at 466, 54 L.Ed.2d at 435-36.

We do not question that under given circumstances, such error might be deemed harmless under the Chapman criteria. However, such circumstances do not appear from this record. The conviction hinged upon the identification testimony of Doyle and Seybert. Although their in-court identifications may have been permissible, notwithstanding their exposure to the taint of the illegal “lineup” proceedings, it cannot be said that the additional evidence of their having previously identified the defendant at the “lineups” did not buttress their in-court identifications of him.

We have been liberal in the past in determining that in-court identifications had bases independent of improper pre-trial identification procedures that had a potential to taint. However, to use the “independent basis” test in an indiscriminate manner in every case as a criteria for finding error in admitting evidence of illegal identifications to be harmless, would be to permit the “exploitation of the primary illegality” and would obviate the requirement that identification procedures be kept free of state induced suggestivity. It simply cannot be said that the evidence of the “lineup” identifications did not buttress the witnesses’ in-court identifications in this case. Obviously, the evidence was offered for that very purpose. To say that it did not impact upon the jury would be sheer speculation.

The State has also challenged the entitlement of a charged defendant to have counsel, as a matter of right, at “lineup” proceedings and argues that the proceedings were properly conducted, saying:

“What would be the function of counsel at a line-up? A defendant’s right to counsel is not a mere academic right of companionship, but such counsel is expected to perform a beneficial function. If counsel had been present at the lineup, he could not have interfered in the proceedings in any way. He could not have objected to the display of Defendant by the police nor could he have advised Defendant that he did not have to get in the line. The evidence of the line-up shows that it was held properly and that Defendant was identified without any suggestion or coercion by police.”

It is noted that counsel for the State has said that the “evidence,” not the “record,” of the lineup shows no impropriety.

We do not find it reassuring that the record before us discloses no impropriety in the “lineup” procedures. To give weight to this would be to draw an inference from a silent record. The presence of counsel at identification proceedings serves two vital purposes. First, as pointed out in United States v. Wade, supra, if counsel is present he can serve both his client's interest and that of the prosecution by the prevention of suggestiveness.

Secondly, if such impropriety occurs, notwithstanding his presence, he can see that an appropriate record is made. We take no comfort that the record before us discloses no suggestiveness when that record is entirely dependent upon the correctness of the memories of those who urge the acceptance of the evidence, and there was no one present to record, remember or even to observe matters that might detract from its credibility.

Because of our holding upon this issue, we do not meet the defendant’s challenges to the sufficiency of the evidence and the denial of his motion for a mistrial for an alleged failure of the State to disclose all witnesses.

The judgment is reversed, and the cause is remanded for a new trial.

DeBRULER and HUNTER, JJ., concur. PIVARNIK, J., dissents with opinion in which GIVAN, C. J., concurs.