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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henderson Lyn FOWLER, Defendant and Appellant.

Cr. 7265.

Decided: March 14, 1969

John D. Nunes, Public Defender, Alameda County, James H. Newhouse, Asst. Public Defender, Oakland, for appellant. Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

Henderson Fowler appeals, after trial by jury, from a judgment convicting him of robbery in the first degree (Pen.Code, § 211). We have concluded that the judgment must be reversed because the finding of guilt depends substantially upon evidence of an identification lineup which does not meet constitutional requirements.

On the evening of August 30, 1967 three young Negro men entered the office of the Edgewater Inn in Oakland. One of them asked for and obtained change; another then displayed a pistol and menaced the two employees present while the first man came behind the counter and took money from the cash box. After some conversation regarding the possible presence of more money, the three men left. The office in which the robbery occurred was well lighted; the bandits were there approximately ten minutes. The man who took the money from the cash box came very close to the employees during the robbery. At trial the two employees identified appellant as the man who took the money. They described the gunman as being somewhat thinner and shorter than the first robber. They were unable to describe the third man.

Two days after the robbery the two motel employees went to the Oakland Police Department and were shown several ‘mug shots.’ The pictures were all of Negro males of approximately the same age. Both witnesses picked appellant's picture from this group as the robber who had taken the money from the cash box. About half an hour later, the witnesses were shown another group of approximately twelve pictures of ‘associates' of appellant. All these photographs were of male Negroes of approximately the same age. From this group the witnesses selected the photograph of one Leon Gray as that of the gunman. The arrest of appellant and Gray was then ordered. On September 7, 1967 the witnesses attended a lineup which included Gray. Both witnesses identified him as the gunman in the robbery but one witness was uncertain. Gray was therefore released.

A few days later appellant came to the police station. After receiving a Miranda1 admonition appellant gave an officer a statement in which he denied participating in the August 30 robbery. The officer asked appellant if he had an attorney, but did not tell appellant that he had a right to the presence of an attorney at the forthcoming lineup.

Five men including appellant participated in the lineup. All were Negroes of approximately the same age and height; appellant and one of the men were somewhat heavier in build and darker in color than the others. The witnesses were aware that the purpose of this lineup was to identify the robber who had not been in the first lineup. Both witnesses positively identified appellant as the man who had taken the money from the cash box.

At the beginning of the trial the court took evidence out of the hearing of the jury concerning the circumstances of appellant's out-of-court identification; thereupon the court denied a defense motion which had been made on the authority of 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, to suppress evidence of the lineup identification. The theory of the motion was that the lineup evidence was inadmissible because appellant had not been informed of his right to have counsel made available and be present at the lineup. The trial judge denied the motion, holding that the police were not required to give such advice.

In United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, and Gilbert v. California, supra, 388 U.S. 263, 87 S.Ct. 1951, the Supreme Court held that an accused has the right to have counsel present at a police lineup. This rule was declared to be necessary in order to guarantee the right to counsel at all ‘critical stages' of criminal proceedings and to make meaningful the right to cross-examine all witnesses against a criminal defendant. The court held that a police lineup was not merely a preparatory process (United States v. Wade, supra, 388 U.S. at p. 227–228, 236–237, 87 S.Ct. 1926):

‘Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid (of counsel) * * * as at the trial itself.’ Powell v. State of Alabama, 287 U.S. 45, at 57, 53 S.Ct. 55, at 60, 77 L.Ed. 158.' 388 U.S. at p. 236, 87 S.Ct. at p. 1937.

The court pointed to the following factors in stressing the importance of counsel at a lineup: (1) Once the witness identifies a suspect at a police lineup, he is unlikely to change his mind at trial. (United States v. Wade, supra, 388 U.S. 218, 229, 87 S.Ct. 1926.) (2) In order to attack a lineup identification it must be reconstructed at trial. (United States v. Wade, supra, at pp. 231–232, 87 S.Ct. 1926.) (3) The tendency toward unfair and unreliable lineup identifications is inherent and need not be intentional on the part of police (United States v. Wade, supra, at p. 235, 87 S.Ct. 1926.) (4) Lineup procedures which deprive the defendant of the ability to bring effective scrutiny to bear upon the basis for in-trial identifications deprive a defendant of his right to cross-examine and confront the witnesses against him. (United States v. Wade, supra, at p. 235, 87 S.Ct. 1926.)

In a companion case (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) the court ruled that Wade and Gilbert are to be applied to cases in which lineups occurred after June 12, 1967 (the date of those decisions). (Also see People v. Feggans (1967) 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21.) Appellant's lineup took place after June 12, 1967.

Both the Wade and Gilbert cases involved lineups which occurred after the suspect had been indicted and after counsel had been appointed. Similarly, the California cases discussing Wade and Gilbert have involved suspects who had counsel at the time of the lineup (e. g., People v. Caruso (1968) 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336). Citing Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, the Attorney General urges this court not to ‘extend’ the Wade-Gilbert rule to a lineup such as appellant's, which occurred before appellant was indicted or had counsel.

But Supreme Court decisions after Massiah have indicated that the right to counsel attaches much earlier, both as an independent right (Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) and as an aid to the protection of other constitutional guarantees (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602). The California Supreme Court has also recognized that a ‘critical stage’ in criminal proceedings, entitling the accused to counsel may be reached long before an indictment is filed. (People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, cert. den., 381 U.S. 937, 946, 85 S.Ct. 1765, 14 L.Ed.2d 702.)

The factors which make a police lineup a ‘critical stage’ in the proceedings (United States v. Wade, supra, 388 U.S. 218, 236–237, 87 S.Ct. 1926) are present in preindictment as well as post-indictment lineups. The reasons given by the court (United States v. Wade, supra, at pp. 229–235, 87 S.Ct. 1926) for the importance of counsel's presence at the lineup apply whether the confrontation occurs before or after indictment. In some cases these factors may be more important before indictment; a suspect who has not been charged may be less likely to be on the alert for procedural unfairness and less willing to cast suspicion upon himself by objecting to police procedures.

It is true that “post-indictment” language was used in Wade (United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926) but that language applied naturally to the facts presented to the court in that case. Many other passages of the Wade, Gilbert and Stovall opinions indicate that the holdings were intended to avoid unfairness at all ‘confrontations for identification’ (e. g. Stovall v. Denno, supra, 388 U.S. 293, 296, 297–298, 87 S.Ct. 1967). In light of this language and the reasons underlying the Wade-Gilbert rule, we hold that appellant was entitled to have counsel present at the lineup even though he had not yet been charged.

Appellant argues that it is necessary, in order to give effect to this right, that a suspect be warned prior to the lineup of his right to have counsel present; without such a warning there has been no knowing waiver of that right. (Cf. Miranda v. Arizona, supra, 384 U.S. 436, 475, 86 S.Ct. 1602.) Respondent contends that the Miranda analogy is not pertinent because the Miranda warning is intended chiefly to dispel the coercive atmosphere at police interrogations. Such coercion is not a problem at a lineup; hence, it is argued, no admonition should be required. But the Miranda warning has other purposes. In addition to dispelling the inherent pressure of police interrogation, the warning informs the accused of his rights and makes clear to him the adversary nature of the criminal proceedings, which have begun. (Miranda v. Arizona, supra at pp. 467–468, 86 S.Ct. 1602.) These purposes apply as well to a warning that the accused has the right to counsel at a lineup; this conclusion is strengthened by the explicit recognition in Wade that the dangers inherent in police interrogation as described in the Miranda opinion are also present in lineup situations, and by the court's decision in Wade to provide the same safeguards for lineups as for interrogations in Miranda.2 (United States v. Wade, supra, 388 U.S. 218, 230, 87 S.Ct. 1926.)

As the Supreme Court recognized, (Miranda v. Arizona, supra, 384 U.S. 436, 470–471, 86 S.Ct. 1602) the role of counsel may not be the same at a pretrial proceeding as at trial; but that difference does not settle the question whether a suspect must be informed of his right to counsel before a waiver can occur. We conclude that it is just as necessary that the accused be warned of his Wade-Gilbert right to counsel at a police lineup as of his right to counsel at police interrogation. (Rivers v. United States (5th Cir. 1968) 400 F.2d 935, 940.)

The Wade opinion contains the following paragraph (388 U.S. at p. 239, 87 S.Ct. at p. 1938):

‘Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today ‘in no way creates a constitutional straight-jacket which will handicap sound efforts at reform, nor is it intended to have this effect.’ Miranda v. State of Arizona, [384 U.S.] at 467, 86 S.Ct. at 1624.'

Relying on this language the Attorney General argues that the Oakland Police Department has in fact adopted regulations safeguarding lineup procedures; those regulations were received in evidence. The Attorney General argues that there is thus no basis for regarding the lineup in this case as a critical stage in the proceedings and that the right to counsel therefore did not attach; it is urged that we should adopt this conclusion in order to encourage the development of such regulations by other law enforcement agencies.

But adoption of regulations by the police does not insure that there will never be a lapse in their application. Only the presence of counsel—as the court noted in Wade—will provide a guarantee that fair procedures will be followed or that unfair procedures will be exposed at a later trial.

We note also that although the language upon which the Attorney General relies is found in the opinion of the court, written by Mr. Justice Brennan, its authority is to be doubted. On the basic point of an accused's right to counsel at lineup, a majority concurred; however the concurring opinions reject the theory that the critical nature of the lineup may be removed by local regulations. Thus Mr. Justice Clark (388 U.S. at p. 243, 87 S.Ct. at p. 1941), Mr. Justice Black (388 U.S. at pp. 246–247, 87 S.Ct. at pp. 1942–1943), and Mr. Justice Fortas (388 U.S. at p. 262, 87 S.Ct. at p. 1950 [joined by the Chief Justice and Mr. Justice Douglas]) declare that a police lineup is always a critical stage. The paragraph in question thus seems to represent the view of only one justice, not a majority of the court.

The effect of the erroneous admission of evidence of identification and the rules for treating such evidence on retrial are set forth in Gilbert v. California, supra, 388 U.S. 263, 272–274, 87 S.Ct. 1951. Receiving evidence of the in-court identification does not require reversal if the reviewing court can determine from the record either that its admission was harmless error or that the in-court identification was not the result of the improper lineup identification. If the record is inadequate to allow the latter determination to be made, the case should be returned to the lower court for it to decide that question, either at a special hearing or on retrial. If the reviewing court determines that admission of the evidence was the fruit of the improper lineup identification and was not harmless error, the judgment must be reversed.

Evidence of the improper lineup identification itself, if introduced at trial, requires reversal unless the appellate court determines that its admission was harmless error. On retrial, testimony as to the improper lineup may not be admitted; Gilbert requires that a ‘per se exclusionary rule’ be applied to such evidence. (388 U.S. at p. 273, 87 S.Ct. 1951.)

The standard to be applied in determining whether an error is harmless is stated in Chapman v. California (1967) 386 U.S. 18, 23–24, 87 S.Ct. 824, 827, 17 L.Ed.2d 705:

‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction [quoting Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171] * * * An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless.’ In order to pass this test an error must be ‘harmless beyond a reasonable doubt.’ (386 U.S. at p. 24, 87 S.Ct. 824.)

In order to demonstrate that an incourt identification is not tainted by a prior improper lineup identification, the prosecution must show an independent source for the trial identification. (Gilbert v. California, supra, 388 U.S. 263, 272, 87 S.Ct. 1951.) This independent basis must be proved by ‘clear and convincing’ evidence. (United States v. Wade, supra, 388 U.S. 218, 240, 87 S.Ct. 1926; People v. Caruso, supra, 68 Cal.2d 183, 189, 65 Cal.Rptr. 336, 436 P.2d 336.)

Evidence of the lineup identifications was introduced by the prosecution at the trial below; therefore the judgment must be reversed unless this court finds that admission of that evidence was harmless error. The Attorney General suggests that ‘evidence of the lineup identifications did not contribute significantly to appellant's conviction,’ relying upon People v. Slutts (1968) 259 A.C.A. 949, 66 Cal.Rptr. 862. But the question is not whether the evidence contributed ‘significantly’ to the conviction but rather there exists a ‘reasonable possibility’ that it might have contributed at all to the conviction or that it ‘possibly influenced’ the jury. (Chapman v. California, supra, 386 U.S. 18, 23, 24, 87 S.Ct. 824.)

In Slutts, evidence of an unfairly conducted mug shot identification was found harmless on three grounds:

(1) The witness' identification of the defendant was never positive at trial and thus was not the major issue there;

(2) Defendant could not account for his presence at the time of the crime, and what feeble attempts he made in this direction were impeached by other witnesses; and

(3) There was other evidence linking the defendant to the crime, including a separate identification at a preliminary hearing and a positive identification of the defendant's car as the one involved in the crime.

In the present case there was no evidence against appellant other than the witnesses' identification; that identification was the sole issue at trial. Furthermore, appellant did present an alibi supported by several witnesses; the only impeaching evidence came from his alleged co-robber, whose motives for attempting to disassociate himself from appellant during the police investigation are apparent.

Some California courts have tended to equate a strong independent basis for the identification—e. g., good observation of the accused at the time the alleged crime was committed—with harmless error (e. g. People v. Romero (1968) 263 A.C.A. 651, 655, 69 Cal.Rptr. 748; People v. Farley (1968) 267 A.C.A. 236, 240, 72 Cal.Rptr. 855). Such an interpretation of harmless error might suggest in the present case that admission of the evidence of the lineup identifications was not prejudicial; the witnesses observed the robbers for a 10-minute period in a well lit room and there is evidence of a separate pretrial identification (the mug shots). But such an inquiry focuses on the reliability of the identification rather than upon the effect of the evidence on the jury. Under the Chapman standard we must reverse if the jury was ‘possibly influenced’ by the evidence; given the total lack of other evidence implicating appellant in the crime and the overwhelming importance of the witnesses' identification of him, we cannot say here that the lineup evidence was ‘harmless beyond a reasonable doubt.’

The Attorney General also suggests that we make an ‘informed judgment’ that the record shows that the in-court identifications had sources independent of the invalid lineup identification. Because reversal is required, such a conclusion would bear only on the issue of what evidence may be received at retrial. Therefore the determination can best be made by the trial court where the issue can be brought into sharp focus in the examination of the witnesses.

Appellant's other contentions need not be considered; they are either unlikely to come into question on retrial or will emerge in a greatly altered context to be established by the evidence which will be presented to the trial court.

The judgment is reversed.


1.  Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.  See page 237 of the opinion, page 1934 of 87 S.Ct.: ‘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.” (Emphasis added.)

CHRISTIAN, Associate Justice.

DEVINE, P. J., and RATTIGAN, J., concur.

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