PEOPLE v. MARTIN

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Kenneth MARTIN, Defendant and Appellant.

Cr. 7298.

Decided: June 04, 1969

Gene A. Noland, by appointment of the Court of Appeal, San Francisco, for appellant. Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Eric Collins, Deputy Attys. Gen., San Francisco, for respondent.

Defendant appeals from a judgment of conviction, following a jury trial, of robbery in the second degree (Pen.Code, § 211). The chief contention on appeal involves the admissibility of evidence of the identity of defendant.

Statement of Facts

At approximately 7:45 p.m. on January 5, 1968, Mary Y. McCauley came out of the Vallejo Bible Church carrying two folding chairs which she intended to put in her automobile which was parked nearby. A young Negro male walked in front of her and looked at her in such a way that she was frightened. Because she was fearful, she simply placed the chairs against the automobile and then attempted to go back into the church. While she was trying to open the church door, another young Negro male came up to her and tugged at her purse. The purse strap broke and Mrs. McCauley fell into the church. When she recovered herself both the purse and the young men were gone. The struggle for the purse took about a minute and one-half and because they were then at very close quarters, Mrs. McCauley was able to get a close look at the face of the robber. Among other things, the purse contained about $106.00. Mrs. McCauley promptly called the police.

That same evening at about 9:15 p.m., Officers Rechner and Lyon of the Vallejo Police Department stopped an automobile in which defendant was a passenger. Rechner told defendant that a crime had been committed and that defendant closely resembled the person responsible. The officer asked defendant if he would come to the police station and told him that if he were cleared the police would provide him with transportation from the station. At this time defendant was wearing a longsleeved black sweater, dark trousers and a light shirt with a large collar. Defendant was turned over to Detective-Sergeant Lynch, the investigating officer. Rechner told Lynch that defendant was at the station for viewing and was not under arrest. At this time defendant had not been advised of any constitutional rights.

Meanwhile, Mrs. McCauley was at the police station where she initially looked at a number of pictures in an attempt to identify the robber. She did not find a picture of defendant among the photographs which she reviewed. Next she viewed two Negro males through a one-way mirror. During the viewing these two men were accompanied by an individual in civilian clothing. One of the men was immediately rejected by Mrs. McCauley. Because he was the same height and wore dark clothes, she viewed the other a little longer before deciding he was not the robber. In the company of policewoman Birch, Mrs. McCauley next viewed defendant through the one-way mirror. Defendant was accompanied by a uniformed police officer. As soon as Mrs. McCauley looked through the one-way mirror she said to Officer Birch, ‘That is the face of the man that took my purse.’ However, she observed that defendant did not have on a white collar at the time the purse was snatched. Policewoman Birch testified that Mrs. McCauley stated that she was positive this was the man, but could not definitely swear to his identity.1 Mrs. McCauley denied that she had made such a statement, and maintained that any uncertainty on her part was based on the white collar. The viewing took place at 9:30 a.m. At about 1:00 a.m. the next morning the police telephoned Mrs. McCauley to ask her to return to the station to again identify defendant. She refused because she was sure in her mind that defendant was the robber.2 Some time after defendant had been identified by Mrs. McCauley the investigating officer advised him of his constitutional rights. Defendant had $34 in his possession.

The abandoned purse was later found by a 12-year-old boy near his home and his mother turned it over to Mrs. McCauley's husband who is a Vallejo police officer. At the police station, Officer McCauley dusted the purse for fingerprints and lifted two smudged and apparently unreadable prints. These prints were not forwarded to any agency for identification.

Defendant took the stand and denied that he had snatched the purse. He stated that on the evening of the robbery he had played basketball with one Cleveland Gulley until about 6:30 p.m. They then went to Gulley's house where they played records and talked with Gulley's sister until about ten minutes after eight. After leaving Gulley's house they caught a ride with an Anthony Williams and were subsequently stopped by police. Gulley's young sister recalled that defendant was at her home at approximately 7:00 p.m. on a Friday sometime in January. During the course of cross-examination, defendant admitted to two prior convictions for robbery.

At the trial Mrs. McCauley, on direct examination, identified defendant as the person who had seized her purse. She was not examined by the district attorney concerning the identification at the police station, but she did mention on direct examination that she had made an out-of-court identification. The evidence concerning the prior identification of defendant at the police station was then elicited on cross-examination. After the People rested, the defense called Officer Birch and elicited her further testimony as to the out-of-court identification. At the conclusion of Officer Birch's testimony, and out of the presence of the jury, defendant moved to strike Mrs. McCauley's in-court identification. Defendant noted the absence of counsel at the time he was viewed by Mrs. McCauley and maintained that the evidence should be stricken under the doctrine established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. After listening to the arguments of counsel, the court called Mrs. McCauley as its own witness. The court questioned Mrs. McCauley carefully out of the presence of the jury and learned for the first time that two other individuals had been viewed before she viewed defendant, and that the police had not suggested to the witnesses that defendant was the person who had snatched the purse. The court then denied the motion to strike indicating that it could be renewed at the close of the case.3 The motion was not renewed.

Application of the Wade Doctrine

1. The Right to Counsel

Defendant contends that he was entitled to counsel at the pretrial viewing through the one-way mirror at the police station. The main thrust of his argument is that because he was denied his constitutional right to counsel, Mrs. McCauley's in-court identification should consequently have been excluded under the doctrine established in United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926. In Wade it was held that the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings ‘Where counsel's absence might derogate from the accused's right to a fair trial.’ (P. 226, 87 S.Ct. p. 1932.) Accordingly, it was there held that a pretrial lineup conducted for identification purposes can constitute a critical prosecutive stage at which an accused is entitled to the aid of counsel. (See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.) In the instant case it is quite clear that at the time defendant was identified at the police station he did not have the aid of counsel, and had not been advised of his right to counsel and had not waived any such right.4 We, therefore, proceed to consider whether defendant's right to counsel had attached at the time he was identified at the police station.

Initially, we observe that although both Wade and Gilbert involve lineups consisting of more than one individual, the subject rule is also applicable to a single-person identification confrontation. (See Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and see United States v. Wade, supra, 388 U.S. 218, 229, 233, 87 S.Ct. 1926; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.) In Wade, moreover, the court specifically questioned the practice of using one-way mirrors for identification purposes. (United States v. Wade, supra, 388 U.S. at pp. 230–231, fn. 13, 87 S.Ct. 1926; see also Rivers v. United States, 5 Cir., 400 F.2d 935, 940.)

In the present case the People maintain that the right to counsel did not attach at the time of the viewing because defendant was not then under arrest and suspicion had not focused on him. They argue that because defendant was not arrested and was not the sole person under investigation, a ‘critical stage’ in the proceedings had not been reached. In light of the rationale of Wade we cannot agree with these contentions. In Wade the court pointed out the ‘innumerable dangers' inherent in a ‘compelled confrontation’ and explained how these dangers might derogate from a fair trial. (388 U.S. at p. 228, 87 S.Ct. 1926.) Among the factors stressed by the court are the following: (1) That once a witness has identified an individual, he will be reluctant to retract or reconsider (p. 229, 87 S.Ct. 1926); (2) that the objectivity of a witness-victim is limited (p. 230, 87 S.Ct. 1926); (3) that risks of improper suggestion attend lineup procedures (pp. 229–230, 87 S.Ct. 1926); (4) that in the absence of counsel neither the defendant nor the witness are alert to the possibility of prejudice (p. 230, 87 S.Ct. 1926); and (5) that it is often most difficult for the defendant to accurately reconstruct the lineup during the course of the trial. (Pp. 230, 231–232, 87 S.Ct. 1926.)

In the present case the dangers inherent in a ‘compelled confrontation’ were present when defendant was viewed by Mrs. McCauley. Accordingly, it seems clear to us that the identification procedure was a ‘critical’ confrontation which, in the absence of counsel, threatened to derogate from the fairness of defendant's trial. We are satisfied, moreover, that the crucial inquiry is not whether defendant had been placed under arrest or whether suspicion had focused on him, but whether his right to a fair trial was in jeopardy.5

We are persuaded to our conclusion by analogy with the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which requires that ‘when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way * * *. He must be warned prior to any questioning that he has the right to remain silent * * * that he has the right to the presence of an attorney, * * *’ (Pp. 478–479, 86 S.Ct. p. 1630.) Although Miranda is specifically concerned with possible violations of the privilege against self-incrimination, the rule stated also indicates that the right to counsel attaches when an individual is taken into custody or significantly deprived of his freedom by the authorities. Such custody could be considered a ‘critical stage.’ In the present case defendant had been stopped by police officers and his presence at the police station had been requested. He was viewed in the company of a uniformed officer. In People v. Hazel, 252 Cal.App.2d 412, 60 Cal.Rptr. 437; we discussed the California cases dealing with ‘custody’ as follows: ‘In People v. Arnold, 66 Cal.2d 438, 445–448 [, 58 Cal.Rptr. 115, 426 P.2d 515], the California Supreme Court recognized that custody could occur other than by the physical deprivation of a subject's freedom of action in any significant way. It was there held that custody occurs if a suspect is led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority. [Citation.]’ (P. 417, 60 Cal.Rptr. p. 440.) In the instant case there can be no doubt that defendant, as a reasonable person, was led to believe that he was deprived or restricted of his freedom of action or movement by the police authorities.

In summary, it is our conclusion that the police station pretrial identification confrontation by one-way mirror constituted a ‘critical stage’ in the proceedings against defendant. Since the absence of counsel at such a stage may derogate from the right to a fair subsequent trial, defendant had the right to the presence of counsel at the confrontation and this Sixth Amendment right attached at the time defendant was taken into custody by the authorities.

2. The In-Court Identification

The conclusion that defendant was entitled to be represented by counsel at the time of the pretrial identification does not necessarily require a reversal of the judgment. Under the rule established in Wade and Gilbert, the admission of an in-court identification does not require reversal and a new trial if it can be ascertained by clear and convincing evidence that the identification had an origin independent of the unconstitutional lineup, or that the introduction of the in-court identification was in any event harmless error.6 (Gilbert v. California, supra, 388 U.S. 263, 272, 87 S.Ct. 1951; see United States v. Wade, supra, 388 U.S. 218, 239–240, 87 S.Ct. 1926; see also People v. Hogan, 264 A.C.A. 300, 304, 70 Cal.Rptr. 448; People v. Douglas, 259 Cal.App.2d 694, 698, 66 Cal.Rptr. 492; People v. Stoner, 65 Cal.2d 595, 601–602, 55 Cal.Rptr. 897, 422 P.2d 585.)

In the instant case it is apparent that since the only witness to the crime was the identifying witness, any error in the admission of the in-court identification could not possibly constitute harmless error. Our inquiry, therefore, becomes focused upon the question whether the courtroom identification ‘had an independent origin,’ thus precluding error. In denying the motion to strike the in-court identification, the trial court did not indicate whether its ruling was based on its determination that the pretrial identification was a legal confrontation, or on the basis that, although it was illegal, Mrs. McCauley was not precluded from identifying defendant in the courtroom because the People had established that the courtroom identification ‘had an independent origin.’ In view of our conclusion that the pretrial identification was an illegal confrontation as a matter of law, we must, therefore, determine whether the trial court had before it sufficient clear and convincing evidence to prove that the in-court identification had a basis independent of the illegal confrontation.

Once a defendant has demonstrated, as defendant did here, that a pretrial identification was an illegal confrontation, the burden shifts to the prosecution to establish to the satisfaction of the trial judge, by clear and convincing evidence, that the in-court identification was not tainted by the pretrial identification but rather was based upon observations of the suspect other than the lineup investigation. (United States v. Wade, supra, 388 U.S. 218, 240–241, and particularly fn. 31, 87 S.Ct. 1926; see also Gilbert v. California, supra, 388 U.S. 263, 272, 87 S.Ct. 1951; Murphy v. Waterfront Comm., 378 U.S. 52, 79, fn. 18, 84 S.Ct. 1594, 12 L.Ed.2d 678; and see Nardone v. United States, 308 U.S. 338, 341–342, 60 S.Ct. 266, 84 L.Ed. 307.) As indicated in Nardone, involving a parallel situation, the preliminary factual determination is for the trial judge in the exercise of ‘a well-established range of judicial discretion, subject to appropriate review on appeal, * * *’ (P. 342, 60 S.Ct. p. 268; see People v. Schader, 62 Cal.2d 716, 727–728, 44 Cal.Rptr. 193, 401 P.2d 665; People v. McGee, 238 Cal.App.2d 203, 206–207, 47 Cal.Rptr. 640; People v. Douglas, supra, 259 Cal.App.2d 694, 697–698, 66 Cal.Rptr. 492.)

As indicated in Wade, in reviewing the propriety of this preliminary factual determination of the trial court, the appellate court is to be guided by the test which requires a determination whether the in-court identification has been achieved by exploitation of the pretrial illegal identification or whether instead, such identification was purged of the taint by means which are sufficiently distinguishable. In applying this test, Wade sets out various factors that should be considered, such as: ‘* * * the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.’ and ‘* * * those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.’ (388 U.S. p. 241, 87 S.Ct. p. 1940.)

Applying these factors to the instant case, we note the evidence that Mrs. McCauley was very close to the robber and his face was quite near hers during the time he was attempting to divest her of the purse; that less than two hours elapsed between the robbery and the identification at the police station; that prior to such identification Mrs. McCauley did not identify any other person as the robber although she viewed other persons and examined photographs from police records; that she did not identify a picture of defendant before the viewing; that she did not fail to identify defendant on a prior occasion but actually identified him at the preliminary hearing although he was not sitting at the counsel table, was not the only Negro youth present and also wore his hair in a different fashion than at the time of the crime.

With respect to the question whether there was any discrepancy between the pretrial lineup description and the actual description, we note that the actual details of Mrs. McCauley's pre-lineup description are not disclosed in the record. At the trial it was developed on cross-examination that at the time she reported the incident to the police she had stated to them that the robber ‘had something close about his neck, such as a turtleneck.’ The cross-examination also disclosed that at the preliminary hearing Mrs. McCauley had described the robber as wearing ‘dark clothes.’ The record does disclose that when defendant was viewed by Mrs. McCauley, he wore a black cardigan-type sweater with a white collar pulled out over the sweater, and had on dark pants. The dark pants were described in a police report as ‘gray pants.’ Other police witnesses testified that when defendant was at the police station he wore ‘dark pants.’ Defendant also asserts that he had a mustache at the time of the police station identification and that when Mrs. McCauley reported the incident to the police she did not tell the police that the robber had a mustache. The record, however, does not disclose that defendant had a mustache at the time of the viewing but only that he did at the time of the trial.7 The only apparent discrepancy, therefore, between the pre-lineup description and defendant's description is the reference to the fact that the robber had something around his neck like a turtleneck, while at the viewing defendant had a white collar.

Applying the test indicated by Wade on the record before us, we cannot say that the trial court abused its discretion in ruling that the in-court identification had an independent origin, nor can we say that the evidence presented by the People was not of a clear and convincing nature. The credibility of Mrs. McCauley and her demeanor on the witness stand were matters primarily directed to the trial judge, as was the weight and effect of the discrepancy hereinabove discussed. Although the unequivocal courtroom identification8 of defendant by Mrs. McCauley would not, standing by itself, satisfy the proper test to be applied in these situations, this unequivocal identification, when coupled with the other evidence on the validity of such identification, meets the requirement that the trial court must be satisfied by ‘clear and convincing evidence’ that the in-court identification was based on observations other than the pretrial identification. (See People v. Caruso, 68 Cal.2d 183, 189–190, 65 Cal.Rptr. 336, 436 P.2d 336.)

The Fingerprints

Finally, defendant contends that he was denied due process of law and his right to a fair trial because the prosecution did not send the two fingerprints to an agency which might have identified them. Apparently defendant equates this failure to act with the wilful suppression of evidence. However, he overlooks the evidence which indicates that the prints were probably unreadable, and he also overlooks the fact that the purse had been handled by a number of persons after it was taken by the culprit. In People v. Noisey, 265 A.C.A. 605, 71 Cal.Rptr. 339, the defendant argued that the failure to lift any prints at the scene of the crime was a wilful suppression of evidence. The court did not agree and held that ‘The mere fact investigating officers do not pursue every possible means of investigation does not, standing alone, constitute a denial of due process or suppression of evidence. A failure to look for evidence is quite different from suppressing known evidence, but in either case the defendant must demonstrate that he has been prejudiced thereby.’ (P. 612, 71 Cal.Rptr. p. 344.) Here defendant has made no attempt to show any prejudice resulting from the failure of the prosecution to do anything with the fingerprints in question.

The judgment is affirmed.

I dissent.

I believe that the majority correctly conclude that Martin's police station confrontation was violative of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. They have also correctly stated the rule of Wade, supra, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that such a violation does not require reversal, if the trial court ascertained by ‘clear and convincing evidence’ that the in-court identification had an origin independent of the unconstitutional lineup. However, because of the constitutional issue presented, we are required to make an independent analysis of the record to determine if the required high standard of evidence exists.

From my reading of the record I am impelled to conclude that the evidence supporting an origin, independent of the showup, of Mrs. McCauley's in-court identification of Martin, falls far short of the ‘clear and convincing’ test.

Martin's conviction rests entirely upon wholly uncorroborated testimony of Mrs. McCauley. At the trial she testified that there was no doubt in her mind that he was the man who took her purse; she said her identification was based upon what happened at the church.

Following the assault, in her report to the police, Mrs. McCauley descrided her assailant as a male Negro, 5′7″–5′9″ tall, dressed all in dark clothing, with a black sweater which she described as a ‘turtleneck.’ One and one-half hours later, police officers stopped an automobile containing three Negroes for the sole reason that one of the occupants answered Mrs. McCauley's description: ‘black sweater and so forth, processed hair and height and all that.’ That occupant was defendant Martin, who was wearing a plain, open neck, ‘buttoned up the front type of cardigan sweater’ over a white sport shirt with stripes on it. He wore dark grey trousers. His statement that he was 6′ 1″‘ tall went unchecked and unchallenged at the trial.

Soon after the arrest, Mrs. McCauley went to a police station where, through a ‘one way mirror,’ she saw Martin alone in the company of the arresting officer. A policewoman, then with the victim, reported in writing, ‘Mrs. McCauley was very nervous and upset, and stated that although the subject looked like the responsible, she could not definitely state Martin was the responsible.’ Later, on the witness stand, the lady police officer stated that those were not the exact words. She testified: ‘Her words, no. She said, ‘He looks like the responsible, but I cannot * * *’ I am quoting her words, ‘* * * I cannot swear that he is the man.’' Asked, ‘Did she tell you at any time she was positive this was the man,’ the policewoman answered, ‘There again, back to my original answer, she was positive or ‘I'm positive he is the man, but I cannot swear to it.’' Mrs. McCauley testified that her husband, who happened to be a policeman who had worked on the case, was at her side during the confrontation. Mr. McCauley, however, insisted that he was not there at the time; he therefore could not aid in establishing what was said.

At the police station several hours after the confrontation, Detective-Sergeant Lynch, apparently troubled as to whether he should any longer hold Martin, telephoned the McCauley home. His call was ‘for the purpose of asking her to come back down again to view the defendant.’ She had retired; her husband answered the telephone. Mrs. McCauley testified at the trial: ‘When the phone rang and my husband answered the phone, he turned to me and asked me if I would like to go back down. And I said, ‘It wouldn't do any good, because he is the one.’ I was already sure in my mind; * * * I told him, ‘It wouldn't do any good to go back down.’ So we didn't. And that was what he told him.'

Martin took the witness stand and denied he was the person who committed the robbery. Having done so, he was obliged to admit a prior conviction of two counts of robbery (see Evid.Code, § 788), for which he had served a term in the county jail.

As indicated, United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149, holds that a conviction need not be reversed if the trial court concludes on ‘clear and convincing evidence’ that the in-court identification had an origin independent of a faulty lineup.

Clear and convincing evidence is defined as “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” (See Sheehan v. Sullivan, 126 Cal. 189, 193, 58 P. 543, 544; In re Jost, 117 Cal.App.2d 379, 383, 256 P.2d 71.)

Ordinarily appellate courts are bound by the determination of a trial court on a disputed question of fact. (People v. Newland, 15 Cal.2d 678, 681, 684, 104 P.2d 778.) And it has been held that the question whether evidence is ‘clear and convincing’ is for the trier of fact whose determination on conflicting evidence will not be disturbed on appeal. (Beeler v. American Trust Co., 24 Cal.2d 1, 7, 147 P.2d 583.) Nevertheless, at least where constitutional rights of persons charged with crime are concerned, appellate courts are not altogether impotent when it appears that a trial court has failed to follow guidelines laid down for the consideration of evidence.

In Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, the court was dealing with the question of due process (‘fundamental fairness') in the use of a confession. The court stated (p. 181, 73 S.Ct. p. 1091): ‘Of course, this Court connot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, * * *. It is only miscarriages of such gravity and magnitude that they cannot be expected to happen in an enlightened system of justice, or be tolerated by it if they do, that cause us to intervene to review, in the name of the Federal Constitution, the weight of conflicting evidence to support a decision by a state court.’

Where Wade-Gilbert questions are at issue the appellate court will itself scrutinize ‘the record with respect to the showup to determine whether defendant was denied due process by the part the showup played in his conviction.’ (People v. Feggans, 67 Cal.2d 444, 449, 62 Cal.Rptr. 419, 422, 432 P.2d 21, 24; see also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247; Stovall v. Denno, 388 U.S. 293, 296, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Romero, 272 A.C.A. 40, 50, 77 Cal.Rptr. 175; People v. Bonville, 268 A.C.A. 112, 118, 73 Cal.Rptr. 741; People v. Pettersen, 268 A.C.A. 279, 284, 73 Cal.Rptr. 693; People v. Noisey, 265 A.C.A. 605, 606, 71 Cal.Rptr. 339; People v. Irvin, 264 A.C.A. 881, 894, 70 Cal.Rptr. 892.)

In People v. Bonville, supra, 268 A.C.A. 112, 118, 73 Cal.Rptr. 741 the appellate court undertook to determine whether the record showed ‘clear and convincing’ proof that the defendant's in-court identification was unaffected by a constitutionally tainted lineup. The appellate test applied by People v. Pettersen, supra, 268 A.C.A. 279, 284, 73 Cal.Rptr. 693, 697, was whether the earlier ‘identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification’ at the trial. In People v. Noisey, supra, 265 A.C.A. 605, 607, 71 Cal.Rptr. 339, the Court of Appeal, resolving a similar issue, stated: ‘Giving defendant the benefit of any doubt, in light of the observation of the United States Supreme Court that ‘there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial,’ we review the facts of the case in testing the victim's testimony that his in-court identification of defendant was based upon his recollection of defendant at the scene of the crime and completely independent from the lineup identification. * * *' (Emphasis added.)

We are thus required on this appeal to make our own determination from the record whether Martin was denied due process at his trial. Such a deprivation existed if we find no ‘clear and convincing’ evidence that Mrs. McCauley's incourt identification did not originate in the police station showup, which the majority have found to be constitutionally defective. And in resolving this question we are required to give Martin the benefit of any doubt. (See People v. Noisey, supra.)

At very least, it seems apparent that the identification of Martin is not ‘so clear as to leave no substantial doubt’; nor can it be said to be so ‘strong as to command the unhesitating assent of every reasonable mind.’ The evidence discloses that the man arrested one and one-half hours after the offense was from four to six inches taller and dressed differently than the reported robber. A policewoman, who could have no conceivable reason for a misstatement favoring Martin, in a written report made following the confrontation related that Mrs. McCauley ‘could not definitely state Martin was the responsible.’ She testified to the same effect at the trial. It can reasonably be inferred that the first positive statement of identification was made when Mrs. McCauley, in the early morning hours, refused to get out of bed to take another look at Martin. This and the other evidence we have related combine to cast real doubt upon her courtroom identification.

In my opinion no man should be deprived of his liberty on evidence such as this. Such uncorroborated single eyewitness testimony has often led to convictions of innocent people. The probability of such a result is compounded where, as here, the defendant, in order to testify to his innocence, is obliged to disclose to the jury a previous conviction of felonies. As stated in United States v. Wade, supra, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933: ‘The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.’ And as Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent—not due to the brutalities of ancient criminal procedure.” (See Wade, supra, at p. 228, 87 S.Ct. at p. 1933.)

Such experiences with uncorroborated identifications are not unknown in California and in this district. We may take judicial notice (Evid.Code, § 452, subd. (d)) of recent superior court criminal proceedings in San Francisco (People v. Camargo, No. 63864). Two persons, man and woman—he with a long criminal record—were ‘positively’ identified as the slayers of a motel operator by the victim's wife. After their indictment for murder, the proceedings were abruptly halted when another couple confessed to the crime. Speculation as to the probable outcome of that case, absent the confessions, causes a shudder.

The record of this case strongly suggests to me the probability of a miscarriage of justice. Because of this, and of my conclusion that the pertinent evidence is clearly not ‘sufficiently strong to command the unhesitating assent of every reasonable mind,’ I would reverse the judgment.

FOOTNOTES

1.  Officer Birch also testified that Mrs. McCauley said, ‘Yes, that looks like the man who took my purse.’ The report filed by Officer Birch states: ‘Mrs. McCauley very nervous and upset, and stated that although the subject looked like the responsible, she could not definitely state Martin was the responsible.’

2.  The next day Mrs. McCauley viewed yet another person. This was apparently Anthony Williams, one of the individuals with defendant when he was picked up by police.

3.  It seems that the court denied the motion because the library copy of United States v. Wade, supra, was missing.

4.  The rule of Wade applies only to cases in which lineups took place after June 12, 1967. (Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Feggans, 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21.) The pretrial identification in the present case took place after June 12, 1967.

5.  The record is clear that defendant was not advised of his constitutional rights until more than two hours after the viewing, but it does not disclose the precise time of his arrest or whether he was under arrest when he was identified by Mrs. McCauley. We further note that for the purposes of the motion to strike, the People stipulated that defendant was under arrest when he was identified.

6.  The rule is different as to the admissibility of evidence of the out-of-court identification. If the suspect was denied the right to counsel, a per se exclusionary rule applies to evidence of the lineup itself. (Gilbert v. California, supra, 388 U.S. 263, 272-274, 87 S.Ct. 1951; Rivers v. United States, supra, 400 F.2d 935, 941.) In the instant case the lineup identification was elicited on cross-examination and was, of course, not objected to. These are the same facts as pertain in Wade where the court concluded that ‘the admissibility of evidence of the lineup identification itself is not involved, * * *’ (United States v. Wade, supra, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939.) Throughout the instant case, all objection has been to the admissibility of the in-court identification evidence.

7.  The record discloses the following question and answer in the cross-examination of Mrs. McCauley: ‘Q. Mr. Martin does have a mustache, does he not? A. Yes, but it was thin enough I wouldn't have noticed it.’

8.  In reply to the prosecutor's question, ‘Is your identification today based on what you saw at the police station or what happened over at the church?’ Mrs. McCauley replied, ‘It's based on what happened at the church.’

MOLINARI, Presiding Justice.

SIMS, J., concurs.