STATE v. MATTHEWS

[6] BOLIN, Justice.

Wilbert Matthews was charged by bill of information with armed robbery of a grocery store proprietor and was convicted after a jury trial. A sentence of fifty years' imprisonment at hard labor was imposed by the trial court. Defendant seeks reversal relying on ten bills of exceptions reserved to various rulings of the trial court. We affirm.

On February 22, 1971, two men entered the victim's business establishment. Each made a purchase and exited the store but remained on the sidewalk in the immediate vicinity for a few minutes. After a short time elapsed the two men reentered the store, aimed guns at the proprietor and his wife, and demanded money. The perpetrator identified as the defendant remained at the cash register with the proprietor's wife while the other armed individual accompanied the victim to the rear living quarters of the structure to obtain more money. According to the testimony of the victim, the two men left the store and entered a taxi, in which they fled from the vicinity of the crime.

Approximately seven months later, a female who had patronized the victims' store on the day of the robbery approached the grocer and his wife, claiming that she had seen the two men who perpetrated the robbery and knew their identities. The woman gave the grocer the names and nicknames of the two men, which names the proprietor reported to the police. Photographs of the two men obtained from the police files, along with pictures of other individuals were subsequently viewed by the victim and his wife. The defendant and the individual jointly charged in the bill of information were identified from these photographs. Some weeks later, plans to conduct a line-up in which these two individuals were to appear were thwarted. Subsequently, a photograph of a line-up conducted about one month after the commission of this offense, in which both defendant and the person charged with him appeared and in which they were the suspects sought to be identified in connection with another offense, was shown to the victim and his wife. Again, both parties identified the defendant and the man with whom he was charged. Subsequent to these identifications this case came on for trial. Shortly before trial commenced the State elected to sever the jointly charged persons and proceeded against defendant, whose conviction followed after the trial on the merits.

BILL OF EXCEPTIONS NO. 1

This bill is at leveled at the trial court's denial of a defense motion to suppress evidence. The only motion to suppress appearing in the record addresses itself exclusively to efforts to obtain suppression of pre-trial identification of defendant and exclusion of "all testimony or other evidence relating thereto." Defendant in brief avers defense counsel intended that this bill apply to the motion to suppress evidence filed in previous cases, which cases are not further identified in brief or at any point in the record. A review of the record reveals there was no motion seeking suppression of physical evidence in the instant case. The only issue before us, therefore, is the propriety of the trial court's action in denying defendant's motion to suppress the pre-trial identification of defendant.

The formal motion to suppress the identification urges that the failure of police to allow defendant to be represented by counsel at the pre-trial identification fatally taints that identification and mandates its suppression. Cited in support of this contention are Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The decisions in Gilbert and Wade are inapposite. Those cases involve pre-trial line-up identification and are not concerned with photographic identification. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) leads us to conclude defendant's instant claim lacks merit. In Ash the Court concluded a criminal defendant does not have a constitutional right to have counsel present at photographic displays conducted by the government for the purpose of attempting to secure an identification of the perpetrator of a crime. The pre-trial identification sought to be suppressed in the present case was a photographic identification and, therefore, comes within the purview of the Ash holding. A review of the hearing on the motion to suppress the identification fails to reveal suggestiveness or other impermissible procedure in connection with the photographic identification. Indeed, no such illegal procedure is suggested.

This bill of exceptions lacks merit.

BILL OF EXCEPTIONS NO. 2

During the trial on the merits, the victim, in response to questions of defense counsel, sought to explain an inconsistency between his trial testimony and testimony given a day earlier at the hearing on the motion to suppress the pre-trial identification. During the pre-trial hearing, the victim had testified that he had been unable to identify either of the men who robbed him from photographs he had viewed. At trial, the victim claimed he had identified both the defendant and the other robber. On cross-examination, defense counsel sought to probe this inconsistency, and asked whether the witness had in fact stated on the earlier occasion that he had been unable to identify anyone from the photographs exhibited to him. In the course of explaining the inconsistency the witness stated he was confused with another incident and mentioned his inability to identify anyone from photographs occurred at a time when he visited the district attorney's office. He then stated, again with reference to the occasion upon which he visited the district attorney's office, "* * * I also had to take a lie detector test. * * *" Defendant objected to the witness' reference to a lie detector test, whereupon the trial court reacted favorably to defendant's objection by admonishing the jury to disregard any remarks concerning a lie detector test. Remarking he felt the admonition inadequate to protect the rights of his client, defense counsel requested a mistrial, which the trial court refused to grant.

In brief defendant argues there was some doubt a robbery occurred at all and that the reference to a lie detector test could only lead the jury to infer the victim successfully demonstrated to the lie detector examiner that a robbery had occurred. This statement, defendant contends, severely prejudiced him.

The Court has reviewed the record and is unable to find any indication there was doubt a robbery had taken place or that the witness' reference to a lie detector test invariably creates an inference that the victim successfully established to the satisfaction of the authorities a robbery had occurred. The fact that the reference does not compel such an inference is clearly demonstrated by the colloquy within which the reference occurred.

As noted by the trial court in its per curiam to this bill of exceptions, the denial of the mistrial is proper under La.C.Cr.P. art. 770, which sets forth the grounds which render the declaration of a mistrial mandatory. Moreover, the procedure for admonition set forth in La.C.Cr.P. art. 771 was properly followed in this instance. After a review of the record and consideration of defendant's arguments in connection with this bill of exceptions, we are not convinced that any prejudice flowed from the witness' gratuitous remark.

BILLS OF EXCEPTIONS NOS. 3, 4, and 5

During the testimony of a police officer the State sought to elicit testimony concerning the officer's attempt to conduct a line-up to determine whether the robbery victim and his wife could identify the defendant and his co-indictee as the perpetrators of the crime. During preliminary questioning the State asked the witness if he had succeeded in his attempt to conduct a line-up, to which question defendant objected on grounds that the inquiry was irrelevant, immaterial and would generate prejudice against the defendant. The objection was overruled and a bill reserved. Thereafter, in response to questions by the State the witness testified he was unsuccessful in his attempt to conduct a line-up which included the defendant and the person charged with him. The attempt was unsuccessful in part because the two men strenuously resisted being removed from the tier to participate in a line-up, "hollering and screaming" their objections. At this point defense counsel again objected, arguing that the testimony was immaterial, irrelevant and highly prejudicial. The trial court's action in overruling the defendant's objection led to the reservation of Bill No. 4. Later in the trial, during the same officer's testimony, defendant reserved Bill No. 5 when the trial court permitted the State to elicit testimony regarding the general procedure for conducting line-ups. The officer who testified he conducted "the majority of line-ups" had not conducted the line-up represented by the photograph which was at that time the subject of trial inquiry.

In essence, defense counsel does no more than reiterate his trial objections of immateriality, irrelevance and resultant prejudice in his appellate brief. In its per curiam to these bills of exceptions the trial court addressed itself to the court's wide discretion in determining the relevancy and materiality of evidence. The judge noted those particular objections are traditionally considered the weakest objection to the admission of evidence, and stated this evidence was considered relevant to show the jury why and under what circumstances there was a failure to conduct a police line-up. A review of pertinent testimony in connection with these bills of exceptions shows that a photograph of a much earlier line-up, in which both defendant and the co-accused appeared, was used to secure the victims' identification in lieu of a physical line-up, because of the circumstances. The photograph of the line-up was introduced into evidence with a caption thereon showing March, 1971 as the date of the line-up. In the instant case defendant did not become a suspect until September, 1971. It appears that the officer's testimony regarding his inability to conduct the lineup and his testimony that this inability led to instructions from a criminal district court judge to use this photograph of an earlier line-up for identification purposes was relevant and material. It tended at least to explain why a picture dated some six months before the authorities suspected the defendant of this crime was used as a means of securing identification of the perpetrators. The trial court did not err in overruling defense counsel's objections which formed the bases of Bills Nos. 3 and 4.

Our review of the record substantiates the defendant's contention in Bill of Exceptions No. 5 that the officer testifying about line-up procedures did not conduct the line-up reflected in the photograph. In spite of this, we find no error in the trial court's ruling which allowed the officer to testify regarding general line-up procedures, in the absence of a defense claim that the general procedures explained to the jury were not actually used in connection with the photographed line-up. In brief defendant once again argues the officer's testimony was irrelevant. In view of defendant's failure to show any prejudicial effect in connection with the officer's testimony acquainting the jury with the routine aspects of line-up procedure, we find no reversible error in the trial court's ruling.

BILL OF EXCEPTIONS NO. 6

This bill was reserved when the trial court sustained the State's objection to the defense counsel's attempt to exhibit to a police officer witness the search warrant he had purportedly executed at the apartment of the defendant, for the stated purpose of determining whether that warrant was the same warrant the officer had executed.

The record indicates that defense counsel's desire to exhibit the warrant to the officer was in no way connected with an attack on the sufficiency of the warrant or the propriety of the search and seizure purportedly conducted pursuant to its authority. Notwithstanding the trial court's urging that counsel state the basis of his attempt to show the warrant to the officer, counsel was unable to establish what he hoped to prove by showing the search warrant was the same. In its per curiam to this bill of exceptions, the trial court maintains that under the circumstances the line of questioning was irrelevant, immaterial and not a matter for the jury's concern. We find no reversible error in this ruling, in view of the fact there was no dispute over the legal sufficiency of the warrant, the search or the seizure.

BILL OF EXCEPTIONS NO. 7

During redirect examination of one of the State's witnesses, defendant objected to a line of inquiry which he claimed should have been explored on direct examination. The court commented that the State could take the witness off the stand and then recall him in order to introduce the desired evidence. When defense counsel commented he believed that would have to be done, the court proceeded to excuse the witness and instructed the State to recall him. The witness was recalled and the defendant objected to this action, arguing that the State should not have the right to recall the witness.

In brief defendant concedes the trial court has wide discretion in recalling witnesses who have previously testified. Additionally, this Court has refused to recognize as error a trial court's action in allowing the scope of redirect examination to exceed the scope of cross-examination, in light of the defendant's statutory right to recross on new matters brought out on redirect examination. La.R.S. 15:281, State v. Jefferson, 284 So.2d 882 (La. 1973).

There is no error presented by this bill of exceptions.

BILL OF EXCEPTIONS NO. 8

During trial, the defense objected to the introduction into evidence of numerous items of tangible evidence, stating the various items had not been connected with defendant. Defense counsel likewise objected to the State's amendment of its verbal description of exhibit S-3, a .22 caliber gun, to include the six live .22 caliber rounds contained therein. This bill of exceptions was reserved to the trial court's overruling of the defendant's objection. On appeal, defendant urges only the impropriety of the admission into evidence of a .38 caliber pistol, arguing it had not been identified as being used either in the robbery for which he was being prosecuted or the robbery referred to at trial to prove system and intent.

At the time defendant entered his objection to the introduction of the tangible evidence he specifically excepted from his objection the .38 caliber pistol, stating, "* * * we would like to object to the introduction of the evidence * * * with the exception of the one .38 caliber pistol, which the statement made did identify as belonging to him." In light of this action on the part of defendant, this bill lacks merit.

BILL OF EXCEPTIONS NO. 9

After the State had rested, defendant called as his first witness the woman whose communication of the identity of defendant and his co-indictee to the victims of the robbery led to defendant's arrest on the charge and the instant prosecution. While questioning the witness the defendant asked whether her husband had written her any letters from Parish Prison, apparently prior to the time that she had identified defendant and his confederate to the robbery victims. The State objected to the defendant's question regarding letters to the witness from her husband in Parish Prison, stating that fact would be immaterial. After removal of the jury, defense counsel stated to the court that he was attempting to show bias on the part of the witness by the attempted line of inquiry. The court rejoined that defendant would have to have evidence to prove bias. Defense counsel replied he felt he could supply that necessary evidence later. The State entered a further objection, arguing that La.R.S. 15:487 prohibits a party from impeaching his own witness unless he has been taken by surprise or unless the witness is hostile, and even then the impeachment must be limited to evidence of prior contradictory statements. After hearing the State's argument the court ruled it would not permit defendant to pursue his line of inquiry, and this bill of exceptions was reserved.

Our review of the record reveals that at the time defendant called the witness to the stand, counsel requested that he be allowed to treat her as a hostile witness and cited as a basis for his request the prior evidence which established she had identified him to the victim. The court indicated that it would require testimony to establish her as an adverse witness and had not yet heard any such testimony. Defense counsel rejoined that he felt sufficient testimony had been given, but stated that if the court did not agree, he could elicit testimony from the witness.

Defendant argues in brief that La.R.S. 15:492 establishes that the legislature wished to grant to litigants the right to establish the bias of witnesses and argues that he had the right to establish her bias, although he called her as a witness, because it was clearly shown that she was a hostile witness, and, hence, subject to impeachment under La.R.S. 15:487.

Assuming that the showing made by defendant could have warranted declaration of this witness as a hostile witness within the meaning of La.R.S. 15:487, and further assuming that the trial court's action in foreclosing defendant's inquiry; regarding the alleged letter she received from her incarcerated husband curtailed his right to avail himself of the provisions of La.R.S. 15:492 and exhibit the witness' bias, such error does not warrant reversal of the defendant's conviction and sentence. The study of the entire record reveals the witness' true involvement in this case. For example, the inordinate lapse of time between her knowledge of the identity of the perpetrators and her revelation to the victims was established to the extent that her bias was evident to the jury. Considering all of the circumstances of the case, and in view of the fact that the error, if any, does not in our opinion amount to a substantial violation of a constitutional or statutory right and is not prejudicial to defendant's substantial rights, we find the bill lacks merit. La.C.Cr.P. art. 921.

BILL OF EXCEPTIONS NO. 10

Defendant reserved this bill of exceptions when the trial court sustained the State's objection to defendant's attempt to inquire whether the witness whose testimony was the subject of Bill No. 9 was under the influence of any narcotics at the time of the giving of her testimony. The trial court sustained the State's objection, which was based on the premise that the question was yet another attempt by the defendant to impeach his own witness. In accordance with our disposition of the issue presented by Bill of Exceptions No. 9, we do not find that disallowance of this question and the information it sought, if error, is of such magnitude as to require a reversal of the defendant's conviction.

For the foregoing reasons, the defendant's conviction and sentence are affirmed.

DIXON, J., dissents and assigns reasons.

TATE and CALOGERO, JJ., dissent for the reasons assigned by DIXON, J.