¶1dissenting. I do not agree with the majority opinion that the conviction should be reversed in this case.
¶2This was a typical filling station robbery case attended by the additional feature of murder to avoid future identification which is also becoming typical in robbery cases. In the case at bar three individuals drove into a filling station attended by Mr. Elmore and his wife and while one of them waited in their automobile the other two confronted Mr. and Mrs. Elmore with rifles and emptied the cash register without difficulty and without resistance. One of the robbers took Mr. Elmore’s .38 caliber revolver from near the cash register. They herded the Elmores into a restroom and while one of them barred the door with a rifle, the other one executed Mrs. Elmore by shooting her through the chest and through the head with the revolver. They then attempted to execute Mr. Elmore, the only remaining eyewitness, by shooting him with the revolver but his gunshot wounds were not fatal. The robbers then drove away with ample reason to believe there would be no living person who could identify them if they were ever apprehended; and, that their constitutional rights, if properly pleaded and presented by court appointed counsel, would fully protect and insulate them against possible conviction on circumstantial evidence.
¶3Apparently two of the robbers, Orr and Coleman, were apprehended in Missouri and made tape recorded confessions in which they implicated the appellant Sims as the third member of the trio. Sims was taken into custody and after hearing the recorded statements of the other two, he apparently also made a recorded confession, but his confession was suppressed as involuntary by the trial court partially because the interrogation continued after Sims, in effect, said he had nothing to say. At the in-chambers “-Drarco” hearing on the motion to suppress, Sims admitted that he was with Orr and Coleman when the crimes were committed. As abstracted in appellant’s brief, Sims said: “Yes Freddie Orr and Charles Coleman were present with me at the time of this killing and I was present with them.” This statement was made outside the hearing of the jury and I only mention it here as preface for my opinion that Mr. Elmore did not identify the wrong man at the trial or in the line-up.
¶4I do not suggest that the trial court erred in suppressing Sims’ confession. Neither does the majority or anyone else suggest that Mr. Elmore identified the wrong man. Sims was placed in a line-up and was readily identified by the surviving victim. The majority reverses this case, and thereby nullifies the in-court identification by the only eyewitness and surviving victim of the crime, simply because the appellant’s court-appointed attorney was not notified of the time and place of the line-up. There is no question in my mind that Mr. Elmore made his in-court identification of Sims from the ordeal he experienced when his wife was murdered and he was wounded under the inside lights of his filling station rather than from seeing Sims in a line-up.
¶5Mr. Elmore said he was not seeking the life of the appellant Sims because Sims was not the one who killed his wife. He said that the first time he saw Sims he was standing by the office door in his filling station with a rifle in his hands. He said another person was also in the main part of the filling station and that he likewise had a rifle. He then testified in part as follows:
“Q. Where in the station was your wife shot and killed?
A. In the bathroom; the men’s bathroom.
Q. Were you present there?
A. Yes, sir.
Q. And was this defendant present there?
A. Yes, sir.
Q. Where?
A. Right at the door, sir.
Q. What was he carrying at that time?
A. He was carrying a rifle.
Q. Did he himself shoot you or your wife?
A. He did not shoot my wife.
Q. The other man did?
A. The other man did.
Q. What did he shoot her with?
A. Sir?
Q. Whát did he shoot her with?
A. A .38 calibre pistol.
Q. Do you know where the pistol came from?
A. It was my pistol. It came from the side of the cash register or out of the drawer there.
Q. Do you know how many shots were fired?
A. Five shots.
Q. In the restroom?
A. In the restroom, yes, sir.”
¶6Mr. Elmore said it was between .11:00 and 12:00 o’clock at night when the men stopped at his filling station. He said he did not pay a great deal of attention to them until after he had serviced a car and it had left. He said he then went back into the filling station; that one of the men was at the telephone, and he then testified as follows:
“A. . . . [0]ne was sitting on the water fountain and he throwed a rifle on me and said ‘Turn out your lights just like you’re closing up.’
Q. And was that this defendant?
A. No, sir, it was another one.
Q. And did you do that?
A. Yes, sir.
Q. Did you turn off your lights just like you were closing up?
A. Yes, sir.
Q. Then what happened?
A. We opened the cash register and told them to take what they wanted and don’t hurt us.
Q. Did you open your cash register?
A. My wife did.
Q. And did you or your wife tell this defendant, take what you want, and don’t hurt you?
A. Yes, sir.
Q. Did they say anything before the shooting?
A. They said that we would identify them.
Q. Said what?
A. They said that we would identify them.
Q. Did this defendant make that statement to you?
A. No, sir, the other one made that statement to me.
Q. Then what happened?
A. They got the money and told us to go in the bathroom, and tried to put us in the same coat.
Q. Tried what now?
A. Tried to put us in the same coat together.
Q. Coat ?
A. Yes, sir.
Q. I don’t understand what you are talking about.
A. Just a coat like you wear, an old army jacket, 1 believe.
Q. They wanted to put both you and your wife in that?
A. Yes, sir.
Q. You mean put both your arms in the same coat?
A. Yes, sir.
Q. What happened then?
A. They shot my wife and I grabbed her and let her down to the floor.
Q. Who shot her?
A. The other guy that was with him. I don’t know his name.
Q. But he shot your wife and you grabbed her?
A. And I grabbed her and let her down.
Q. Then what happened?
A. The second shot fired, he was still shooting at her. The third shot hit me, and went in right there and came out there (indicating). I bent over.
Q. Were you shot more than once?
A. I was shot three times, yes, sir.
Q. When the shooting was going on, where was this defendant standing?
A. He was standing in the bathroom door to keep us in there.
Q. You think he was standing there to keep you from running out of the room?
A. Yes, sir.
Q. How close to you and your wife was he, holding his rifle to hold you in there?
A- I would say at least three feet.”
¶7It is obvious from Mr. Elmore’s testimony on direct examination the he had ample opportunity to see his assailants.
¶8The basis of Mr. Elmore’s identification of Sims was clearly brought out on his cross-examination. On cross-examination Mr. Elmore testified in part as follows:
“Q. Mr. Elmore, the testimony that you have just given indicates that you identified positively that Danny Sims took part in that night of events?
A. Yes, sir.
Q. And the testimony that you have given here before this jury is what we would consider highly emotional?
A. Yes, sir.
Q. This is something I would like to express my sincere sympathy for you in your tragic loss. What we are here for, as you will understand, is the most positive proof in order that we may achieve justice. Is that correct?
A. That is correct.
Q. And we want to be positive beyond any doubt that no mistake has been made. Is that correct?
A. That is correct.
Q. Are you telling me and telling this jury that you are positive you have not made a mistake?
A. I am telling you that that is the man, so God be my helper.
… #
A. I don’t want this man’s life. He didn’t kill my wife. This man didn’t.
…
Q. ... Tell us again how you noticed this particular individual there at your station?
A. When a man has come in to rob you, you look at him good. When they say that you will identify them if they didn’t hurt you, you look at them better.
Q. I believe you testified on direct examination that when they first came in, they used the phone?
A. Yes, sir.
Q. So you didn’t know at that point that they were going to rob you?
A. No, sir.
Q. Then how can you tell the jury you started making such a good identification of them?
A. Because when they throwed rifles on me, I looked at them.
Q,. You looked at them instead of the rifles?
A. Yes, sir.
Q. I assume you were in fear of your life? Is that correct?
A. I said I looked at them real good.
Q.. And you stood in open court and you looked around the entire courtroom and picked out Danny Sims as one man in your station that night with a rifle?
A. Yes, sir.
…
Q. How was his hair? Long or short?
A. His hair was bushed out more than it is now.
Q. How was he dressed?
A. I don’t recall his dress because I was looking straight in the face.
Q. Did you look at the other two?
A. No, sir, one didn’t get out of the car. I didn’t see him.
Q Q. One didn’t get out of the car?
A. A. One didn’t get out of the car.
Q. What did the other one look like?
A. The other had a large neck, a little darker complected than Danny Sims; a little higher; a little heavier.
Q,. I believe you stated that on direct examination that they turned the lights out? Is that right?
A. They turned part of the lights out, yes, sir.
Q. What part did they turn out?
A. All my outside lights. We left the inside lights on; just like I was closing up.
Q. They didn’t turn the inside lights off?
A. No, sir.
Q. You are positive of that?
A. I am sure of it.
Q. Was the bathroom light on?
A. Yes, sir.”
¶9Mr. Elmore was then questioned by the defense counsel as to the line-up procedure. He said that in the line-up there were five men all wearing white shirts, and that he recognized the appellant Sims as soon as he saw him and did not pay too much attention to the other individuals in the line-up. He was asked to describe the other individuals in the line-up and he said:
“A. After I saw Danny, I didn’t look at the rest of them. I turned and walked out.
Q. You didn’t look at them at all?
A. I knowed him at the time I saw him.”
¶10Mr. Elmore positively and emphatically identified Sims at the trial as the robber who confronted him with the rifle and the one who barred the restroom door while his wife was being executed with his own revolver and with which he was also shot. The fact that Mr. Elmore exonerated Sims as the one who actually did the shooting adds credit to his identification. The line-up identification was not mentioned by the prosecution at the trial and although it was mentioned by defense counsel, there was nothing whatever to suggest that the prosecuting witness Mr. Elmore may have identified the wrong person at the line-up or at the trial, or that his in-court identification was based at all on his line-up observation.
¶11Certainly the police officers should be censored for not advising Sims’ attorney of the time and place of the intended line-up, but there is nothing to indicate the line-up was improperly conducted or in any. way suggestive. To reverse this case and thereby nullify the in-court identification by the only living victim who looked his assailant in the face while the crime was being committed, simply because Sims’ attorney was not called to attend the line-up is, in my opinion, putting form above substance, under the evidence in this case. Certainly this court should be concerned with whether the prosecuting witness identified the wrong man, but to reverse this case because of the dereliction of the police officers in not advising the appellant’s attorney of the intended line-up is to reverse the conviction because of harmless error.
¶12I am not unmindful of the United States Supreme Court decision in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). In the trial of that case two bank employees, who had been robbed, when asked on direct examination if the robber was in the courtroom, simply pointed to Wade. The prior line-up identification without knowledge of Wade’s attorney was then elicited from both employees on cross-examination, and the Supreme Court disposed of that case as follows:
“We, therefore, think the appropriate procedure to be followed is to vacate the conviction to determine whether the in-court identification had an independent source, or whether in any event, the introduction of the evidence was harmless error.”
¶13We have no record of what occurred at the retrial of Wade if he was again brought to trial. Perhaps the two bank employees testified on retrial that they would never forget the look on Wade’s face or the expression in his eyes when he said, “Hand over the money or I will kill you,” and that their in-court identification was based on such independent face-to-face encounter, rather than on seeing him again in the police line-up. If such was the testimony at retrial, in all probability Wade was again convicted. On the other hand it is possible the prosecuting witnesses may have testified at the retrial as they apparently did at the first trial. “We saw the defendant at a police line-up — he is now in the courtroom and that is the man.”
¶14It is obvious to me that the decision in Wade was left open for just such logical procedure. The “independent source” referred to in Wade could only have meant “independent of the line-up identification.” Surely the Supreme Court did not remand the Wade case to be retried in a vacuum, neither did it remand Wade for further inquiry as to the procedure at the line-up identification. It remanded Wade for further inquiry as to the in-court identification and whether it was from some source independent of the line-up identification.
¶15Also in Gilbert v. California, 388 U.S. 263, the Supreme Court held that the admission of in-court identifications without first determining that they were of independent origin and not tainted by an illegal line-up was constitutional error, but in that case the court also said:
“However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.”
¶16I am thoroughly convinced that in the case at bar there was ample evidence of pre-trial identification of Sims totally independent of the line-up identification, and that the evidence already exists in this case that was required by the Supreme Court upon remand in Wade and Gilbert.
¶17The majority point out that Mr. Elmore had seen the appellant Sims at other times during Sims’ pre-trial incarceration and indicate that Elmore might have been influenced thereby to some extent in his in-court identification. Surely the majority would not void an in-court identification if the victim of a crime should by chance see the accused between the commission of the crime and the trial of the accused.
¶18I am opposed to extending the requirements of Wade and Gilbert one bit beyond the requirements therein set out and as I perceive the plain language of those opinions to state. If Elmore’s testimony, supra, did not reveal an independent source for his in-court identification, I cannot conceive of what could possibly become an independent source under the facts in this case. If the evidence in the case at bar does not meet “constitutional muster” under Wade and Gilbert, I think the court where that phrase was coined should say so in language better defining what would constitute an independent source.
¶19Of course the United States Supreme Court will have no opportunity to better define “independent source” so long as state appellate courts conclude that it means something other than face-to-face confrontation at the commission of the crime and remand the cases to the trial court for additional inquiry into the validity of line-up identifications, or reverse and dismiss because of improper or tainted in-court identifications.
¶20Sims personally and affirmatively elected to not testify in the case at bar and it is obvious to me from the clear and convincing evidence, that Mr. Elmore’s in-court identification of Sims was based entirely on his observation of the accused during the commission of the crimes and was not tainted in the slightest degree by the line-up procedure. It is furthermore my conclusion, that the failure to advise appellant’s attorney when the line-up was to be conducted, was harmless error under the totality of the circumstances and evidence in this case.
¶21I would affirm.