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467 P.2d 521

Davis v. State

Court of Criminal Appeals of Oklahoma

Decided April 1, 1970

Court of Criminal Appeals of Oklahoma · decided 1970-04-01

Cited by 19 later decisions — most recently November 1981

19 state decisions

Key passage — most relied on by later courts

““Whenever the prosecution proposes to make eyewitness identification a part of its case, the defense is entitled to know, through disclosure by the prosecution or by evidentiary hearing outside the presence of the jury, the circumstances of any pre-trial identification. If it was one where the court finds that the Sixth Amendment right to counsel existed but was not observed, the prosecution may not, under the per se exclusionary rule enunciated by the Supreme Court in Gilbert , offer such identification as part of its case; and the same rule would appear to be applicable with respect to prosecution evidence of post -Stovall pre-trial identifications found by the court to be violative of due process. “Where the prosecution intends to offer only an in-court identification, the defense may challenge its admissibility. The court should then, on facts elicited outside the presence of the jury, rule upon whether a pre-trial identification by the same eyewitness is violative of due process or the right to counsel. If a violation is found, the court should then decide whether the in-court identification is still admissible because it has an independent source; indeed, it would appear in the interest of expeditious judicial administration for such a ruling to be made in any event. If the judge regards only the in-court identification as admissible, in the trial to the jury thereafter, the defense may, as a matter of trial tactics, decide to bring out the pre-trial confrontation itsel”

quoted by 1 later decision, including State v. Ragonesi

““At the very least there would have to be statement that there has been a pre-trial photographic or lineup identi fication or other type of identification confrontation before the motion for an evidentiary hearing should be entertained; in short, there should be some showing that ‘a Simmons issue is present.’ “At a minimum [the defendant] must establish that there has been pre-trial identification as a predicate for a motion for an evidentiary hearing outside the presence of the jury. Any other rule would mean that whenever courtroom identification testimony is offered the defendant could force an interruption of the trial, whether there is any justification or not and whether his motion is timely or not. Such a rule, so fraught with opportunity for needless and wasteful trial delays, cannnot be countenanced.” Id. at 127, 128.”

quoted by 1 later decision, including State v. Porraro

Relies on United States v. Wade · Simmons v. United States · Clemons v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1970-04-01

View the full empirical analysis of this case →

BUSSEY, Judge.

¶1 Floyd A. Davis, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County for the crime of Robbery with Firearms, was sentenced to serve fifty years in the state penitentiary, and appeals.

¶2 Although there are two assignments of error urged on appeal, it will only be necessary to consider defendant’s assignment that the trial court committed reversible error in refusing to allow the defendant to cross-examine the State’s witnesses concerning the circumstances surrounding the identification of defendant’s photograph prior to the defendant’s arrest and trial. Briefly stated, the facts adduced on the Evidentiary Hearing, outside the presence of the jury, disclosed that two of the State’s witnesses had identified the defendant from photographs shown them by police officers and later identified him in a lineup. At the conclusion of said hearing, the trial court ruled that these witnesses could testify to an in-court identification of the defendant, finding as he did so, that such identification was based on a source independent of the photographs and lineup identifications. Accordingly, in the presence of the jury, these witnesses identified the defendant as the holdup man, but when counsel for the defendant attempted to cross-examine these witnesses with reference to the pre-trial identifications, the trial court sustained an objection to the cross-examination questions.

¶3 The State, while conceding that the court should have permitted the defendant to cross-examine relative to the pre-trial identifications, argues that under the particular circumstances of the instant case, the court’s error in failing to permit it was harmless error. The State further requests that this Court lay down rules for the guidance of the trial courts in future cases.

¶4 We observe that we have repeatedly held and reiterate in this opinion, that it is error for the State to introduce into evidence, in the presence of the jury, *523 the facts and circumstances surrounding a pre-trial identification of the defendant. We further observe that in the event the defendant raises a timely objection to the courtroom identification of the defendant for the reason that it is based on a pretrial identification by photograph or line-up conducted in a manner contrary to the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the trial court should conduct a hearing outside the presence of the jury and determine if the pretrial identification procedure was conducted in accordance with the rule enunciated in United States v. Wade, supra. 1 In the event that the pre-trial identification was not conducted in accordance with Wade, but it is established that the in-court identification can be made from an independent source, then the trial court should permit the State to present the in-court identification.

¶5 While we have heretofore stated the State may not refer to the pre-trial identification of the defendant as a part of its case in chief, the “defense may, as a matter of trial tactics, decide to bring out the pre-trial confrontation itself, hoping it can thus distract from the weight the jury might otherwise accord the in-court identification.” See Clemmons v. United States, 408 F.2d 1230.

¶6 It is readily apparent, in the light of Simmons, that the defendant should be allowed to cross-examine witnesses relative to the pre-trial identification of the defendant whether by photograph or line-up. In Simmons, the court stated, in pertinent part:

“ … the danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error.” [Emphasis added.]

¶7 In the instant case it is clear that the court failed to allow the defendant to cross-examine the State’s witnesses concerning facts and circumstances which had a direct relationship to the courtroom identification of the defendant. Since the weight and credibility to be given the testimony of the witnesses making courtroom identifications is a matter for the jury’s determination, a refusal of the court to allow such cross-examination constitutes error so fundamental as to require reversal.

¶8 For the reasons, above set forth, the judgment and sentence is reversed and remanded for a new trial, consistent with this opinion. Reversed and remanded for a new trial.

BRETT, P. J., and NIX, J., concur.
1

¶9 . Suggestions were made in Thompson v. State, Okl.Cr., 438 P.2d 287, rendered by this Court subsequent to the Wade de-cisión which lay down guidelines for trial courts in applying Wade.

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