OCR Text |
Show PAGE TUESDAY, DKCKMHKK THE DAILY RECORD FOUR I VBR, DLW , The court discussed such factors as the necessity of using photographs, i.e. , the perpetrator was still at large; the opportunity the witness had to observe the perpetrator; the interim between the event and the photo graphic identification by the witness. No. 13269 M Reid Russell FILED November 29, 1973 v. Carl Volberding, Defendant and Appellant. 1, 1U7S In The Supreme Court Of The State Of Utah State of Utah, Plainiiii and Respondent, 1 Florence & Hutch Ison, John Blair Hutchinson, 818- - L. M. Cummings, Clerk In the instant case, the two witnesses observed the defendant for approximately one hour and conversed with him. The photographic display was made the following day, while the memories of the witnesses were still fresh. There was justification to use. this proetdure, since defendant had not been apprehended. The foregoing factual circumstances concerning defendant's identification do not establish a denial of due process of law. 26th St. Ogden 84401 CALLISTER. Chief Justice; Defendant appeals lrom his conviction in a trial before the court of pttfy larceny. Defendant was accused of grand larceny but was found guilty ot the lesser and included offense; on appeal he seeks to have his conviction set asid-'- . Defendant further contends that his right to conduct a meaningful was impaired by the unavailability of the photographic display at trial. Defendant cites United States v. Wade2 to sustain his contention. In Kirby v. Illinois the court explained that the Gilbert-Wad- e ruling was premised on the constitutional right to counsel (the 6th and 14th Amendments), which attaches only at or after the time that adversary, judicial proceedings have been initiated against the accused. The court declined to import into a routine police investigation an absolute constitutional right which is applicable only after the onset of formal prosecutorial proceedings. Defendant has attempted to cast the alleged error on the ground that he was denied a fair trial and due process of law by the curtailof witnesses. In fact, and ment of his right of effective in effect, his claim is that he was entitled to the presence of counsel at the time the police presented the photographs during the investigative stage of the proceedings; Kirby v. Illinois, specifically disclaims such right. on cross-examinati- In tl. early hours of October 3, 1971, defendant entered an establishment known as Ray's Club in Ogden, Utah. He consumed two beers and played the pin ball machine. He requested that the bartender, Ray Folkman, give him a ride. Mr. Folkman agreed that he would do so, after he had closed the bar. Mr. Folkman's friend, Connie Jorgensen was also present. While Mr. Folkman was performing his responsibilities in connection with closing the establishment, Mrs. Jorgensen observed defendant grab money from the bar and run from the club. She summoned Mr. Folkman, who pursued defendant and recovered the money, although defendant effected an escape. The following day the police exhibited six to eight photographs to the witnesses, who separately identified thi defendant. Thereafter, "defendant was arrested for grand larceny. ' cross-examinati- on Defendant further contends that thre was insufficient evidence to an essential element of the crime of larceny, namely, that the money prove stolen from the bar was the "personal property of another, " Section U. C.A. 1953. Defendant claims there was no testimony as to the "ownership" of the money. This contention is without merit. The information charged that the money was the property of Ray's Club, and tho testimony indicated that it was removed from the custody of an employee of this establishment by defendant, who thereupon fled. The employee pursued defendant and regained custody of the money. One who steals property has no standing to question the title of anyone in lawful possession from whom it was taken. trial, defense counsel demanded that the prosecution produce thi- display of photographs so that the court could determine whether the composition of the group was so unduly suggestive as to lead to a liklihood of misidentification. (Defense counsel had previously sought a motion to suppress the identification of defendant at the trial by the witnesses but, since the matter was to be tried by the court, the motion was determined at the trial. ) The trial court ruled the identification testimony of the witnesses was admissible. At the 76-38-- - I The investigating police officer testified that he procured the photothe display from the Weber County Sheriff's Office; the personnel for graphs thereof made the' selection of the photographs used. After the witnesses made the identification, the photos were returned to the Sheriff's files and the exact composition of the group could not be recalled and reproduced for the examination of defense counsel and the trial court. 1, The judgment of the district court is affirmed. WE CONCUR: Defendant cites Simmons v. United States, wherein the court held that conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only it the photographic identification procedure was so impermissibly suggesif tive as to give risn to a very substantial liklihood of irreparable ication. Such a claim must be evaluated in light of the totality of the circumstances. Defendant argues that such an evaluation cannot be made without reproduction of the display. Such a contention is without merit, particularly in light of the circumstances discussed in Simmons, where the photographs displayed to witnesses were not produced to the court. a F. Henri Henriod, Justice A. H. Ellett, Justice J. Allan Crockett, Justice R. L. Tuckett, Justice mis-ident- 1. 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (19b7). 3. 406 U.S. 682, 32 L. Ed. 2d 41 1, 92 S. Ct. 1877 (1972). 4. State v. Carlsen, 25 Utah 2d 305, 309,480 P. 2d 736 (1971). 2. 390 U.S. 377, 19 L. Ed. 2d 1244, 88 S.Ct. 967 (1968). Third District Court Calendar ?039co - Patsy Johnson vs (jury) David L. Rees & Wendell frank Karras 200760 Red-E-M- Sr ix 211550 - first M. 209437 Assoc, Gee. Bank 215037 V t - - Burton P. Ririe, vs (jury) 193694 A. Stockholm, etux iJ. jlxcjcs Glen fuller Merrill Anderson b. G. 211329 - Interstate Collect, - Valley Bank & Tr. 0 Neill, Tr. & James Brown - Beneficial Finance vs Glen Crowther R. 210000 J. Stead Iyle Palmer, etux Burton Howard Tuesday, December 11, 1973 ams vs Thomas - Leger Const. Co. Barbara Lefavor Thos. Vuyk & David White 20ci 03 - Western Bonded Coll, vs Marion Janis Franklin T. Anderson & John Ad- (jury) - & M. vs vs Allred Frank Allen Jeffery Fillmore PeterEnnenga 211203 A. Sv.an & Joseph McCarthy 207O07 - Stewart B. Mack ay vs Peterson Gary T. Lomax vs Donald F. Winters & J. McCoy John Anderson vs Vfca. Brian Barnard eri-s- en vs Grant Tuit Robert Howell h A.Jeppesen , Craig & W. W. & W. B. Gardner Brent Moss & W. Wadsworth, Merlin Lybbert & Ray Christ Ilar.son - Pugsley 215037 - Irma Heal Rex H. D. Eerm-e- tt vs Jay Joseph Bullock Gary E. Atkin, R. Dibblee and 20 vs Larry L. Flynn December 10, 1973 Monday, 20833B ' - Sheldon Friedman vs Ida L. Miller Ifrberg & Jay Jensen Bonneville Cr.Corp vs (Jury) Clarence M. Wilson Robert Ryberg & Jay Jensen 206372 - Western International vs 208338 -- Leo Mosher Milo Marsden & M. Beuling 209015 - Standard Supply R. Howell 203332 - vs Alf Eric 01afson,III Gary Gale Carl F. Hummel, IV Jerry Nelson Wednesday, December 12,1973 208916 - BurtonP.Ririe vs KEY BUSINESS MACHINES INC. P.O. Bos 332 21 Kahay Avanue SaHUkoCKy, Utah 14110 Talaphona (801) - 032-001- 3 Stockdale & Co. Allen Larson & A. Tibbals 208837 - Faul Tracy, etal vs Medical Integrated Brent Moss & Lee Bishop 209290 - John H. Cordingley vs Wm. Loud,dba Wm. Stegall & Park Snoot 209523 - Gloria K.Stowell vs(jury) Phil Fishier Richard A. Edwards Gifford Price & L.E.Midgley 195173 - J. Wesley Parker vs Aaron M.Matson Alan K.Jeppesen & P.K. Nelson 210093 - Uni co, Inc. vs Trans-Weste- rn Stephen Farr & P.Cotro-Man- es - Joyce Bingham Ins. 210903 3. J. 09507 - J. James A. Thurber 215812 - Mary Ellen Gabrielsen vs SLC Bd of Education D. Sanford Jorgensen Thursday, December 13, 1973 209169 -- Alan C. Jensen vs United Campgrounds Nolan Olsen & Macoy McMurray 200124 - STP Corp vs Firebrand, Inc. A. Thurber 212100 - & P.Cotro-Man- James es - & L.Rlch vs Willis Rupp 210641 Blonqulst - Richard vs K. Montoya Co Washington Jennings & Pete Vlahos 1 I Friday, December 14. 1973 213260 - Martin G. Brixen vs J. Vertin Vernon Glenn vs Alan Metos n, Craig Peterson R.Meredlth Union Pac. R. R. John Black & S.Goodsell 212166 - General Credit & S.Han-se- Jr. vs D. Orchard & S. Ward, R. Campbell James D. Fife, etux Knowlton & Don Blackham 207964 - Julia Abbatao vs Stephen vs Fred Henkel Richard J.Leedy & R.C. Barker 207252 - St of Utah, lid Ccmm vs Boise Cascade Bldg H. Glen E. Davies & G. Sundry 211638 - bonald L. Shepherd Thomas B. Stubbs Long vs , Inc . Wash-ArMa- tic etal Boyd C. Davis David Day & C.Balmforth 210270 - George Drakos,dba Delmar L, Larsen R.VanSclver & - Keith L. Ronald vs 207823 Spratling lybbert Dugger Walter Plub, Leonard Burnlngham 209333 - Clifford Jensen vs Baker M. & M. - Gerald vs Ronald 213543 Robert Brandt & vs (jury) Maxfield Cox Corp, vs (jury) Vickie D. Rigby Searle Sinclair Wanda Woodrow White 210784 Geo & Robert R. Norton vs Statewide Welding Hatch & D. Condi e -- 210078 vs W. W, & W.B. Gardner Brent Moss & W, Wadsworth, M. Lybbert & Ray Christensen 207081- - Wildlife Film Co. - State Farm"Mut.Autd vs (jury) Robert L. Reedy vs (jury) & vs (jury) S. L. Transportation B. Tanner & James Clegg 201727 Glen Hanni Roger Cutler 205119 - Linda Todd & & F, Allred Sanford Jorgensen 205574 - Pax, Ltd. , vs R. A. Ridges Francis Nielson & D. R. Morrill 207872 - Burel J. Littlefield vs Waldo L. Littlefield Gary Atkin & Jos Fratto |