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Show PAGE THE DAILY RECORD FOUR TUESDAY, AUGUST 4, 1970 Continued from Page 3) SUPREME COURT DECISIONS IlENRIOD, Justice; (Dissenting) during trial. That procedure at least allows decision of the constitutional issue before fatally prejudicial testimony comes before the jury. . . . respectfully dissent. I think the trial court was disqualified, that McGee's second point on appeal, that: I interest of orderly procedure defense counsel Bhould be admonished to seek an evidentiary hearing to determine the admissibility of identification testimony prior to trial. In the instant action, defense counsel made no objection to the allegedly inadmissible testimony until the prosecution had rested; he should have at least made a motion to strike the testimony of any rules at the conclusion of the witwitness in violation of the Wade-Gilbe- rt In the The trial judge should have disqualified himself on the basis of having been the presiding magistrate at the preliminary hearing and that appellant did not agree as to his sitting as pro tempore judge, ness' testimony. is well taken, since Article VIII, Section 5, of the Utah Constitution, specifically and unequivocally says that: In order to resolve the issues in the instant case, it would be beneficial to review briefly the rulings of the Wade and Gilbert decisions. In these cases, the court held that a court room identification, in fact the fruit of a suspect pretrial identification, was inadmissible, unless the prosecution can identification was establish by clear and convincing evidence that the based upon observations of the suspect other than ti lineup identification. On the other hand, where the admissibility of evidence of the lineup identification itself was involved, the court applied a per so exclusionary rule in order to assure that law enforcement authorities will respect the accused's right to the presence of counsel at the critical lint up, and the Slate was in-co- Any cause in the district court may be tried by a judge pro tempore . . . agreed upon by the parties, or their urt attorneys of record. c Concededly this never was done in the instant case. The judge here also was the city judge that held the preliminary hearing in this case. It was he who bound the defendant over to the District denied the opportunity to show that tne tisnmouv j .id an independent source. The court reasoned that a witness1 testimony oi ins lineup identification will identification on the jury and seriously enhance the impact of his to trial: and, therefore, unless the court fair aggravate the accused's light can declare that such testimony was harmless beyond a r sonanle iloubl, the accused was cnutJca to a new Huai. In the instant action, witness, Trujillo, testified as to his identification of defendant at the police station in a confrontation; defendant was not represented by counsel noi had lie waived such right. Therefore, the per so exclusionary rule oi W aria C.iii . 1 uul-- he applicable to this testimony, unless the fact'; cl tliis cause tall li.i.n uii exception to the rule. Identification of defence..., however, was uu. a iact in issue. Defendant conceded that he was in i.hc u.ir, he merely d cOitu i;.ai lie had stolen money. Therefore, the testimony of witness, rujillo, concerning his identification of defendant at lhe police station may be Jet land i. armless in-co- Court for trial. That trial is the same trial at which this self-sam- e city court judge presided as a District Court judge, although neither the defendant nor his attorney consented to such unorthodox procedure, and although they had objected to his Honor (or Honors) on the basis of bias and prejudice. After Ibis city judge bound defendant over to the District Court for trial (which was later presided over by the same erstwhile city judge), appellant fired his appointed counsel because he believed there was a conflict of interest. Present counsel, Mr. Florence, was then appointed to represent defendant. Stating that previous counsel's notes were illegible and that he could not properly defend McGee, he asked the judge of the District Court to order another preliminary hearing. Whether he was entitled to another such hearing is somewhat debatable, but immaterial, since the fact is that the District Court judge ordered another preliminary hearing. The same city judge flouted such order and refused to comply with it. Counsel for defendant pressed the matter of bias and prejudice before the District Court. His objection detoured and came before another District Judge, who, with a sweep ol' an albino brush, countermanded the order of his robed colleague. In any league, it would seem to this writer, the city judge voluntarily should have disqualified himself from umpiring in any future innings of the present juridical hall game. urt face-to-ia- cu -- . 1 beyond a reasonable doubt. i There is one other aspect which merits consideration, for the cou. .s have recognized an exception to the W rules. In the Wade decision the court expressed the following rationale for its ruling. ade-Gilb- we scrutinize any . . . ert pretrial confrontation Liii-if- i ne ' -- : ili. tins and conin'.elcly ignores Point No. 2 iifics mentioned auove, by gratuitously raising a brand r.PW point that neither side considered pertinent, - an issue based on a statute never mentioned any0, where by anyone, in the bnels on appeal, or m the record (Title 21, (.i.C. A. 1)53, as amended Chapter 253, .Laws of Utah 1969). 78-3-2- j in- applicable to this particular nonlineup confrontation, which occurred as a result of an immediate pursuit and apprehension and within minutes after the commission of the crime. lhe defendant haB had absolutely no opportunity intelligently to meet this new point raised by this court, except in the middle of counsel's oral argument to the court, when one of the justices inquired as to its applicability here. .- What this court unfortunately is doing in this case is issuing a declaratory judgment, not initiated properly under the provisions of our declaratory judgment act, not a true adversary proceeding, without any opportunity on the part of anyone to research and brief the matter, - in effect, declaring 0, that the appointment of a city judge to be a district judge under sanctions with the constitutional D.C.A. 1953, is compatible pertaining to judges pro tempore. Mr.' Florence, counsel for defendant, was a member of the legislature that passed the act. In open court he emphatically announced that the legislature had no intention of concluding as does the main opinion here. . . s I i it mliiasi. ( - . jtlLf, t . IL 111 r It id I. Ui 78-3-2- i irta '. t y -- .1 Jo i t. . 1ft UII 1 I 1. 1 The only statutory issue in ims case relating lo the qualification of the trial court had to do witn Arinic Ylll, Section 5, of the Utah Constitution. Appellant said this constitutional provision was violaled since delendant obviously did not consent to the city judge sitting in judgment over defendant as District Court Judge. As to such lack of consent, defendant is dead right, and the State does not deny that he is dead right, - neither in the record nor in its brief. The whole thrust of the State's answer to McGee's contention is that the city court judge actually was a qualified judge pro tempore, because McGee ''acquiesced in Judge Mecham's sitting as pro tempore judge." The State pulls that one out of the fire by the novel argument that after defendant screamed that Judge Mecham was biased and prejudiced, and was given the paint treatment mentioned above, he did no more objecting, - and bingo, thus acquiesced. Nowhere can the main opinion point to any contention by the State or anyone else, except that urged by the unsolicited, unwarranted and unsanctioned issue raised for the first time on appeal by this court itself. Finally, defendant asserts that the trial court committed prejudicial error by the manner in which it framed the instruction regarding the ele- ments of grand larceny. The court instructed Me jury that hi for dt fendant - a icasoiiauii cmuhi that the could be convicted they must be convinced be money described in the evidence n i. axing n cu stolen iron. Aits. 1 ruiilh was in fact taken by defendant. i.ie.ei.c.ai.i toniei.ua t,.a. this pr.au ot the instruction was misleading and induced the mi) o criw , :i tnonaus lnl'erince, i.c., tiie instruction prt lucic--w the ;ac.t.. that ;n. nun y v,i a stolid lrum .at - l. i. a. uiai tti.i Mrs. Trujillo. li.t cc. .&: iii.eiopis . uiti t! '(.is mi.- - in n s'r nil but no money , ar.o v itli.Ul j ilis pul'tilMl 1)1 MIC Hi i.itill, l.'ilb . Iju. Ai.i i i. aigui. it'll. ' unU u n i'.riu.i:ii. does incur- fusion its muMMiii... sir .iwi out oi cumcxl . cu l i In the instant action, we hold that the rules of Wade Gilbert are I re-ro'i- j Based on the foregoing statement, the courts have declined to apply the Wade-Gilbe- rt rules in certain nomine up contexts whenm confrontations have occurred shortly after the commission of the crime or in other circumstances where prompt identification is necessary or nesirahle. i he California Supreme Court observed that the proper determination of whether the Gilbert-Wad- e rules were applicable to a particular case will be achieved only a careful by balancing of the need for a prompt lineup identification in light of the circumstances against the need for and ability of counsel to avoid erroneous identification. The court stated that each case will of necessity call upon the courts to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and iue abibtj of counsel to help avoid that prejudice. i sucu .ircui.istai.ces one at least wonder about constitutional guarantees oi due process in proceeding afresh beiore the same judge. Guilty or not guilty, an accused, under such circumstances, might feel denuded or uisroinrd before lhe same sitting not junsi, hcr.iiid ;i"' t.iii.e, lut j mltt-icuIn Lerih, beyond s fnriiici bailiwick. of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's right to a fair trial the as affected by his right meaningfully to cross-examiwitness against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to delendant's rights inheres in the particular confrontation and the ability of counbel to help avoid that prejudice. v and 1. GNCUK: WE think there arc many besides this writer who would question the onstitutionality of that statute, what with the possibility that incursions into the area of constitutionally created courts well might be extended by future legislatures to include those presiding over ecclesiastic courts, town court judges, judges of election or beauty contests, as being qualified to sit in judgment over accused persons, million dollar trusts, wills and succession matters and the like. I i Ellett, Justice A. II. State 1. 2. Si. i I Freeman; V . ni,,. c 1 I, SI a 1 , . i ; UI 3 . '.1. i I.- -, . 1 1. ' . (. ' I'ii'j) ; sails in the sunset. l.2d 71 HZ, ('.A. it .c 'I l Utah ti'lc1 I One might say that surely the legislature would noi expand such legislation. It is interesting to note that the original legislation, Chapter 222, I.aws of Utah 1967, allowing assignment only of district judges, quit k v was amended by Chapter 253, l.aws of Utah I9i9, to include city judges. At this pace, the complete breakdown of a substantial, responsible judicial system easily can be seen legislatively written on the red a J I'M ' . I. . r. 2d tit I I . I Hi',, 130'L ,. ' . I 1'iJC fr' !' . lie appellant should have a new trial 1) because the procedure in ase Jacket! the essentials of due process, and 2) the trial court was imi in1, i sled with .mV authority as a judim pro tempore under the constitution and til its implementing judge pro tempore statute lo, . (.. A . Tj J). I ll.is c I . (1937). '? I fill (i'8-3-1- 5, ; i 1.1 ir'i ' ' . I I |