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Show MONDAY, AUGUST 16, 1971 TNC DAILY Division Supreme Court Q And they have told you that that night after Willie was arrested that you had said that Willie done it or Willie had told you? Is my question clear? Q Let me try it again. When the police had been talking to over the past several months they have told you that you had you told them that Willie said he had done it? i I A FIVE p. No. A PACE Kueffner identified Murphy. Wyllie was unable to identify Murphy; Wyllie testified that the line-u- p was conducted too rapidly, and they were all dressed alike and had the same color hair. There was no evidence that Jordan participated in a line-u- Yes. A RECORD don't remember. On January 28, 1970, almost two months after the Lucy Street incident, the two witnesses positively identified Murphy and Jordan. Ray Wyllie explained that he went to the hallway outside of the courtroom where the preliminary hearing was being conducted. He knew that Murphy and Jordan were charged with homicide and that their preliminary hearing was being held in the courtroom. Neither boy was called to testify at the hearing. Wyllie stated that he didn't see them in the courtroom but that he knew they were in there. Wyllie observed Jordan and Murphy being brought back and forth between the jail and the courtroom. The two prisoners were handcuffed together and were with "Salt Lake County Jail" stenciled across them; they wearing walked directly past the witnesses in the hallway. A deputy county attorney then queried whether the witnesses could identify them; they responded affirmarts Q Well, didn't they tell you that? A Yes. tively. The police officer denied having any such conversation with the girl, and the jury was entitled to determine what the facts were. Even if what Jordan's lawyer was trying to get the girl to say were the truth, it is of no consequence since she never did change her testimony about what Jordan had actually told her. In fact, on further examination she testified: What did you say when Willie said he had shot a man? Q I didn't believe him at first until he went into detail and me what happened. told A The girl testified that she had told two of her friends what Jordan had and then the prosecuting attorney elicited the following additional testisaid, from her: mony Q And you No. A Q have never told me this, have you? Now, can you tell us why you didn't tell anybody be- fore this? A .1 was scared and I was trying to protect Willie. The State gave further proof of Jordan's guilt by calling Wilde, the boy who owned the green Rambler. Wilde testified that he was told by Jordan where to park, that Jordan and Murphy rode in the stolen car and later ran from it to his car; that he was told by Jordan to drive back to the apartment; and that Jordan had a small pistol while in the car. He further testified that when they got to the apartment, Jordan said he was going to get some cigarettes, and when Wesemann (the victim) was to give him the cigarettes, he pulled a gun and told Wesemann it was a stickup; that Wesemann would not give the money and was reaching for him; and that he shot Wesemann twice and then ran to Murphy's car and drove to the Rambler. This witness was given immunity so that he could testify against Murphy and Jordan. He was an accomplice, but his testimony was amply corroborated by other competent evidence as outlined above. Jordan makes no complaint about any of the instructions given by the and court, they seem to cover the question of corroboration properly. . Jordan makes one further claim of error. Murphy had previously been tried, convicted, and sentenced for the crime for which Jordan was on trial. The prosecuting attorney called Murphy as a witness, but Murphy Jordan claims that Murphy's attorney told the proserefused to be sworn. cuting attorney that Murphy would not testify, and he claims that it was prejudicial error to call the witness. There is nothing to this contention. Murphy had already been tried Even if he had a privilege he did not claim it, he simply refused to be sworn. He and Jordan were buddies, and he undoubtedly did not want to tell the truth. Neither did he want to have another felony conviction, to wit, for perjury, and so he refused to be sworn, knowing that a jail sentence was all he could get for contempt of court; and 30 days in jail might be preferable to his stay in the state prison. and had testified in his own behalf. think there was any prejudicial error committed by the court during the trial of this case. The question of guilt or innocence was for the jury, and it seems to me that the verdict rendered was amply supported by the evidence. I would, therefore, affirm the judgment. I do not T! Until a witness is sworn he is not permitted to testify. CALLISTER, Chief Justice: (Dissenting) Witness Kueffner testified that in addition to his observation of Jordan and Murphy on Lucy Avenue, he recognized them on a television news broadcast at the time they were arrested for Weseman's death, at the time of the preliminary hearing from the back of the courtroom and out in the hallway. The witness testified that he and Wyllie were informed by the police that they were the only eyewitnesses who could make an identification; the boys were eager to help solve the case and to be good citizens, who cooperated with the police. Kueffner further testified that subsequent to the hallway identification he went to the District Attorney's office twice or thrice where he observed pictures of Murphy and Jordan with their names affixed thereupon. Kueffner testified that he first talked with the police in the afternoon or evening of the murder. The defense introduced a police bulletin that was issued at 11:05 P. M. (Mr. Weseman died at approximately 2:50 P. M.) wherein the suspects were described. There was a fairly complete description of the driver of the green Rambler and of a person resembling Murphy. The third suspect was identified as eighteen years old, black hair, and no further description. Defendant has not challenged the pretrial confrontation on the ground of a denial of the right of counsel at a critical stage of the proceedings. 1 He asserts the independent ground that his identification confrontation was so mistaken identification unnecessarily suggestive nd conducive to irreparable as to constitute a denial of due process of law. 2 In Stovall v. Denno respectfully dissent. On December 4, 1969, Alfred Weseman was shot and killed while resisting an attempted robbery of his grocery store. According to evidence adduced at the trial, three men participated in the commission of this crime, one, the gunman, went into the store; the second, Eugene Murphy, remained in a white Chevrolet outside of the grocery store; the third, Earl Wilde, waited in a green Rambler, a short distance from the scene of the crime. The primary issue of the trial was the identity of the person who shot Mr. Weseman; the prosecutor asserted defendant was the man, and defendant contended that it was Johnnie Knight, aka Johnnie Hancock. On appeal, defendant urges that the trial court erred in its denial of a motion to suppress the identification of two eyewitnesses on the ground that the pretrial confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. boys, Kirt Kueffner and Ray The witnesses were two identifications of defendant at his trial. The Wyllie; both made boys testified that they were walking along Lucy Street in Salt Lake City, when they observed two men get out of a white Chevrolet and run down the middle of the street for a distance of 100 to 150 feet, turn the corner and drive off in a green Rambler. The witnesses stated that the runners passed within five or ten feet of them and that they had an opportunity to observe them for about one minute. The boys testified that Eugene Murphy and defendant were the men whom they observed on Lucy Avenue. in-co- urt Shortly after this incident, the witnesses attended a line-u- p, wherein of showing sus- had been pects singly for the purpose of identification, rather than in a line-uwidely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. In Foster v. California the court emphasized the suggestive elements 1. United States v. Wade, 388 U.S.218, 18 L. Ed. 2d 149, 87 S. Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 178, 87 S. Ct. 195 ( 1967). p, 1 1 1 2. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1 199, 87 S. Ct. 1967 ( 1967); Simmons y. United States, 390 U.S.377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 ( 1968); Foster v. California, 394 U.S.440, 22 L. Ed. 2d 402, 89 S. Ct. 1 127 ( 1969); Coleman v. Alabama, , 26 L. Ed. 2d 387, 90 S. Ct. U.S. (1970). 3. Note 2,1 sUpta, at 388s UT.'S. 302. 4. Note 2, supra, 394 U. S. 443. in the identification procedure which made it all but inevitable that the witness would identify defendant, whether or not he was in fact "the man. " The court concluded that this procedure so undermined the reliability of the eyewitness identification as to violate due process. In Simmons v. United States the court framed the issue in terms pretrial identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. The court proffered certain standards in an evaluation of the totality of the circumstances of the identification procedure. First, was there justification for the procedure, the necessity for using the type of identification employed, the urgent character of the circumstances? Second, under the circumstances, was there a chance that the procedure utilized would lead to a misidentification? The court mentioned factors, such as the opportunity and length of time that the witness had to observe the accused, the period of time that elapsed from the occurrence until the time of identification, i. e. , were their memories still fresh? In Simmons, a photographic identification procedure was being challenged, and the court mentioned the number of photographs displayed to the witnesses. In concluding its analysis, of whether the the court stated: Each witness was alone when he or she saw the photographs. There is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any way suggested which persons in the pictures were under suspicion. . . . t, I i the court stated that the practice I c In Coleman v. Alabama the court observed that the evidence adduced at the suppression hearing indicated that Reynold's (the witness) identifications were entirely based upon observations at the time of the assault and were not at all induced by the conduct of the line-uwhich was allegedly p, impermissibly suggestive. In the instant action, the trial court erred when it denied defendant's motion to suppress the identification testimony of the two witnesses. There was no justification for the identification procedure utilized under the circumstances. There was a lapse of almost two months from the time of the initial observation until the identification, although Jordan had been in custody since two days after the incident. The evidence disclosed that Johnnie Knight was also in custody. Kueffner had previously identified and was Jordan Murphy, handcuffed to Murphy, and both were dressed in The witnesses, prison garb. who were in the hallway together, were informed that the prisoners were attending their preliminary hearing for the homicide of Mr. Weseman. The suggestive elements in the identification procedure made it all but inevitable that the witnesses would identify Jordan, whether or not he was in fact "the man. " There was insufficient evidence adduced to indicate that the identification at trial was based upon independent observations and was not induced by the impermissibly suggestive pretrial confrontation. Conceding that this identification testimony was inadmissible, this court, in my opinion, erred in resolving that the admission was harmless beyond a reasonable doubt, in view of the other evidence developed at the trial, which substantiated the identification of Jordan as the person who com- Continued on Tagcl |