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Show I Mortal THE DAILY RECORD . TUESDAY. JUNE 12, 1973 la The Supreme Court Of The State Of Utah I State of Utah, FILED May 29, 1973 Ronald Dale Easthope, Defendant and Appellant. . Clerk L. M. Cummings, Since the cases of Wade and Gilbert just referred to, the generality has been limited in the case of Kirby v. Illinois5 that, ", . . it has been firmly established that a person's right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him whether by way of formal charge, preliminary hearing, indictment, information or arraignment. " .We have heretofore asserted our accord with the Kirby The principle is applicable here because the line-u- p was in the decision. investigatory phase and before the defendant was arrested. CROCKETT. Justice: ... Ronald Easthope appeals seeking to reverse his conviction by a jury of the crimes of rape, sodomy, and robbery. His contention is that he was convicted by spurious evidence obtained in violation of his constitutional and to counsel. rights against self-incriminat- ion woman who lived alone in her apartment, had fallen asleep on her living room sofa after watching night television. About 3 a. m. she was awakened by a tapping on her head. A man wearing green gloves and a nylon stocking over his face, wag standing over her holding a gun. By use of force and threats defendant compelled the victim to remove her clothing and then subjected her to the violence of the stated offenses; and took her money, thirty dollars, and left. She then called her upstairs neighbors, and tried to go up there, but collapsed on the way. On January 26, 1971, Terri a D usual circumstances it is not only impractical but serves no useful pur pose. Assume that several men may be possible suspects. They are asked to stand in a line-u- p. Each demands the right to have counsel present. Maybe none of them are identified. Even if one is, having counsel present for all of the others was quite useless; and the same is true for the one identified. In the No. 12739. Plaintiff and Respondent, appropriate to further express out view that notwithstanding what has been said in the cases above referred to, a line-u- p is used as of an of crime, whether before or fter a charge has been part investigation Neverfiled, it must be conducted in a fair, reasonable and impartial manner, no is there nor theless, ordinarily practical necessity for, requirement of, the line-u- p; of counsel a and at there is no violation Of the right unices presence under the circumstances it should reasonably appear that some useful purpose might be served thereby, and that the person under investigation, after being informed of his rights, expresses a desire for counsel, neither f which existed in the instant case. We think it old v,'-ier- A month later, in investigating the case, two Salt Lake City detectives on called defendant, told him they were investigating a case and asked his permission to search the premises. He agreed. They did. The next day Defendant's motion to suppress the statement he made about anyone identifying him when he had had a nylon stocking over his face was likewise' without merit. It is true that statements taken from an accused by police officers who have him in custody should be carefully scrutinized as to possible duress; and that admissions or confessions should not be exacted until and unless the accused has been advised on his constitutional rights. Here this had been done and he had in effect claimed his privilege against by saying he did not want to make any statement, and that he wanted a lawyer. It was he who initiated the further conversation by asking the basis of his arrest. When the officer told him he had been identified in the line-uhe voluntarily made the response of which he now complains. The privilege against selfincrimination does not protect an accused .against statements he voluntarily makes after he has been informed of his rights, they returned and, after informing him of his constitutional rights, asked him if he would be willing to stand in a line-u- p to ascertain his possible inG volvement in the Terri D rape case. Defendant again agreed. told about his He was again rights, including that of counsel, and that they line-uHe said he saw no need to have an attorney present applied to the It was conducted that evening. The persons who stopd in at the line-uit all'had nylon stockings over their heads; and each spoke a few words. self-incriminat- ion p. p. p, as her assailant. The defendant was identified by Terri D Defendant was then placed under arrest. The officer again reminded him of his legal rights, and asked if he wanted to make any statement. He said no, and asked for an attorney,! A phone book opened to the lawyers section was offered, but he declined to make any call. He asked the officer the basis The of his arrest, and was told that he had been identified in the line-u- p. defendant made a remark similar to that he had made in the other case: that he did not see how anybody could identify him with a silk stocking over his face. Prior to the trial, defense counsel moved to suppress the use The trial court was justified in determining that the idefendant's constitutional rights had not been infringed and in denying the motions to suppress the questioned evidence. Affirmed. WE CONCUR: of evidence concerning identification at the line-u- p on the ground that he was denied his constitutional right to have counsel present; and also to suppress any evidence concerning the statement he made on the ground that it violated his constitutional right against self -- incrimination, which he had not knowingly and intelligently waived. Both motions were denied and the evidence was used at the trial. .Every person under accusation of a crime is assured the right E. R, Callister, F. Henri Henriod, Justice A. H. Ellett, Justice to Defendant places counsel by our state and the federal constitutions. Chief Justiee Jr., Justice R. L. Tuckett, U.S. 218, 87 S. Ct. 1926 (1967). 388 U.S. 263, 87 S.Ct.1951 (1967). 406 U.S. 682, 92 S. Ct. 1877, 1881 (1972). 388 This defendant was convicted of rape on another victim, some of the facts are similar, including the nylon stocking over his face, see State v. Easthope, 28 Utah 2d 244, 501 P, 2d 109 (1972). The issue raised there was concerning the admission of a confession by defendant, 2. Utah Const. Art. I, Sec. 12; U. S. Const. Amend. VI. 1. State v. Wettstein, 28 Utah 2d 295, 501 P. 2d 1084 (1972). See statement in State v. Ervin, 22 Utah 2d 216, 220, 451 P. 2d 372 (1969). Also see Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 (1967); Neil v. Biggers, 93 S. Ct. 375 (1972). U.S. 6. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); State v. Farnworth, 24 Utah 2d 223, 469 P. 2d 9 (1970); State v. Jiminez. 22 Utah 2d 233, 451 P. 2d 583 (1969); State v. Scandrett, 24 Utah 2d 202, 468 P. 2d 639 (1970). p reliance upon the cases of U. S. v. Wade5 and Gilbert v. California. The right to counsel at a line-u- p stated as a generality, is seriously to be questioned. 12739 Births SOUTH DAVIS Mr. and Mrs, Daroid Carling 12 Bonita Way, Centerville daughter Mr. and Mrs. Gordon Curt 2818 S. Holbrook Bountiful son Mr. and Mrs. Charles E. Sorensen, 1115 No. 200 East, Bountiful, 1U5 No. 200 East, Mr. and Mrs. Grant Hodgson 190 W. 100 No. Bountiful, son Mr. and Mrs. Glenn Goodrich 65 So. 500 East, Bountiful, daughter Kay s vi lie, COTTONWOOD Gilbert Ramirez son HOSPITAL W. 13100 So. Riverton, daughter Mr. and Mrs. Dennis A. Moss 5532 Easton St. son Mr. and Mrs. Gabriel Nache-buen- a, Wendover, son Mr. and Mrs. Ricki G. Searcy 1617 1350 E, Sandy, daughter Mr. and Mrs. Dale L. Springer 2538 E. 9850 So, son Bountiful, son Mr. and Mrs. Bankruptcies 1878 COMMUNITY Bankruptcies 444 - Ronald Eugene 6828 S. Georgia Dr. Klotz, W. Jrdn; unempl; Liab, $31,869.10;" Asset, $554.67; Ex, $333.04; June 1, 1973; , Mr. and Mrs. Douglas Grebs 1008 Downingt on, daughter Mr. and Mrs. Donald L. Fulton 129 Oakcrest Dr. daughter Mr. and Mrs. Darrell Dwight Holt, 9057 So. 27 00 West, daughter Mr. and Mrs. Dennis L.Flota 2329 Green St, son Mr. and Mrs. J. Keith Muhle-stei- n, 537 LaSalle, Dr, son Mr. and Mrs. U. L. Vance, 53I7 Charlotte Ave.son Mr. and Mrs. Gordon A. Barnes 1522 So. 1920 West, Hunter daughter Mr. and Mrs. Larry Esplin, 6226 Rodeo Lane, son Mr. and Mrs. Gene Hess 1270 Cassar Cl, daughter Mr. and Mrs. Richard R.Hunt 1126 So. 1000 West, Granger son Mr. and Mrs. Sam L. Johnson 11400 So. 700 West,daughte Mr. and Mrs. LeRoy L.Key - Patrick M. Liberty, 161 S. 5th W. Lgn; trk drivr, Vly Rendering Co; List, $4000.53; Asset, $370.00; Ex, $170.00; June 4, 1973; - Richard Dean Allen, 4805 $3,575.08; Asset, $295.00; Ex, $150.00; June 4, 1973 - Sidney A. Bx 25593 Phoenx contracts Llab,-$305,194.24- Miller, P.0, Arlz; biding - Frank Oliver Harris, 126 452 Virginia SLC; meat coutter, unempl; Llab, $17,157.16; Asset, $2,746.44; Ex, $510.00; June 5, 73 453 - Anna Harris, 126 Virginia hsevf; Liab, $17,157.16; Asset, $2,746.44; Ex, $510.00; SLC; 454 - Dorothy Mae Loomis, 970 June 5, 1973 - Ernestine J. Miller, P.0 Box 25593 Phoenx Arlz; Secretry Llab, $305,194.24; Asset, $6310.00; Ex, $4445.00; June 5 450 - Larry Judd Kley, 2853 S 9150 W. Mgna; warehseman, Safw) Stores, Inc; Llab, $12,987.07 Asset, $582.00; Ex, $75.00; June 5, 1973 459 - Darlene Hansen, 2775 Gramercy St. Ogdn; hsewf; 172 460 - Stephen Sidney Sherwood, 2544 N. 475 W. Sunset; unempl; Commerlcal Sec, Bank to Arnold Lee White etux. 150 First Fed,, Llab, $6,552.04; Asset, $350.00; Ex, none; June WAGE 457 - William Dee Samowitz, 510 E. 10560 S. Sndy; special Deputy, Salt Lake Cnty Sheriff 196 EARNERS PLAN 026 Fed. Bldg, J, 027 of Mortgages Central Sav. Bank to C. Winters etux. 023 a-- 1 to D etux. Keman Occidental Life to Ferris A. Mathie etux. Seo. Bank etux. 265 Beneficial Life Ins, to Wallace etux. H, M, 4 Inv. Carp, to American Tierra Carp, 28? Fop ire 317 Western Aluminum L, Atwood etux. 323 to Sigurd First Fed. Sav. Dean Rogers 328 Don W. to Eunice to P. etux. Giles, To Harold Hoults etux. 367 Old Stone Sav. Bank G, Smith etux. 375 Oak to 385 Oak 087 Central Sav. Bank to Wm. E. Hatfield Jr.., etux. 394 Same 398 Dan R. Fogle etux to Whom May Concern. 458 - Kenneth A. Hansen, 2775 Gramercy Ogdn; meat cutter, Deseret Fed, Sav. to J. Herbert Parry etux. 102 Same 108 Valley Bank to L. B. as 101, W, Hills Inc, to Sawyer Investment. Federal Nat. Mtge, to C,a M. Centner etux. 101 Inc; Llab, $20,520.15; Asset, $1,152.00; First 082 Dept; Llab, $26,387.49; Asset, $3,703.78; Ex, $661.38; June 6 Ware-Ma- . Nygaard Government Nat. Mtge, to Closs L. Stewart etux. Wm. $3,534.62 Ex, $3,558.92; 6 7 - Nickolas Alexander Veils, Ogdn; Civil Service Empl, HAFB; Llab, $7,045.30; Asset, $88.00; Ex, none; June 025 to Sav, Nelda Peterson etux. 447 455 - June Un to Clifford S, cole etux. 7 004 456 - Barton LaVell Swapp, 1060 E. 7575 S. Mdvl; cement finlshr, Bart Swapp Constrctn Co; Liab, $30,584.47; Asset, Granite Teachers Cr, 145 Llab, $20,520.15; Asset, $1,252.00; Ex, $820.00; June medical transcrb Release Veterans Admin Hosptl; Liab, $13,251.12; Asset, $8,415.00; 2540 Ex, none; June 6 Daniel Dean Moore, 970 6th N. SLC; restrnt managr; Liab, $31,740.93; Asset, $7,845.00; Ex, none; June 6 of Mortgages Release 600 N. SLC; ; Asset, $6310.00; Ex, $4445.00; 449 Attendnt, Eastslde America ; Llab, $9129.07; Asset, $610.00; Ex, none; June 5, 197: W. S. 2500 W. Roy; Equip Malntence Mechanic, HAFB; Llab, 448 451 - Robert Dean Gunnarson, 2532 Polk Ogdn; Service statn W. 445 446 -- 2- Hills Inc. to Sawyer Investment. as 385. it 402 NY Life to J. S. Bateman rt, Ex, $825.00; June 7 Abraham etux. 404 MeGhie Land Title, to Hal K. Larsen and Sons, |