Bomlan v. State

927 P.2d 910, 129 Idaho 520
CourtIdaho Court of Appeals
DecidedNovember 1, 1996
DocketNo. 21915
StatusPublished
Cited by1 cases

This text of 927 P.2d 910 (Bomlan v. State) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bomlan v. State, 927 P.2d 910, 129 Idaho 520 (Idaho Ct. App. 1996).

Opinion

SWANSTROM, Judge Pro Tern.

George L. Boman appeals from a district court order denying post-conviction relief. For the reasons stated below, we affirm.

In June 1993, this Court affirmed Boman’s conviction and sentences for burglary in the first degree, battery with intent to commit a serious felony and use of a deadly weapon during the commission of a felony. State v. Boman, 123 Idaho 947, 854 P.2d 290 (Ct.App.1993). Boman was represented by counsel from the Ada County Public Defender’s office in the trial and that appeal. Thereafter Boman filed a pro se application for post-conviction relief. In his application, he asserted that he had been denied his right to counsel at a lineup in violation of the federal and Idaho constitutions and I.C. § 19-625(2)(H), which led to an out-of-court identification. He also alleged that the assistance he received from his counsel was ineffective.

The district court appointed counsel for Boman and conducted an evidentiary hearing on Boman’s application for post-conviction relief. After considering arguments and post-trial memoranda, the district court denied all of Boman’s post-conviction claims. From the order denying relief, Boman filed this appeal.

The issues we must decide are: (1) whether the Sixth Amendment of the United States Constitution or Article 1, Section 13 of the Idaho Constitution mandated that counsel for Boman be present at his preindictment lineup; (2) whether Boman’s right to counsel under Idaho statutes required that counsel be present at the lineup; and, if either of these questions are answered in the affirmative, (3) whether the absence of counsel at the lineup requires the application of a per se rule excluding the identification evidence which was admitted at trial; (4) whether Boman was denied the effective assistance of counsel because of counsel’s failure to attend the lineup; and (5) whether counsel was ineffective because he failed to move for suppression of the lineup evidence.

I.

DISCUSSION

Briefly stated, the facts leading to Boman’s conviction and germane to the issues we discuss are as follows.

[523]*523On September 12, 1990, a man entered a cafe near downtown Boise at about 10 p.m. wearing a grey, hooded sweatshirt and pantyhose over his head. He grabbed a waiter, placed a knife to his throat, and demanded from the cashier, “Give me all the money or I’ll cut him.” When the waiter struggled with the man he fled and the waiter followed. During this time the cashier called 911 to report the incident. The waiter saw Boman get into the passenger side of a dark colored Maverick or Pinto and speed off.

The victims gave police a description of the man and the car. Within minutes a car matching the description was stopped by police. Boman was in the passenger seat and a grey, hooded sweatshirt was in the back seat. After an investigation, a knife with a palm print on it that matched Boman’s palm print was found where the passenger door was opened. A pair of pantyhose was found on a street that was on the direct route from the cafe to the location where Boman was stopped.

The police immediately learned that Boman was wanted on other charges. He was arrested, taken to the police station, given his Miranda rights and interrogated. He denied any involvement in the attempted robbery. On the afternoon of September 14, 1990, before any formal charges were filed against Boman for the attempted robbery, the police obtained a detention order from a magistrate which authorized them to, among other things, conduct a lineup. Both witnesses to the attempted robbery identified Boman as the would-be robber.

A. Constitutional Right to Counsel

Since Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the right to counsel guarantees of the Sixth and Fourteenth Amendments are inapplicable to confrontations between the accused and witnesses against him which take place prior to the initiation of judicial criminal proceedings. See State v. Sadler, 95 Idaho 524, 528, 511 P.2d 806, 810 (1973); State v. Valdez, 117 Idaho 302, 307, 787 P.2d 288, 293 (Ct.App.1989). Testimony concerning an identification which took place long before the commencement of any prosecution whatever will not be subjected to a per se exclusion rule. Kirby, 406 U.S. at 690, 92 S.Ct. at 1882-83. Boman does not disagree with this precedent, but takes his argument a step further.

Boman argues that, although he was being held for the lineup under a detention warrant, he was the main suspect of the police who had progressed from the investigative stage to the accusatory stage in the proceedings. Therefore, he contends that his constitutional right to counsel, under the Sixth Amendment, Fourteenth Amendment, and Article 1, Section 13 of the Idaho Constitution, had attached. Boman relies on United States v. LaPierre, 998 F.2d 1460 (9th Cir. 1993) as authority to vacate his conviction based on a denial of the right to counsel at the lineup.

Once the government has initiated “adversary judicial criminal proceedings,” Kirby, 406 U.S. at 689, 92 S.Ct. at 1882, counsel’s presence is “a requisite to conduct of the lineup.” Wade, 388 U.S. at 237, 87 S.Ct. at 1937.

LaPierre, 998 F.2d at 1463. Conduct of the lineup in violation of the right to counsel implicates a per se exclusionary rule for resulting identifications. United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937-38, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Reliance upon LaPierre is largely misplaced, as the lineup in that case was clearly a “post-charge” lineup. However, Boman also cites United States v. Larkin, 978 F.2d 964 (7th Cir.1992), where the lineup occurred approximately three months prior to Larkin’s indictment. The court in Larkin noted that “the right to counsel presumptively does not attach at pre-indictment lineups.” Larkin, 978 F.2d at 969, citing Kirby, 406 U.S. at 688-89, 92 S.Ct. at 1881-82. The court went on to say, however, that a “defendant may rebut this presumption by demonstrating that, despite the absence of formal adversary judicial proceedings, ‘the government had crossed the constitutionally significant divide from fact-finder to adversary.’ ” Id. at 969, quoting United States ex rel. Hall v. Lane, 804 F.2d 79, 82 (7th Cir.1986), cert. denied, [524]*524480 U.S. 921, 107 S.Ct. 1382, 94 L.Ed.2d 696 (1987).

Even if we choose to follow Larkin, it does not mandate the result urged by Boman. While Larkin suggested that the government may not intentionally delay formal charges for purposes of holding a lineup outside the presence of defense counsel, the court held that Larkin made “no showing that the government crossed that line here.” Larkin, 978 F.2d at 969.

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Related

Boman v. State
927 P.2d 910 (Idaho Court of Appeals, 1996)

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927 P.2d 910, 129 Idaho 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bomlan-v-state-idahoctapp-1996.