State v. Jordan

487 P.2d 1281, 26 Utah 2d 240, 1971 Utah LEXIS 700

• Court: Utah Supreme Court
• Decided: August 12, 1971
• Docket: No. 12276
• Status: Published

Opinions

HENRIOD, Justice.

Appeal from a murder conviction. Affirmed.

The evidence makes it appear that three young men collaborated in killing an elderly groceryman, subject of this appeal.

Appellant urges that: 1) It was error to deny defendant’s motion to suppress identification evidence obtained at an unduly suggestive line-up, 2) that deception of a police officer that influenced a witness was reversible error, and 3) that the court erred in not granting a motion for a mistrial when an alleged co-murderer refused to be sworn.

We think 2) and 5) abovp are without merit, since the matters referred to were subjects for jury deliberation involving credibility, etc.

As to 1) : Two teen-age hoys, eyewitnesses, made in-court identifications of defendant. One of them identified one of the alleged murderers at a line-up where two were present, hut where there is nothing on the record to indicate that the defendant here was at such line-up. About two months after the murder the two teens positively identified defendant in a hallway at a preliminary hearing where they knew defendant was the defendant. The latter was handcuffed to another of the suspects, wore a T-shirt with “Salt Lake County Jail” stenciled thereon, at which time a deputy county attorney asked the teens if they could identify the suspects,' — which they did. One of the witnesses said that beside seeing defendant at the scene, he recognized him on a TV broadcast shortly after the murder and arrest.

Defendants are led handcuffed from the jail to the courthouse for trial as a matter of course and necessity, and we know of no case reversing a conviction for that reason alone. We think neither the T-shirts nor the deputy county attorney’s remarks lent any more suggestiveness of guilt or identity than the handcuffs, and are insufficient to change the result in affirming the trial court.

There being other and independent evidence by line-up of one of the defendants and showing pictures of one of them followed by an identification, and admissions by defendant himself, and other overwhelming evidence pointing to the participation of defendant in the holdup and murder as to convince us that any departure from standard, orthodox procedures anent identifications, in this particular case, was without any substantial prejudice to defendant, which if any existed, was dispelled by such independent identification factors and other evidence as not to violate any tenets of due process.

In this connection, the facts of this case are so different than those in Stovall v. Denno,¹ upon which defendant so heavily relies, as not to render that case dispositive here, save, perhaps, as an authority against the defendant’s position, when it says that a “claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstance surrounding it,” — and in this respect the case more nearly supports the State’s position than it does the defendant’s.

The jury’s verdict and the judgment entered thereon are affirmed.

TUCKETT, J„ concurs. CROCKETT, J., concurs and also concurs in the concurring- opinion of ELLETT, J.

1 . 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).