United States v. Greene

21 C.M.A. 543, 21 USCMA 543, 45 C.M.R. 317, 1972 CMA LEXIS 668, 1972 WL 14184

• Court: United States Court of Military Appeals
• Decided: July 28, 1972
• Docket: No. 25,100
• Status: Published

Opinions

Opinion of the Court

Darden, Chief Judge:

We granted accused’s petition for review to consider whether the military judge erred prejudicially in refusing to permit cross-examination of certain witnesses on their identification of him as one of the perpetrators of the offenses charged.

During the evening hours of September 17, 1970, Privates John Twist and Lester J. Taylor, and Private First Class John Waesche were robbed by another group of soldiers, soon after they left the Timmerman Theater at Fort Dix, New Jersey.

Promptly after the incident, a lineup was held at which the victims identified the accused as one of their assailants. At the trial, the Government conceded that the identification parade did not meet the requirements of United States v Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926 (1967), but, over defense objection, insisted that the victims’ in-court identifications of the accused were admissible as being independently founded.

The military judge ruled that the in-court identifications were admissible but, after they were received, refused to permit the defense counsel to cross-examine the witnesses as to the circumstances under which the lineup was conducted. He reasoned that, as the evidence of the pretrial lineups had been excluded under Wade, supra, on motion of the defense, the defense had no right to pursue the subject on cross-examination.

Whether or not the Government was correct in conceding at the trial that the lineup procedures were erroneous, compare United States v Wade, supra, with Kirby v Illinois, — US —, 32 L Ed 2d 411, 92 S Ct — (1972), the accused was entitled to cross-examine the witnesses who identified him as to the effect of the pretrial confrontations on their ability to name him as their assailant. An accused has the right to develop all factors that tend to influence the credibility of a witness’s testimony. Alford v United States, 282 US 687, 75 L Ed 624, 51 S Ct 218 (1931). The military judge erred in curtailing the accused’s examination into the pretrial lineups.

Moreover, the error was prejudicial. Accused’s connection with the crimes charged was shown only by the witnesses’ in-court identifications. Discrediting those identifications was crucial to his case. Compare United States v Ketchem, 420 F2d 901 (CA 4th Cir) (1969). The dangers inherent in eyewitness identifications and pretrial lineups have been well documented. United States v Wade, supra, at page 228. The refusal to permit the identifications to be tested by appropriate cross-examination seems error of at least the same gravity as that involved in Smith v Illinois, 390 US 129, 19 L Ed 2d 956, 88 S Ct 748 (1968), in which denial of cross-examination as to a witness’s real name was held prejudicial. The military judge’s rulings effectively prevented the defense from inquiring into the basis of the witnesses’ identifications.

It is suggested that no prejudice inured to the accused in this case, as the military judge received an offer of proof-from the defense counsel concerning what his cross-examination would bring forth and accepted such representations as true in reaching his findings. We reach a contrary conclusion from the record, for, as we interpret the military judge’s rulings, he was of the opinion that evidence of the conditions under which the pretrial lineup was conducted could not, in view of its illegality, be considered for any purpose. In consequence, and consistent with his former ruling as to cross-examination, he declined to consider the conditions under which it was held in connection with his findings.

The decision of the Court of Military Review is reversed and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Judge Duncan concurs.