People v. Adair

Opinion

DUNN, J.

After a nonjury trial, appellant was found guilty of first degree robbery (Pen. Code § 211), as fixed by the court. Proceedings were suspended and appellant ordered placed on probation. His appeal is from that order (Pen. Code § 1237, subd. 1). His only contention is that photographs of him were exhibited to witnesses at a time when defense

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counsel was not present, thereby depriving him of his constitutional rights.

On the night of May 20, 1967, appellant, at gunpoint, held up Mr. Sousa, manager of a market in Glendale, and obtained the market’s receipts. At the preliminary hearing the manager and two fellow employees, McShane and Jones, identified appellant as the robber. Each had observed appellant for a number of minutes during the holdup and described his height, weight, distinguishing marks and clothing. During the cross-examination of Sousa and Jones at the preliminary hearing, appellant’s counsel asked if photographs had been shown to them by his associate attorney. They stated photographs had been shown and Sousa testified he also was shown photographs by the investigating police officer.

At the trial, the transcript of testimony given at the preliminary hearing was received in evidence by stipulation, and the prosecution then rested. Appellant based his defense upon an alibi. He testified he was at a party; his testimony was corroborated by several witnesses. The associate attorney was then called and testified that he had shown photographs to Sousa and McShane and attempted to show them to Jones, but Jones would not be interviewed. He testified Sousa did not recognize appellant in any photograph but that McShane correctly identified his picture. In rebuttal, respondent called the investigating police officer who testified that on May 31 and June 1, 1967, (apparently before the showing of pictures by the attorney mentioned) he exhibited 20 photographs to McShane and Sousa, respectively, and each correctly selected a single photograph of appellant from among them. The 20 photographs were then received into evidence. They were of adult; male Negroes, as is appellant, and all were in the same age group as appellant.

At the trial, appellant made no objection to the identification testimony nor did he object to the introduction, on rebuttal, of the prosecution’s 20 photographs. He here contends that his failure to object is excused. Admittedly, he stipulated to the introduction of the transcript of testimony given at the preliminary hearing; this contained the testimony of Sousa, McShane and Jones identifying appellant as the robber. He now claims his failure to object is excused because it was not until the prosecution’s rebuttal testimony was admitted that any basis for earlier objection became apparent. It then was too late. This claim is not entirely sound, for Sousa testified at the preliminary hearing, as earlier pointed out, that the investigating officer had shown him photographs. Appellant was thus alerted to that fact and easily could have declined to stipulate to the use of the preliminary transcript, could have objected at trial to any identification testimony and, by