People v. Nichols

CONLEY, P. J.

A unanimous jury found Donnie Ray Nichols guilty of first degree robbery; in broad daylight the defendant held up the bartender of the Arcade Tavern in downtown Sacramento, and, at gunpoint, forced him to deliver approximately $100 from the cash register; the defendant did not wear a face covering or attempt to disguise himself in any way; he approached the bartender in the presence of witnesses and when he was asked what he would like he said, “Your money.” He then calmly left the bar, walked a short distance, and was picked up by a confederate in a nearby alley and whisked away to Marysville in a green ear ; the defendant was later picked up and jailed by law enforcement officers in the latter town. The evidence, it seems to us, was clear and convincing—not only the People’s account of the crime but the defense’s awkward attempt to establish an alibi, which was so lacking in convincing quality that it tended to strengthen the ease against the defendant.

Able defense counsel do not contend that the evidence in the ease, if all of it were properly received, is insufficient to justify the conviction; they claim that constitutional rights exist in favor of the defendant in connection with the lineup which confirmed his identification, and, as a result, that the evidence of identification should not have been received at the trial; if this contention is sustained, they argue that there

[61]

would not be left sufficient evidence of identification to permit the conviction to stand. We do not believe that the point attempted to be made by the defense is sound for the reasons hereinafter stated.

The general objection to the evidence of identification is thus divided in appellant’s opening brief: (1) it is claimed that defendant was deprived of effective representation by counsel at a lineup viewed by the witnesses, and (2) the in-court identifications of defendant were the product of the illegal lineup and, therefore, inadmissible. In our opinion, neither contention is correct. In order to permit a comprehensive and applicable assay of these contentions, it is necessary to review briefly the evidence received at the trial; in this connection, it is our duty to state such evidence most favorably to the respondent.

A man without mask or other disguise entered the Arcade Tavern at the corner of 9th and “J” Streets in Sacramento in the early afternoon of January 31, 1968. The bartender, Bruce Graham, was on duty and there were three patrons seated at the bar—an elderly man and a woman and a young lady named Sharon Adams. The young man who entered the tavern proceeded to a point near the cash register at the middle of the bar, pulled a gun, which, according to the witnesses, resembled the Luger pistol hereinafter referred to and forced the bartender to give him the paper money in the cash register, which approximated $100. The holdup man was cool during the whole incident, including his slow exit. After he had left, Sharon Adams stepped outside the barroom and looked down the street. She saw a man wearing a tan jacket a block away on “I” Street, and momentarily thought that he was the robber as the young man who held up the bar, according to her memory, had been wearing a tan jacket.