People v. Keel

California Court of Appeal Apr 24, 1969 No. Crim. 14803Published

Before: Kaus

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Holding. The court held that a defendant cannot raise the issue of lineup fairness for the first time on appeal when they failed to object or challenge the identification process during the trial.

Issues

Whether a defendant may challenge the fairness of a lineup on appeal when no objection was made at the trial level.
Whether the prosecution bears the burden of proving the fairness of a lineup in the absence of a challenge by the defense.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Nothing of the kind having been done, the point should not be available on appeal.”

KAUS, P. J.

Defendant was convicted of burglary and sentenced to state prison. The only question posed by appellant is whether his conviction is constitutionally defective because the record affords no evidence whatsoever that a lineup, at which the victim of the burglary identified defendant, was fair. Neither, for that matter, was there any evidence that the lineup was unfair. The question raised, then, is not whether in the event of conflicting evidence or conflicting inferences the People or the defendant have the burden of persuasion on the question of fairness. (Evid. Code, § 115.) Rather, it is a problem of who has the burden of going forward with some evidence on the issue. (Evid. Code, § 110.) However, for reasons stated below, we do not reach the issue. The burglary in question was committed February 8, 1967. The preliminary hearing at which the victim testified concerning the lineup was held on March 27. The trial started on June 21, 1967. On that date a stipulation that the transcript of the preliminary hearing could be considered as evidence was entered into. The trial then resumed on July 27 and concluded on August 3.

Stovall

Denno,

388 U.S. 293, 299-302 [18 L.Ed.2d 1199, 1204-1206, 87 S.Ct. 1967], on which defendant must necessarily rely as the major premise to his point, was decided on June 12, 1967. This is therefore not a ease in which he can claim that lack of foreknowledge of the law prevented him from making a proper record. (Cf.

People

Blackburn,

260 Cal.App.2d 35, 44 [66 Cal.Rptr. 845].)

Stovall

had been decided more than seven weeks before the trial in the instant case concluded.

The entire testimony concerning the lineup consisted of the following questions and answers elicited on cross-examination: “. . . Q. And did you identify somebody off of the stage as the people who had been taking your stereo-television out and who had put it back? A. Right. Q. All right. How many did you identify at that time? A. Two. Q. Were they in the same lineup, or was there more than one lineup ? A. There was one lineup. Q. How many were there on the stage, on this one lineup ? A. About seven or eight people. Q. All right. Now, was it only one time that there were seven or eight people on the stage, or were these seven or eight asked to leave and then

People v. Keel

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KAUS, P. J.

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