287 A.2d 657

Larry Thomas BROKENBROUGH, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Jan. 28, 1972.

Samuel H. Lewis of Twilley, Barrett & Lewis, Dover, for defendant below, appellant.

Myron T. Steele, Jr., Deputy Atty. Gen., Dover, for plaintiff below, appellee.

Before WOLCOTT, C. J., and CAREY and HERRMANN, JJ.

HERRMANN, Justice:

In this robbery case, the defendant contends that his Sixth Amendment right to counsel was violated by the absence of counsel at three out-of-court identifications by the victim.

Two out-of-court identifications involved a showing of photographs to the victim by the police both before and after the arrest. As we have held in Reed v. State, Del.Supr., 281 A.2d 142 (1971), the presentation of photographs to the victim by the police for identification purposes *658does not constitute such “confrontation” as to come within the Sixth Amendment guaranty.

A third out-of-court identification was made by the victim when she participated with a police officer in a one-hour random surveillance* of pedestrians passing the police car parked on a busy street. The defendant contends that this identification also violated his Sixth Amendment right to counsel. For the reasons stated in Reed, we are of the opinion that the street identification, likewise, was not such “confrontation” as to come within the Sixth Amendment guaranty. But if there were any doubt about it, we are satisfied that the in-court identification had an “independent origin” within the test of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See Jenkins v. State, Del.Supr., 281 A.2d 148 (1971). At the time of the robbery, the victim had the unmasked face of the defendant in close view, in a well lighted store, for about IS minutes.

We have also considered the Fourteenth Amendment question of whether in the light of the totality of the circumstances, the out-of-court identifications were “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). After considering all of the circumstances, we are satisfied that none of the out-of-court identification procedures adopted here was impermissibly suggestive in violation of due process under the Simmons rule.

Affirmed.

Brokenbrough v. State
287 A.2d 657

Case Details

Name
Brokenbrough v. State
Decision Date
Jan 28, 1972
Citations

287 A.2d 657

Jurisdiction
Delaware

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!