For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Francis, J. (concurring). Justice Proctor joins in this concurring opinion. Francis and Proctor, J.J., concurring in result.
The Appellate Division, with one judge dissenting, affirmed the defendant Mustacchio's armed robbery conviction. 109 N.J. Super. 257 (1970). He appealed to this Court as of right under R. 2:2-1(a)(2). A codefendant, Anthony D'Agostino, was acquitted by the jury and is not now before us.
On April 4, 1967, two men entered David Goffman's pharmacy and committed an armed robbery. One of the men had a shotgun and the other kept his right hand in his pocket, leaving the impression that he also was armed. In addition to Goffman, a young man named William Bell was in the pharmacy's phone booth and witnessed the crime. While the man with the shotgun covered Goffman, the other man emptied the cash register and then accompanied Goffman to the rear of the store where he emptied a metal box containing cash. He then cut a telephone wire and left with his partner. The police were called and were given descriptions of the two holdup men. Goffman gave a description of the man who emptied the cash register and the
metal box, later identified as Mustacchio, but Bell, at that point, said he was unable to give a description though he would later look at some mug shots. Both Bell and Goffman gave descriptions of the man with the shotgun whom they later identified as D'Agostino.
On April 5, 1967, the day following the robbery, Goffman was shown a packet of photographs. He identified the defendant Mustacchio as the man who had taken the money from the register and the box. Bell was also shown the photographs, independently of the showing to Goffman, and while he picked Mustacchio as looking very much like one of the robbers, he wanted to withhold positive identification until he saw him in person. On April 7, 1967 there was a lineup at police headquarters of five men including Mustacchio. Goffman immediately identified Mustacchio as the robber who took the money. Thereafter Bell independently viewed the lineup and identified Mustacchio as the robber who had accompanied Goffman to the rear of his pharmacy. At the trial, both Goffman and Bell gave firm and positive identifications of Mustacchio as one of the two men who committed the armed robbery.
The primary point advanced by Mustacchio in support of his appeal is that the pretrial identifications violated his constitutional rights. He stresses that he had no counsel at the lineup and he relies heavily on United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). See also Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). There the Supreme Court held that a postindictment lineup without notice to the accused's appointed counsel was illegal, that the admission of a later in-court identification was erroneous unless it had a sufficient untainted independent origin, and that if the in-court identification had no such origin its admission was cause for reversal unless shown to have been harmless. Here Mustacchio's lineup occurred while the investigation was still under way prior to indictment and differing views have been expressed as to the applicability of
Wade to such preindictment situations. Compare People v. Palmer, 41 Ill. 2 d 571, 244 N.E. 2 d 173 (1969) with People v. Fowler, 1 Cal. 3 d 335, 82 Cal. Rptr. 363, 461 P. 2 d 643 (1969); Joyner v. State, 7 Md. App. 692, 257 A. 2 d 444 (Ct. Sp. App. 1969); Hayes v. State, 46 Wis. 2 d 93, 175 N.W. 2 d 625 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2 d 738, cert. denied, 400 U.S. 919, 91 S. Ct. 173, 27 L. Ed. 2 d 159 (1970). See State v. Sinclair, et al., 49 N.J. 525, 545 fn. 1 (1967); State v. Matlack, 49 N.J. 491, 499 fn. 1, cert. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). State v. Moore, 111 N.J. Super. 528, 532 (App. Div.), certif. denied, 57 N.J. 210, 271 A. 2 d 5 (1970); State v. Edge, 111 N.J. Super. 182, 187 (App. Div. 1970), appeal pending in this Court, September Term 1970; State v. Thomas, 107 N.J. Super. 128, 134 (App. Div. 1969); Notes, 36 U. Chi. L. Rev. 830, 835 (1969); 47 Neb. L. Rev. 740, 747 (1968).
We need not pursue the foregoing inquiry since the lineup here admittedly took place before Wade was decided on June 12, 1967. In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2 d 1199 (1967) the Supreme Court held that the requirement of counsel at a lineup, as mandated by Wade, would not be applied retroactively to lineups conducted before the opinion in Wade was handed down. Mustacchio's counsel suggests that even though we are not obliged by any decision of the Supreme Court to apply Wade to the case at hand we should do so on our own. Wade imposed a requirement which was foreign to the New Jersey precedents and our courts have consistently declined to apply it to pre- Wade lineups (State v. Sinclair, 57 N.J. 56, 67 fn. 1 (1970); State v. Sinclair, et al., supra, 49 N.J. 525; State v. Matlack, supra, 49 N.J. 491); we find nothing in Mustacchio's case which would fairly call for an exceptional approach. Nor do we find any basis for his suggestion that, even apart from Wade, he was entitled to counsel at the lineup under the holdings in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964). Those cases dealt with custodial interrogation, particularly the admissibility of incriminating statements made during such interrogation, which is not at all our concern here. Cf. State v. King, 44 N.J. 346, 356-358 (1965); United States v. Wade, supra, 388 U.S. at 221-224, 87 S. Ct. 1926, 18 L. Ed. 2 d at 1154-1155.
The defendant also contends that he was denied due process in the pretrial identifications and cites Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2 d 1247 (1968) and Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2 d 402 (1969) which, in turn, applied the principles enunciated in Stovall v. Denno, supra, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2 d 1199. In Stovall the accused was brought handcuffed to a hospital room where he was identified by the victim. The identification occurred before Wade and the question raised by the defendant was whether the confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification" as to amount to a denial of due process. In passing on this issue the Court noted that "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, * * *." 388 U.S. at 302, 87 S. Ct. at 1972, 18 L. Ed. 2 d at 1206. It found no constitutional violation, pointing out that an immediate hospital confrontation was imperative and that "the police followed the only feasible procedure" in taking the defendant to the hospital room. Cf. State v. Simmons, 52 N.J. 538, 542-543 (1968), cert. denied, 395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2 d 241 (1969).
In Simmons v. United States, supra, there was an armed robbery of a federally insured savings and loan association. The F.B.I. had inconclusive clues which led to Andrews and Simmons. They showed snapshots of Andrews and Simmons to savings and loan employees who at that time identified Simmons and also later identified him in court. They did not identify Andrews. The Court held that there
had been no denial of due process. It refused to prohibit all use of initial identification by photograph, stating that each case must be considered on its own facts and "that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S. Ct. at 971, 19 L. Ed. 2 d at 1253.
In Foster v. California, supra, the Court, with four justices dissenting, did find that there had been an unnecessarily suggestive lineup in violation of due process. But there the defendant, a tall man dressed in a jacket similar to that worn by the robber, was placed in a three-man lineup with two short men not wearing similar jackets. Even then the victim could not positively identify the defendant nor could he do so in a one-to-one confrontation. Later, there was a second lineup in which the defendant was the only one who had also appeared in the first lineup and, in the language of Justice Fortas, this "finally produced a definite identification." 394 U.S. at 443, 89 S. Ct. 1127, 22 L. Ed. 2 d at 407. The particular circumstances in Foster readily distinguish it from the matter at hand and from the many instances in which our courts have found confrontations in lineups and elsewhere to have been conducted fairly and without unnecessary suggestiveness in violation of due process. See State v. Sinclair, supra, 57 N.J. 56; s.c., 49 N.J. 525; State v. Simmons, supra, 52 N.J. 538; State v. Matlack, supra, 49 N.J. 491; State v. Thomas, supra, 107 N.J. Super. 128; State v. Mars, 107 N.J. Super. 36 (App. Div. 1969), certif. denied, 55 N.J. 319 (1970).
During the trial, Goffman was about to testify with respect to his pretrial identifications when Mustacchio's counsel objected and stated that he wanted to be heard "in terms of United States v. Wade." He asked the court to review the circumstances surrounding the pretrial ...