delivered a lengthy bench opinion. The judge divided his consideration of the issues raised into three discrete rulings: the admissibility of the photographic identifications; the admissibility of the arraignment viewings and identifications; and the admissibility of the "line-up" identifications.
The photographic identifications were held admissible over the objections of defense counsel, who contended that the circumstances under which they were made were impermissibly suggestive.
The second issue addressed by the trial judge was the conduct of the arraignment viewing. Despite the defense's contention that under the circumstances the viewing was inherently unfair, the trial judge ruled that the evidence of the identifications made by three witnesses at the arraignment was admissible. He conditioned this ruling on the proviso that the State was bound to permit the defense to prove that Eddie Johnson had been tried for and acquitted of the charges brought at the arraignment. Under these circumstances the State elected not to use the evidence of the arraignment identifications. Finally, the trial judge ruled that the line-up conducted shortly after the arraignment was not unfair and that the resulting identifications were admissible. He did, however, exercise his discretion under N.J.R.Ev. 4 to exclude it as merely cumulative.
Eddie Johnson clearly advanced his theory that the cumulative process of pretrial identifications rendered the five witnesses involved incompetent to identify Eddie Johnson in court, but the New Jersey courts have rejected this argument.
It is the cumulative effect of the procedures that most concerns this Court. The inquiry must be divided into two issues: were the pretrial identification procedures employed impermissibly suggestive, and if so, did the State show by clear and convincing evidence that the witnesses had an independent basis for the challenged in-court identifications? Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 739 (3rd Cir.), cert. denied, 414 U.S. 878, 94 S. Ct. 121, 38 L. Ed. 2d 123 (1973).
Two of the witnesses whose incourt identifications are challenged here were exposed only to a single photographic viewing of Eddie Johnson in the weeks following the robbery. John Dunkirk and George Florence both identified S-10 from a group of some sixteen photographs displayed to them by Officer Del Vecchio several days after the robbery. Each related the circumstances of this identification at the pretrial hearing and at trial, as did Officer Del Vecchio. It is conceded that there were elements of suggestion in the framing of the photographic array, since only Eddie Johnson's photograph bore the legend "Rob." Indications of other crimes appeared on the face of other photographs in the group. After a careful review of the witnesses' testimony concerning the circumstances under which they viewed the array, and the police officers' testimony regarding its composition, this Court is nevertheless satisfied that the trial judge ruled correctly in permitting the men to testify, subject as they were to cross-examination. Simmons v. United States, supra, 390 U.S. at 384, 88 S. Ct. 967. The testimony of Florence and Dunkirk identifying Eddie Johnson in court and recounting the circumstances of the earlier consistent photographic identification bears no constitutional infirmity.
The testimony of John Pritchard, Mary Shuart and Ida Dunkirk is another matter. The pretrial identification proceedings involving these witnesses demonstrate many of the elements of suggestiveness likely to lead to a "very substantial likelihood of irreparable misidentification," Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401 (1972). Each of these witnesses saw the robbers for a few minutes in the relatively dim lighting of the tavern. None of these witnesses gave clear and accurate descriptions of the robbers to the police. Mary Shuart and Ida Dunkirk were both exposed to a photospread containing S-10 within days of the robbery. Neither selected S-10 as representing a robber. John Pritchard was exposed to photo arrays containing S-10 twice, also within days of the crime. He too failed to pick out that photo as depicting a robber.
It was at this point that these three witnesses, along with Dorothy Pritchard, were taken to Municipal Court for the surreptitious viewing of George and Eddie Johnson. For Eddie Johnson, this viewing was more closely akin to a show-up Stovall v. Denno, supra, than to a line-up. The witnesses expected to see the robbers. Two of them had already selected photographs of George Johnson. The arraignments were routine and minor with the significant exception of the Johnson brothers' case, an armed robbery virtually identical to that which the witnesses had seen. As if to eliminate any doubt whatsoever, the police chief went to the bench as the case was called. The bail on Eddie Johnson was set at a high figure, and his prior criminal record was aired.
For petitioner Eddie Johnson, this set of circumstances was highly suggestive. He was brought before the witnesses and arraigned on a similar charge in the company of a man whose picture had already been identified. His criminal record was discussed and high bail was set. Then a "line-up" was staged involving virtually the identical cast which had passed before the witnesses moments before.
A view of a suspect at an unrelated preliminary hearing by a witness in a case still under investigation may be unduly suggestive and a violation of due process. United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1349-1351 (3rd Cir. 1972), cert. denied, 415 U.S. 927, 94 S. Ct. 1434, 39 L. Ed. 2d 484 (1974); United States v. Lipowitz, 407 F.2d 597, 599 (3rd Cir. 1969). Here the staged viewing of Eddie Johnson in the company of a previously-identified culprit, as they both answered to similar but unrelated charges before a judge, was highly suggestive. The subsequent line-up, rightly characterized by the trial judge as "cumulative," merely served to reinforce the previously weak identifications made by the three witnesses. As the Supreme Court commented in Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 1127, 1129, 22 L. Ed. 2d 402 (1969):
The suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify petitioner whether or not he was in fact "the man." In effect, the police repeatedly said to the witness, " This is the man." See Biggers v. Tennessee, 390 U.S. 404, 407 [88 S. Ct. 979, 980, 19 L. Ed. 2d 1267] (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process.