The questions raised by defendant's motion to suppress in this case are:
1. Does a post-indictment photographic lineup, held without the presence of counsel, violate defendant's Sixth Amendment rights? (No New Jersey court has addressed itself specifically to this subject.)
2. Does furnishing discovery of such photographic lineup three days prior to trial constitute "egregious" prosecutorial conduct?
The answers to both questions above are in the negative. Defendant's motion is denied.
On March 4, 1982 defendant Emerick Carter was indicted and charged with having committed burglary and theft on February 4, 1982. The next day, on March 5, 1982, a photographic lineup was conducted in the absence of defense counsel. Prior to trial, which was scheduled for June 7, 1982, a pretrial conference was held, at which no notification of the post-indictment photographic lineup was given to defense counsel.
Three days prior to trial the prosecutor announced that through inadvertence and by re-reading the file, he discovered the existence of the photographic lineup proceedings and thereafter promptly disclosed the same to defense counsel.
The defense argues that an attorney should be present at the "critical stage" of the proceedings and further that getting the discovery from the prosecutor three days prior to trial amounts to "egregious" prosecutorial conduct sufficient to warrant the suppression of the out of court identification.
The State, on the other hand, maintains that such omissions and failure to supply the documents and photographs used in said lineup was not intentional or egregious, and that if it had known the photographs were in the file, it would have supplied them to defense counsel accordingly upon request.
The State also argues defendant was not prejudiced by the late disclosure, since adequate time was given to the defense before trial to review the photographs and the police reports in question. Consequently, the State contends there was no violation of "due process."
It is axiomatic that a defendant has a Sixth Amendment right to the presence of counsel at any "critical stage" of the proceedings.
The question, therefore, is whether a post-indictment photographic lineup is a "critical stage" in the proceedings requiring the presence of ...