RATCLIFF v. STATE, 49 Ala. App. 77 (1972)

RATCLIFF v. STATE, 49 Ala. App. 77 (1972)
268 So.2d 858

Robert RATCLIFF v. STATE.

1 Div. 194.Court of Criminal Appeals of Alabama.
August 15, 1972.Rehearing Denied September 12, 1972.

Appeal from the Circuit Court, Mobile County, William D. Bolling, J.

M. A. Marsal, Emmett R. Cox, Mobile, for appellant.Page 78

Testimony in court of identification of the defendant at a pretrial lineup at which the defendant did not have counsel is inadmissible, absent a showing of a knowing and intelligent waiver of the right to counsel. United States v. Wade,388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California,388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. There can be no knowing and intelligent waiver of counsel unless the accused is advised that if he is indigent an attorney will be appointed to represent him. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694. Admission of evidence of identification at an unconstitutional lineup requires a reversal and a new trial unless such evidence is harmless beyond a reasonable doubt. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951,18 L.Ed.2d 1178; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

The determination of whether there had been an intelligent waiver of the right of counsel must depend in each case upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused. United States v. Hayes, 4 Cir., 385 F.2d 375. Where an in-court identification has an independent origin, the prior identification at a lineup where the accused was not represented by counsel does not constitute reversible error. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,18 L.Ed.2d 1178; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951,18 L.Ed.2d 1178.

ALMON, Judge.

Appellant was convicted of carnal knowledge of a girl under twelve years of age and his punishment was fixed at thirty years in the penitentiary.

The incident occurred at the home of the victim during the night of August 11, 1970. She gave a description of her assailant to the police which led to the apprehension of appellant. A line-up was conducted that same night which resulted in the appellant’s being identified as the guilty party.

Appellant’s sole contention on appeal was that he was not accorded the right to counsel at the time of the line-up as required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263,87 S.Ct. 1951, 18 L.Ed.2d 1178. Since this case was submitted, the United States Supreme Court has on June 7, 1972, rendered a decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877,32 L.Ed.2d 411, which is dispositive of the issues in this cause.

Therefore, on the authority of Kirby, supra, the judgment appealed from is due to be and is hereby

Affirmed.

CATES, P. J., and TYSON and HARRIS, JJ., concur.