Powers v. State

Murphy, C.J., delivered the opinion of the Court. On May 29, 1968 at approximately 3:35 p.m., Hyman Sussman was robbed at gun point of $304.00 at a pharmacy which he operated. On June 4, 1968 appellant was arrested and charged with the crime. On June 6, 1968 he was identified at a police lineup as the robber by Gwendolyn Keys, an eyewitness to the crime.

Thereafter, the case was set for trial on the morning of May 13, 1969. Appellant’s counsel was involved in a civil case that morning, and notified the court that he could not begin appellant’s trial until 2:00 p.m. that day. At approximately 1:30 p.m. appellant’s counsel again phoned the trial judge, telling him that his civil trial was still in progress and that he was therefore not certain when he would arrive. At the time the court received this message, the prosecutor, the Clerk and the jail guard had left for lunch and the message was not communicated to them.

The jail guard assigned to appellant’s case brought him into the courtroom in handcuffs at 2:00 p.m. The prosecuting witnesses — Sussman, Keys, and a detective— were present at that time and saw the appellant. The judge was not then in court. An unidentified person asked the jail guard whether the handcuffed man was the appellant Powers and the guard replied in the affirmative.

Neither Sussman nor Keys overheard the guard’s comment. Appellant’s counsel arrived in the courtroom at 3:00 p.m. to begin the trial, at which time it was decided to reschedule the trial for May 15. Upon learning that appellant had been brought into the courtroom by the jail guard and exposed to the view of the prosecuting witnesses, appellant’s counsel filed a motion to dismiss the indictment, alleging therein that appellant had been ⁴⁸⁹ “intentionally and deliberately exposed to view by the State to the alleged eyewitnesses;” that as counsel was not present at such confrontation, appellant had been denied the assistance of counsel; and that as a result, he could not “receive a fair and impartial trial” and had “been denied due process of law.” The motion sought alternative relief, namely a ruling by the court prohibiting the State from using Keys, Sussman and the detective as witnesses at the trial. The trial judge held an evidentiary hearing on appellant’s motion, at the conclusion of which he ruled that neither Keys nor Sussman heard the jail guard identify appellant Powers; and that there was no evidence to show that the State deliberately exposed appellant to the view of the prosecuting witnesses but, on the contrary, the incident was entirely due to inadvertence.

The court denied the motion to dismiss the indictment and refused to prohibit the prosecuting witnesses to testify at the trial. Appellant promptly filed a written appeal with the Clerk of the court from the court’s denial of his motion to dismiss the indictment. The case proceeded to trial before a jury over appellant’s objection. The corpus delicti was established through the testimony of Sussman.

He was not asked to, nor did he identify the appellant as the robber. Robert Cox, an employee of the pharmacy, testified that he was unable to make any identification of appellant as the robber. In view of appellant’s pretrial objection to the prospective in-court identification of him by Gwendolyn Keys, she first testified out of the presence of the jury