Brief for the Respondent in Opposition — Eubank v. Illinois

#\

&.

ee ee ee a ee x, ** ok) io -> a + ee ce i ‘: 2

INDEX

PaGE

SS. Pere ere err Cer ere rr errr Tr re Tye 1

SE i iNcanS Oee daa Vosee sa ON ees pceeterere 1

Constitutional Provisions Involved ................ 2

SS a errr me ury ey ee ra era srry 2

a, GE SI a i oo hin be ee ee Ra te eke 2-4

Reasons for Denying the Writ:

I. There Is No Right To Counsel At The Time

Of Pre-arrest Investigatory Identification Con-

PO 3 5 ER oe ERE Fe

II. If The Right To Counsel Did Extend To Pre-

Arrest Identification Confrontations, Then

Testimony About The Confrontation In The

Present Case Would Only Amount To Harm-

MRT CER Tee Pee eT Tee Ey tee

III. Petitioner Is Precluded From Raising The

Question Of His Right To Have Counsel At

The Pre-Arrest Confrontation Since He Never

Presented The Question To The Trial Court

ee er rr rrr

CS. eed oe oe cee ri eke vaeesaue kta a

CASES:

Bradford v. State, 164 S.E. 2d 264 (Ga. App. 1968),

cert. denied, 394 U.S. 1020 (1968) ..............

Bratten v. State, 257 A. 2d 230, 231 (Del. Sup. Ct.

| OPP eRe rere ee Cre ee U YT err rT rere

Bratten v. State of Delaware, 307 F. Supp. 643, 646

Fe es SO bs ka kes Ss eco Lda eadanatosaataves

11

12

15

10

HEN |

CRATE IE 9

set Sate ha ae AS ie de

a BSS DA mE Nan oh ae a

LLL CIT A ROLE OI LIT LED HOI ET IEE LORE

il.

Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.

2d 343 (1968), cert. denied, 393 U.S. 1034, reh. de-

alee, 306 UE T9595 CAPR) nck scons tate ie ineeees 10

Escobedo v. Illinois, 378 U.S. 478 (1964) .......... 6, 7

Gilbert v. California, 388 U.S. 263 (1967) ..... 5, 6, 7, 11

Hamilton v. Alabama, 368 U.S. 52 (1961) .......... 6

Henry v. Mississippi, 379 U.S. 448, 451-52 (1965) ..18, 14

Massiah v. United States, 377 U.S. 201 (1964) ...... 6

Miranda vy. Arizona, 384 U.S. 486, 444 (1966) ...... 6

People v. Cesarz, 44 Ill. 2d 180, 255 N.E. 2d 1, 4

bi) i Pn wre rere ewer re Cra er 7

People v. French, 33 Ill. 2d 146, 149, 210 N.E. 2d 540

(1965), cert. denied, 384 U.S. 1016 (1965) ........ 14

People v. Palmer, 41 Ill. 2d 571, 244 N.E. 2d 173

4: SPE Terre ree errr rey ero ee re Tee rey 7

Poole v. Commonwealth, 176 S.E. 2d 821 (Va. Sup.

es | nner eaten rare geste rary rer 14

Powell v. Alabama, 287 U.S. 45 (1932) ............. 6

Reese v. State, 457 S.W. 2d 877 (Tenn. Ct. of Crim.

“Age: TOR) ids sccceasn ards chen biy soe ae eae eo 14

Simmons v. United States, 390 U.S. 377, 384 (1968) 10

State v. Butler, 256 A. 2d 588, 590, 591 (Me. Sup.

| ener rrr er rrr err rer terre Corre ere 10

State v. Moore, 269 A. 2d 534, 536 (N.J. Super. Ct.,

App. Div., 1970), NJ. cert. dened, 57 N.J. 210,

Br) SE. BCA oe hc dees codec knee 9

State v. Tafoya, 454 P. 2d 145, 147 (Ariz. Sup. Ct.

i: err Err rrr core reer rere grrr ee rn 10

United States v. Davis, 399 F. 2d 948, 951-952 (2nd

Cir. 1968), cert. denied, 393 U.S. 987 (1968) ...... 8

see taaiai nein

iii.

United States v. Marcello, 423 F. 2d 993, 1005 (5th

Cir. 1970), cert. denied, 90 S. Ct. 2172 (1970) .... 18

United States v. Wade, 388 U.S. 218 (1967) ..... 5.6 ft

White v. Maryland, 373 U.S. 59 (1963) ............ 6

Williamson v. Commonwealth, 175 S.E. 2d 285 (Va.

as SRE? ona cae CCRRS ES ROMER U WAKER Ebi eA 14

Wright v. State, 457 S.W. 2d 55 (Texas Ct. of

Seek, “Ga. SUE? aatandcencnccedaeauetnietccaas 14

IN THE

Supreme Court of the United States

Octoser TERM, 1970

No. 1165

WILLIAM A. EUBANK,

Petitioner,

Vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

(On Petition for Writ of Certiorari to the

Supreme Court of Illinois)

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Supreme Court of Illinois is re-

ported at 46 Ill. 2d 383, 263 N.E. 2d 869 (1970).

JURISDICTION

The jurisdictional requisites are adequately set forth

in the petition.

2

CONSTITUTIONAL PROVISIONS

Petitioner relies on the Sixth and Fourteenth Amend-

ments to the Constitution of the United States.

QUESTIONS PRESENTED

1. ‘After this Court’s decisions in United States v.

Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388

U.S. 263 (1967), may testimony be admitted at trial re-

garding a pre-arrest confrontation for identification pur-

poses while petitioner was unrepresented by counsel?

2. Did the failure of petitioner’s trial counsel to ob-

ject to testimony about the counselless pre-arrest iden-

tification constitute a waiver of petitioner’s Sixth Amend-

ment rights?

STATEMENT OF THE CASE

On December 21, 1966, Mrs. Yolanda Kuba was rob-

bed in her own home in broad daylight by an armed

man who was dressed as a telephone company employee

but was otherwise undisguised (Tr. 9, 11, 38-39). Mrs.

Kuba estimated that the robber stayed in her home for

about 15 minutes; during most of that time she stared at

him, in spite of his warnings to hold her face down (Tr.

14, 17). Shortly after the armed robber drove away, Mrs.

Kuba called the Oak Lawn Police Department which

quickly sent several officers to her house under the com-

mand of Captain (then lieutenant) O’Brien (Tr. 17-18).

Mrs. Kuba immediately furnished a description of the

robber (Tr. 18).

On January 6, or 7, 1967, Captain O’Brien brought

Mrs. Kuba a container of 67 police photos; she viewed

3

several of the pictures before identifying one as being

a photograph of the man who robbed her (Tr. 60). Mrs.

Kuba next identified the armed robber on July 27, 1967,

when Captain O’Brien and an F.B.I. agent accompanied

her to a courtroom in the Federal Building in Chicago.

On one of the benches sat the petitioner and another

man, neither of whom were in the custody of the Oak

Lawn Police Department (Tr. 61-65). Mrs. Kuba, who was

the first person to enter the courtroom, stopped suddenly

and identified the petitioner as the man who had robbed

her (Tr. 22-23). No conversation occurred between pe-

titioner and his visitors in the courtroom, nor were any

directions given the petitioner; both parties simply

stared at each other (Tr. 23). Later on the same day,

Captain O’Brien arrested the petitioner for the crime com-

mitted on December 21, 1966 (Tr. 61-62).

Petitioner was subsequently indicted for armed robbery

in August, 1967, and was found guilty after a bench trial

on November 22, 1968. The trial judge, Hon. Richard J.

Fitzgerald, sentenced petitioner to imprisonment in the

state penitentiary for a term of not less than ten nor

more than fifteen years. In explaining his finding of

guilty, Judge Fitzgerald emphasized Mrs. Kuba’s pro-

longed unobstructed observation of the petitioner in her

home during the robbery, her ability to recall important

details and her certainty that petitioner was the same

man who robbed her on December 21, 1966:

THE COURT: I might say that the Court was

impressed by the method and manner in which this

witness testified, her ability to recall facts. I also

must consider the fact that she was in her home, in

surroundings that were natural to her. She was with-

in the cloistered walls of her home, as it were, and

if it was out on the street in unfamiliar surround-

4

ings, if the witness or the defendant had struck or

beaten her, if he had acted in such a manner which

would have riled her, these are factors that the Court

took into consideration.

Here we have a witness who is in her own home.

She is impressed by the gentlemanlyness of the de-

fendant. She is impressed by the gentle manner in

which he handled her. She is impressed by his dainty

walk, as it were.

MR. STEIN: None of which is in evidence that

the defendant has.

THE COURT: But the Court unfortunately has

been able to see the defendant walking in and about

the court room and these factors would have a ten-

deney of leading the Court to believe that this wit-

ness truly and correctly was able to identify the de-

fendant and under the facts and the cireumstances,

the lighting conditions within the confines of her

own home, the conditions under which the identifica-

tion was met, the manner in which the defendant

conducted himself all give rise to believe that the

witness had ample opportunities, was in an exception-

ally fine area in which to make an identification and

having been with the defendant for fifteen minutes

in a condition and atmosphere which at no time put

her in fear for her life which would in any manner

have a tendency to naturally affect her ability or

her senses, although the defendant had a gun he

didn’t seem to brandish it in any manner which

would put her in fear for her life. (Tr. 147-148)

The judge concluded his explanation with the following

words: “However, as I say the single identification was

in the Court’s opinion sufficient to warrant the identifi-

cation (finding) in this case.” (Tr. 152). Judge Fitzgerald

referred to the testimony about the pre-arrest confronta-

tion only as a corroborating episode which bolstered the

State’s case but which was not essential to the finding of

guilty (Tr. 141-143).

The remaining facts in the case are adequately set

forth in the petition.

wr

REASONS FOR DENYING THE WRIT

I.

THERE IS NO RIGHT TO COUNSEL AT THE TIME

OF PRE-ARREST INVESTIGATORY IDENTIFICA-

TION CONFRONTATIONS.

Respondent submits that the facts of the present case

do not raise the question of whether this Court’s rulings

in United States v. Wade, 388 U.S. 218 (1967), and Gil-

bert v. California, 388 U.S. 263 (1967) should be limited

to post-indictment confrontations or be extended to cover

pre-indictment situations. The identification confrontation

in the present case took place informally in a federal

courtroom before petitioner was even arrested on the

present charge and while the case was still in the investi-

gatory stage (Tr. 61-62). At the time of the confrontation,

no orders or questions were directed to the petitioner;

Mrs. Kuba and petitioner simply stared at each other in

silence (Tr. 23,. 61-65). While seated in the federal court-

room, petitioner was certainly not in the custody of the

Oak Lawn Police or any state officials. Indeed, it ap-

pears from the record that he was not in custody at all

since he returned home that day and was found there

when finally arrested (Tr. 62). Clearly, the facts here

present the issue of whether there is a right to counsel

in the pre-arrest, non-custodial investigatory stages be-

fore prosecution commences. Thus, the dispute between

those courts applying Wade only after indictment has oc-

curred and those courts which refuse to use indictment

as the limiting criterion, is not directly relevant to a

decision in the present case.

The Sixth Amendment itself guarantees the right to

counsel only to an “accused” in “all criminal prosecu-

6

tions.” Following from that phraseology, this Court’s ma-

jor decisions defining the right to counsel, including

Wade and Gilbert, have been limited to situations where

prosecution has actually begun in some form.

While reviewing its own string of right-to-counsel de-

cisions in the course of the Wade opinion, this Court

said: “In recognition of these realities of modern crim-

inal prosecution, our cases have construed the Sixth

Amendment guarantee to apply to “critical” stages of

the proceedings.” 388 U.S. at 224. The opinion then dis-

cussed the group of cases headed by Powell v. Alabama,

287 U.S. 45, in which the Court had found the period

from arraignment to trial to be “perhaps the most critical

period of the proceedings... .,” id at 57, during which

the accused “requires the guiding hand of counsel .. .,”

id at 69. Next cited were the cases following the rule of

Powell, ie: Hamilton v. Alabama, 368 U.S. 52 (1961);

White v. Maryland, 373 U.S. 59 (1963); and Massiah v.

United States, 377 U.S. 201 (1964). In each of these situ-

ations, criminal prosecution was already under way by

virtue of indictment, arraignment or preliminary hear-

ing. Justice Brennan, speaking for the Court, then re-

viewed the right-to-counsel cases founded upon Fifth

Amendment considerations, Escobedo vy. Illinois, 378 U.S.

478 (1964), and Miranda v. Arizona, 384 U.S. 486 (1966).

The holding in Escobedo permitted counsel whenever the

criminal process shifted from investigatory to accusa-

tory; the defendant there had been in police custody

when he requested counsel. In Miranda, the right to coun-

sel at custodial interrogations was carefully formulated;

it was to become effective whenever the police questioned

a person after he had been “taken into custody or other-

wise deprived of his freedom of action in any significant

way*.” 384 U.S. at 444. In footnote No. 4, Chief Justice

7

Warren explainted that this last quoted clause was what

the Court had meant by an “accusatory” investigation in

Escobedo.

All of these cases cited as precedents in Wade involved

various critical stages of criminal prosecutions already

in progiess, as, of course, did Wade and Gilbert them-

selves. The defendant Wade had been indicted, arrested

and given appointed counsel when the F.B.I. conducted a

showup without notice to defense counsel. Gilbert had

been indicted and had retained counsel when he was

put in a police lineup without his lawyer being present.

Thus, these two identification cases had progressed farth-

er along the line of prosecution than many of the earlier

right-to-counsel cases before they ran into Constitutional

trouble over the absence of defense counsel. Therefore, it

appears from all the above cases that an event such as

an identification confrontation can be regarded as a “crit-

ical” stage requiring counsel only after a defendant has

become the accused within the Escobedo and Miranda

- Rules. Certainly, none of this Court’s landmark decisions

have found a defendant’s right to counsel existent prior

to arrest, indictment or some other accusatory or cus-

todial event which signals the beginning of a prosecu-

tion.

Several state and federal courts have concluded that a

defendant has no right to counsel during investigatory

identification confrontations occurring prior to arrest. Il-

linois is one such state; its position on this subject is not

founded entirely upon People v. Palmer, 41 Tll. 2d 571,

244 N.E. 2d 173 (1969), a case where the defendant had

been confronted by the victim between arrest and indict-

ment, but rather is contained in People v. Cesarz, 44 Ill.

2d 180, 255 N.E. 2d 1, 4 (1969), a case quite similar to

as

atrmivond A.

wowed

ted ee

OO CR GPA ltr

ee

8

the present one. The defendant Cesarz was among 50 or

60 people around a Holiday Inn pool when a witness to a

murder-robbery was brought to the pool and asked if any-

one there fitted his composite picture of the murderer.

The witness picked out Cesarz and police asked him to

come inside where the witness definitely identified him;

Cesarz was then arrested. In rejecting a Gilbert challenge

to the identification evidence, the Supreme Court of IIli-

nois said: “It would be strange indeed to require counsel

in a ease such as this where defendant had not been

placed under arrest and was unaware (at the outset) that

he was being observed.” 255 N.E. 2d at 4.

In United States v. Davis, 399 F. 2d 948, 951 (2nd Cir.

1968), cert. denied, 393 U.S. 987 (1968), the defendant

was in custody for being a pedestrian on a Thruway when

the officer, suspecting the defendant of driving a stolen

ear, presented him to a toll booth attendant and asked

if the attendant had seen the young man driving a ear

earlier. This confrontation occurred without the presence

of counsel but before the stolen auto charge had been

made. The Court of Appeals in affirming the conviction

said that Wade and its companion decisions did not in-

tend to cover the situation where a confrontation oe-

curred before the accusatory stage had been reached as

depicted in Escobedo and Miranda. The court found that

the mere fact of custody for an unrelated crime did not

automatically trigger the Sixth Amendment right to

counsel; also, mere suspicion of guilt did not amount to

aceusation in the Escobedo-Miranda sense. In the opinion,

Judge Friendly stated that policemen should not be pre-

vented from reasonably investigating their suspicions

through such confrontations.

A Mstrict Court similarly refused to extend the Wade

rule to a pre-arrest identification confrontation in Bratten

9

v. State of Delaware, 307 ¥. Supp. 643, 646 (D. Del. 1969).

Police had summoned the robbery victim to a public inn

where four Negroes had heen involved in a minor auto

accident. After asking Bratten to remove his sun glasses,

the victim identified him and he was arrested. The court

declined to apply the Wade trilogy because the confron-

tation took place before defendant was accused of the

crime. The same conclusion had been reached in the case

on appeal by the Supreme Court of Delaware. Bratten v.

State, 257 A. 2d 230, 231 (1969).

Two state courts have decided cases which are almost

carbon copies of the present case. In State v. Moore, 269

A. 2d 534, 536 (N.J. Super. Ct., App. Div., 1970), Nu.

cert. denied, 57 N.J. 210, 271 A. 2d 5 (1970), the victim

of a street robbery was on his way to sign a complaint

on the day after the crime when he was told that some

people arrested earlier at the same address for another

charge were sitting in an adjoining courtroom. The de-

fendant and at least nine others were in the courtroom;

defendant had not been charged with the street robbery

and had come to court that morning from his uncle’s

home. The victim made the identification, the defendant

was arrested and the confrontation was brought out in

testimony at trial. Defense counsel did not object to the

identification testimony, but the court still considered

the Wade challenge on its merits, although noting that

defendant had waived his right to object. The court de-

cided the issue in the following words:

“Defendant misconceives not only the scope of

Wade doctrine but also the issue we are called upon

to decide in this case. That issue is not, as defend-

ant’s argument assumes, whether the Wade rule re-

quiring the assistance of counsel should be applied to

pre-indictment confrontations as well as post-indict-

ment confrontations.

FD CES ek I a I a fee or -

10

Here we need not reach or decide that question to

which the courts have given divergent answers... .

Where, as here, the out-of-court identification

takes place during the investigatory phase of the

ease, before the defendant is arrested or taken into

police custody, Wade does not in any event apply;

the presence of counsel is not required.*” (Footnote

omitted.) 269 A. 2d at 536.

The Supreme Judicial Court of Maine reached a similar

result in State v. Butler, 256 A. 2d 588, 590-591 (1969).

Other decisions upholding non-custodial or in-the-field

confrontations against challenges based upon the Wade

trilogy are Bradford v. State, 164 S.K. 2d 264 (Ga. App.

1968), cert. denied, 394 U.S. 1020 and Commonwealth v.

Bumpus, 354 Mass. 494, 238 N.E. 2d 343 (1968), cert. de-

nied, 393 U.S. 1084, reh. denied, 393 U.S. 1112. See also

State v. Tafoya, 454 P. 2d 145, 147 (Ariz. Supreme Ct.

1969), holding that a post-information showup without

counsel, preceded by photographic identification, is not a

critical stage of the prosecution and therefore its ad-

mission into evidence was not prejudicial error.

Respondent agrees with the many decisions cited above

that all identification confrontations are not per se a

“eritical stage” of a criminal proceeding. Those confron-

tations occurring before arrest, as the one in the present

case, are especially outside the “critical” area since no

prosecution can be said to have begun during this early

investigatory stage. If the Court were to prohibit pre-

arrest identification confrontations without counsel, then

by logical extension even on-the-scene identification eon-

frontations would become impossible and police investi-

gative procedures would be unduly restricted. In Sim-

mons v. United States, 390 U.S. 377, 384 (1968), this

Court found initial identification by photograph to be

11

such a valuable investigative tool, “both for apprehend-

ing offenders and for sparing innocent suspects the ig-

nominy of arrest,” that it could not be prohibited as be-

ing hazardous to the suspect, except in the most sugges-

tive circumstances. This argument can be made even

more strongly in favor of personal identification con-

frontations prior to arrest. Mindful of the deep public

interest in effective criminal law enforcement, respondent

submits that petitioner had no right to counsel in his

confrontation with Mrs. Kuba and that his petition should

therefore be denied.

(Petitioner does not question the integrity of his identi-

fication confrontation under Stovall v. Denno, 388 U.S.

293 (1967). However, the Tlinois Supreme Court applied

Stovall to the present case in rendering their opinion

and found that the confrontation was not unduly sugges-

tive. People v. Eubank, reproduced in Petition, App. 4-5.

ae:

IF THE RIGHT TO COUNSEL DID EXTEND TO PRE.

ARREST IDENTIFICATION CONFRONTATIONS,

THEN TESTIMONY ABOUT THE CONFRONTA-

TION IN THE PRESENT CASE WOULD ONLY

AMOUNT TO HARMLESS ERROR.

This Court has stated that testimony concerning an

improper identification confrontation can escape the con-

Sequences of the per se exclusionary rule if the

testimony is “‘harmless beyond a reasonable doubt.’

Chapman v. State of California, 386 U.S. 18, 24.” Gilbert

v. California, 388 U.S. at 274. In the present case, Mrs.

Kuba, the victim, viewed the armed robber at close range

in broad daylight for about fifteen minutes (Tr. 14, 17).

rain «gee RTA ag Els ONE CARE PIC AE Ta wh oS SUTRA E™ ASS

12

She recalled specific details of the robber’s dress and

mannerisms (Tr. 38, 39), and she picked petitioner’s pic-

ture out of a group of 67: police photographs long before

the confrontation took place in the federal courtroom

(Tr. 60). The trial judge, as the trier of fact sitting with-

out a jury, gave great weight to Mrs. Kuba’s ability to

remember details about the robber which could not have

come from the confrontation. (See excerpt from judge’s

findings reproduced in the Statement of the Case, page

3.) In his own words, Judge Fitzgerald considered the

confrontation on July 27, 1967, only as “corroborating

evidence,” and, under Illinois law, corroborating evidence

was not needed to support Mrs. Kuba’s identification and

the court’s judgment (Tr. 141-148). Thus, if petitioner’s

right to counsel had been violated, the resulting testi-

mony was non-essential evidence and its admission con-

stituted harmless error beyond a reasonable doubt.

BEL.

PETITIONER IS PRECLUDED FROM RAISING THE

QUESTION OF HIS RIGHT TO HAVE COUNSEL

AT THE PRE-ARREST CONFRONTATION SINCE

HE NEVER PRESENTED THE QUESTION TO THE

TRIAL COURT FOR ITS DETERMINATION.

Petitioner’s trial counsel did not move to suppress evi-

dence of the pre-arrest identification confrontation, and

did not object to testimony about the event (Tr. 6-27, 55-

65, 67-73, 131-146). Nor did his second defense lawyer

raise this issue in the motions to vacate judgment and

motions for a new trial (C. 35-67). There is no indica-

tion either in the record or in the petition that the two

lawyers retained by petitioner were ignorant of the Wade

trilogy or so lax in performing their duties that they

“4 aL RE SRIAITTEREAE SO eas RE ATR

13

negligently failed to mention these cases to the trial

court. In the absence of evidence to the contrary, we

must presume that petitioner’s two lawyers made a prop-

er professional judgment not to include a Gilbert chal-

lenge in their trial and post-trial strategies. Such a de-

termination is binding on the defendant-petitioner. Henry

v. Mississippi, 379 U.S. 443, 451-452 (1965); United States

v. Marcello, 423 F. 2d 993, 1005 (5th Cir. 1970), cert. de-

nied, 90 S. Ct. 2172 (1970).

In Henry, this Court held that if the state’s insistence

on compliance with a procedural rule serves a legitimate

state interest, then the defendant’s procedural defaults

may constitute waiver of his federal rights. Finding that

the Mississippi contemporaneous objection rule clearly

served a legitimate state interest, this Court observed

that the purpose of the rule might have been satisfied in

that case by the petitioner’s motion for a directed verdict

which notified the trial judge of the erroneous admission

of the officer’s testimony. This issue was not specifically

decided, however, and the case was reversed and remand-

ed because the record suggested that defense counsel, as

part of their strategy, may have deliberately by-passed

the opportunity to make timely objections. The by-pass

issue had to be determined before final decision on the

waiver question could be made; if deliberate by-pass were

found, then petitioner’s Fourth Amendment rights would

have been waived, according to the Henry opinion.

In the present case, there may actually have been

a deliberate by-pass of the Gilbert issue. Regardless,

Illinois too has a legitimate interest in demanding that

trial errors involving Constitutional rights be brought

to the trial judge’s attention. Speaking of this rule, the

Supreme Court of Illinois has said: “. . . compliance

sal EET a

Gael aauaaaeaa

14

therewith focuses the trial court’s attention on alleged

error, thereby quite possibly obviating the necessity for

appeals and reversals.” People v. French, 33 Ill. 2d 146,

149 (1965), cert. denied, 384 U.S. 1016. Today, with the

system of criminal justice subjected to such great

stresses, the state’s interest in limiting whenever possi- ~

ple the merry-go-round procedure of trial, reversal and

retrial is even stronger. In the present case, unlike Henry,

defense counsel never raised the Gilbert challenge at any

time before an appeal was taken. By attempting to raise

this question on appeal, petitioner is seeking to nullify

the legitimate state interest in orderly procedure—an

attempt not allowable under this Court’s decision in

Henry.

The Sixth Amendment right defined in the Wade tri-

logy is subject to waiver just as is the Fourth Amend-

ment right involved in Henry. Several courts have al-

ready held that the question of improper identification

of a defendant can be waived by failure to object or re-

quest a hearing. Reese v. State, 457 S.W. 2d 877 (Tenn.

Ct. of Crim. App. 1970); Wright v. State, 457 S.W. 2d

55 (Texas Ct. of Crim. App. 1970); Poole v. Common-

wealth, 176 S.E. 2d 821 (Va. Sup. Ct. 1970); Williamson

y. Commonwealth, 175 S¥® 2d 285 (Va. Sup. Ct. 1970).

15

CONCLUSION

For the above reasons, respondent prays that the Peti-

tion for Writ of Certiorari be denied.

Respectfully submitted,

Wiuiam J. Scort,

Attorney General,

State of Illinois.

JAMES B. ZaGEL,

EK. James GILpEA,

Assistant Attorneys General,

Attorneys for Respondent.

MetsourNnE A. NOEL, JR.,

Assistant Attorney General,

of Counsel.