United States Court of Appeals, Tenth CircuitAug 29, 1984
742 F.2d 584 (10th Cir. 1984)

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No. 84-1241.

August 29, 1984.

R.W. Byars, Tulsa, Okl., for petitioner-appellant.

Michael C. Turpen, Atty. Gen. and David W. Lee, Asst. Atty. Gen., the State of Oklahoma, Oklahoma City, Okl., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Oklahoma.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal.

This is an appeal from an order of the United States District Court for the Northern District of Oklahoma denying petitioner's relief sought pursuant to 28 U.S.C. § 2254.

On direct appeal and in her petition, petitioner raised the following errors: (1) denial of defense attorney's presence at a post-indictment, post-lineup interview between witnesses and police violated petitioner's sixth amendment right to effective assistance of counsel; and (2) failure of the trial court to exclude the in-court identification because of the tainted lineup without a determination of the witnesses' independent ability to identify the petitioner violated her fifth and fourteenth amendment due process rights.

Petitioner asserts that Richardson v. State, 600 P.2d 361 (Okla.Crim.App. 1979), controls the disposition of this case. The Richardson court extended the right to counsel defined in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), to include the right to have counsel present at a post-lineup interview between witnesses and police. Richardson, 600 P.2d at 365. Petitioner relied on Richardson in post-conviction proceedings in state court. The Oklahoma Court of Criminal Appeals, however, refused to apply Richardson retroactively.

In determining whether petitioner has been denied effective assistance of counsel in violation of the sixth amendment, this court is not bound to follow Oklahoma's interpretation of the federal constitution.

While a few states including Oklahoma, Richardson, and California, People v. Williams, 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942 (1971), have held that a defendant has a constitutional right to have his counsel attend a post-indictment post-lineup interview, the circuits that have considered the question have declined to extend United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), to the post-lineup interview. United States v. White, 617 F.2d 1131, 1135 (5th Cir. 1980) (citing United States v. Banks, 485 F.2d 545 (5th Cir. 1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974)); United States v. Bierey, 588 F.2d 620, 624 (8th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1260, 59 L.Ed.2d 482 (1979); United States v. Tolliver, 569 F.2d 724, 727 (2d Cir. 1978) (recording of interview should be made available to defense counsel); United States v. Parker, 549 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977) (citing Doss v. United States, 431 F.2d 601, 603-04 (9th Cir. 1970)); United States v. Wilcox, 507 F.2d 364, 370 (4th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975).

We follow the other circuits in holding that petitioner's sixth amendment rights were not violated when petitioner's counsel was denied presence at the post-lineup interview. Because we find that the line-up was not constitutionally tainted, we need not address petitioner's second contention. The trial court properly denied appellant's petition.