range of relator's height and weight. The state is required to arrange a lineup that is not "unnecessarily suggestive," Stovall v. Denno, supra 388 U.S. at 302; it is not required to people that lineup with individuals who could pass as identical twins of the defendant. The state met its obligation in the instant case. Moreover, I fail to see how relator can, with any claim to logical consistency, argue that the lineup violated the Stovall rule. Two witnesses to another robbery, who attended the lineup, were not able to identify relator as the man who robbed them. See transcript of March 25, 1969 proceedings. The lineup thus could not have been "conducive to irreparable mistaken identification." Stovall v. Denno, supra 388 U.S. at 302.
Relying on the March 25, 1969 hearing I have just referred to, relator raises one final challenge to the lineup. At that hearing, prior to another robbery trial where relator was the defendant, the trial judge suppressed the identification testimony of two witnesses who attended the same lineup that is attacked here. According to relator, this ruling shows that the lineup itself was tainted and that the identification testimony in the instant case should have been suppressed as well. An examination of the March 25, 1969 transcript, however, reveals the weakness of this argument. The case involved the robbery of a hoagie shop more than two weeks before the gas station robberies in this case. As I have pointed out above, the two robbery witnesses, who were not witnesses in the instant case, were unable to identify relator at the lineup. They did so only after police had shown them, in one instance, a photograph of relator and, in the other, clothing allegedly worn by relator during the hoagie shop robbery.
No such prejudicial police conduct occurred in the instant case. Though one witness identified a photograph of relator prior to the lineup, he was shown the photo during the investigatory phase of the prosecution, when police were still seeking to ascertain the identity of the robber, and the photo itself was one of a series of 15 or 20 offered by police for the witness's inspection. This entirely proper investigatory procedure cannot be the basis for a finding, by this Court, of a denial of due process. In all likelihood, the trial judge at the March 25, 1969 properly suppressed the challenged identification testimony. On its facts,
however, that ruling is totally distinguishable from the decision of the trial judge in the instant case. Relator's second set of lineup-related arguments must also fail.
III. The Right to Counsel Issue
Relator's third and final claim for habeas corpus relief rests upon alleged denials of his right to counsel and his right to confront witnesses at his original trial for the gas station robberies. He argues, in essence, that his decision that his counsel not take an active part in the trial -- a decision that his counsel clearly opposed -- did not constitute a knowing and intelligent waiver of his right to the assistance of counsel.
After listening to all of the evidence presented at the habeas corpus hearing and after carefully considering the memoranda submitted by the parties, I have concluded that the only issue with any possible colorable merit that relator has raised in this regard is whether his counsel's failure to give a summation to the jury deprived him of the effective assistance of counsel. That issue itself must be placed in some kind of perspective. When a defendant who is as experienced and knowledgeable about the criminal process as relator is deliberately decides to play the role of a lawyer and repudiates the advice of his own counsel and of the court, he does so at his peril, and at his peril alone. For otherwise he would convert the legal process into a perpetual game where the court and the system become the joker. One who repudiates sound legal advice as relator did here should not be permitted to feign ignorance, or plead that he was uninformed of his rights, when he had been advised specifically that he should not decline his own lawyer's recommendation. The criminal process is not a three-ring circus where defendants can prance from one ring to another, putting on different and endless performances in the circle or circles of his choice. A criminal trial is a serious matter wherein a defendant's rights must be protected, but there is also a societal right, implicit in the Constitution, which demands that the criminal justice system function with some rationality and enjoy some finality.
The record reveals that the relator, over the objection of his attorney, initially decided that there would be no defense in his behalf, and that his counsel would not even cross-examine the prosecution's witnesses. Transcript of January 27, 1969, at 57-61. While it is true that the trial judge volunteered a statement that relator's counsel would make a summation to the jury on his behalf, id. at 58, when the time came for that summation, relator's counsel felt that he had nothing to say to the jury and that he should waive his opening and closing statements to the jury, and he so informed relator. Id. at 119-20. Relator agreed to the waiver, and the following colloquy ensued:
THE COURT: Is that what you want him to do, Mr. Davis?
DEFENDANT DAVIS: Yes sir.