STATE v. DE LANO, 74 Wn.2d 962 (1968)

442 P.2d 620

No. 39705.The Supreme Court of Washington. Department Two.
June 20, 1968.

Appeal from a judgment of the Superior Court for King County, No. 45962, Albert N. Bradford, J., entered May 12, 1967 Affirmed.

Prosecution for robbery. Defendant appeals from a conviction and sentence.

Henry P. Opendack and Irving C. Paul, Jr., for appellant (appointed counsel for appeal).

Charles O. Carroll and Robert E. Dixon, for respondent.

PER CURIAM.

This is an appeal from the judgment and sentence imposed after a conviction of three counts charging robbery and one count charging attempted robbery. Appellant’s sole[1] assignment of error is that the trial court erred in admitting certain testimony as to the identification of appellant at a lineup without first determining whether such evidence was tainted by the illegality of the lineup.

The state concedes that if the lineup in question had been conducted after June 12, 1967 (instead of February 22, 1967 when it was conducted), appellant’s contentions might have some merit because of the decisions of the United States Supreme Court i United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 Sup. Ct. 1926 (1967), and in Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 Sup. Ct. 1951 (1967). The force of the rules announced in those cases has, however, been

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expressly limited to prospective application. Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 Sup Ct. 1967 (1967).

Being unwilling, as urged by appellant, to formulate a rule of our own in regard to the factual situation presented by this case, we hold appellant’s assignments of error to be without merit.

Judgment and sentence is affirmed.