Opinion
Record No. 1554-91-2
February 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG WILLIAM H. LEDBETTER, JR., JUDGE
Earl J. Oberbauer, Jr., for appellant.
Oliver L. Norrell, III, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Charged with possession of cocaine with the intent to distribute in violation of Code § 18.2-248, the appellant, Mark Morton, filed a motion in limine requesting that the investigating officer be required to identify the perpetrator in a non-prejudicial setting, such as a lineup. He appeals the denial of that motion. We find no error in that ruling and affirm the judgment of the trial court.
On August 24, 1990, an informant, Jessal Comford, told State Trooper Harris that Morton sold drugs in Fredericksburg. Comford arranged for Harris to make a drug purchase from Morton by calling Morton's beeper. Within fifteen minutes, Morton arrived in front of Comford's house. After introducing Morton and Harris, Comford went back in his house. Morton then asked Harris what he "was looking for." Harris requested a "fifty dollar rock." Morton sold Harris a "rock" for fifty dollars. After completing the transaction, Morton left. When he had walked about thirty feet, Harris called Morton's first name. Morton turned and waited for Harris, who walked up and warned him of all the police nearby. Both men then left. From the time of Morton's arrival to the time of his departure, "a couple of minutes" passed.
At trial, Harris testified he had not seen Morton since the date of the drug transaction. Although he unreservedly identified Morton as the person who sold him the cocaine, Harris was unsure of Morton's hairstyle. Corroborating Harris, Comford testified that Morton, whom he had known for over fifteen years, was the person who met with Harris.
Morton contends that the trial court denied him an effective opportunity to challenge the accusing officer's ability to identify the perpetrator of this crime. He argues that the officer's identification of him was influenced by the suggestive circumstances of the courtroom and that this caused his misidentification. He argues that the denial of his motion for a lineup prejudiced his ability to demonstrate the uncertainty of Harris' identification and effectively denied him his due process right to a full and fair trial.
Morton's argument is based on the "principle that the manner in which an accused is confronted by his victim may be so suggestive of his identification as to run afoul of the due process requirement of the Constitution of the United States."Fogg v. Commonwealth, 208 Va. 541, 547, 159 S.E.2d 616, 620 (1968) (citing Stovall v. Denno, 388 U.S. 293, 302 (1967)). While we acknowledge the principle that an accused's due process rights may be violated by a suggestive identification process, we find no violation of Morton's rights in this case. See United States v. Bennett, 675 F.2d 596, 598 (4th Cir.),cert. denied, 456 U.S. 1011 (1982) (while "[s]uch procedure[s] in many instances may be desirable to ensure a fair trial. . .a defendant simply does not have a right to such an arrangement whenever he requests it"); United States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970), cert. denied, 402 U.S. 912 (1971) (the denial of a request for an in-court lineup is reviewed for an abuse of discretion).
While a police line-up is recognized as one of the reliable methods of identifying an accused as the perpetrator of a crime or crimes, we are aware of no principle under which he is constitutionally entitled to such a line-up.
Fogg at 547, 159 S.E.2d at 620. We know of no statutory requirement or established rule of practice which requires a lineup on demand. Therefore, we hold that a motion for a lineup, or for any other procedure to test a witness' ability to identify the accused, is addressed to the sound discretion of the trial court in the performance of its duty to afford a fair trial.
We find no abuse of discretion in the trial court's denial of Morton's motion for a lineup. Harris was a police officer, trained to observe. It was Harris' purpose during the transaction to be able to identify later the person with whom he dealt. Harris testified that he observed the drug dealer as they stood face to face making the transaction. He said that he observed him closely "for identification purposes." We perceive no sound reason to doubt that Harris' identification of Morton could be sufficiently challenged through cross-examination or that such a procedure would afford Morton a fair trial.
Furthermore, even if an identification procedure is unduly suggestive, the identification may be admissible if, under the totality of the circumstances, it is nevertheless so reliable that there is no substantial likelihood of misidentification.Miller v. Commonwealth, 7 Va. App. 367, 373, 373 S.E.2d 721, 724 (1988). In considering the totality of the circumstances, a court should take into account:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Id.
Harris testified that he was absolutely certain that Morton was the person who met him near the informant's house and sold him the cocaine. Immediately following the transaction, Harris viewed a photograph of Morton and thereby confirmed the identity of the person with whom he had dealt. The informant, who had known Morton for more than fifteen years, corroborated Harris' testimony by testifying that Morton appeared at his residence and met with Harris. This testimony unquestionably excluded any substantial likelihood of misidentification.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
Although the United States Supreme Court has not ruled whether a defendant has a constitutional right to a pre-trial lineup, it has recognized the importance that such a procedure may have in ameliorating the suggestiveness of a courtroom confrontation and in ensuring the reliability of identification evidence.See Moore v. Illinois, 434 U.S. 220, 230-31 n. 5 (1977). This is the context in which the motion was argued to the trial judge and context in which the trial judge erred when ruling on the motion for a pre-trial lineup.
Mark L. Morton does not argue that a defendant has a constitutional right upon demand to a pre-trial lineup. Morton does assert, however, that in a given case such a procedure may be necessary to ensure a fair trial, see United States v. Bennett, 675 F.2d 596, 598 (4th Cir.), cert. denied, 456 U.S. 1011 (1982); United States v. White, 482 F.2d 485, 488 (4th Cir. 1973), cert. denied, 415 U.S. 949 (1974), and that the record proved he was entitled to a lineup in this case. The questions to be resolved are whether the trial judge abused his discretion in refusing to order the pre-trial lineup, see generally United States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970), cert. denied, 402 U.S. 912 (1971), and whether the refusal resulted in a procedure "so unnecessarily suggestive and conducive to irreparable mistaken identification that [Morton] was denied due process of law." Stovall v. Denno, 388 U.S. 293, 302 (1967). Both questions must be answered affirmatively.
Morton's counsel made a motion in limine for a pre-trial lineup, alleging that the police officer, while working undercover, purchased drugs on one occasion from a man who was alleged to be Morton. The officer did not previously know Morton and, after the sale transaction, the officer did not again see the man who sold the drugs to him. Morton's counsel represented that Morton's evidence would include witnesses who would testify that Morton was not physically present in the city and that another person was using Morton's name. He also represented that the officer gave a description of the drug seller's hair style that was inconsistent with Morton's appearance. In response, the Commonwealth argued that the trial judge had no authority to order a lineup, and that the police officer's in-court identification would be trustworthy because the officer would be testifying under oath. The trial judge denied the motion for a pre-trial lineup because "this would set an incredible precedent" and because:
I don't see any basis for it, particularly when the prosecution witness is a police officer, not just somebody out on the street. He is trained to observe things, and whether that enhances his credibility or not is for the jury; it's not mine.
The denial of a pre-trial lineup in this case constituted an abuse of discretion because the reasons stated by the trial judge were facially invalid. Morton's assertions supporting thein limine motion were unrebutted and entitled him to have the officer's identification tested by a procedure less suggestive than simply allowing the officer to point to the man sitting at the table next to defense counsel.
In cases such as this, where the question of guilt or innocence hangs entirely on the reliability and accuracy of an in-court identification, the identification procedure should be as lacking in inherent suggestiveness as possible. Yet that is often not the case. When asked to point to the [perpetrator], an identification witness — particularly if he has some familiarity with courtroom procedure — is quite likely to look immediately at the counsel table, where the defendant is conspicuously seated in relative isolation. Thus the usual physical setting of a trial may itself provide a suggestive setting for an eyewitness identification.
Because of such potential suggestiveness, some trial judges have granted defense requests to place the defendant in an in-court lineup, or to seat the defendant in the courtroom audience, before and during the testimony of the prosecution's identification witnesses. Such arrangements are desirable efforts to ensure fair trials. But we cannot find any support for the assertion that a defendant has a right to such an arrangement whenever he requests it. Like the seating arrangements for prospective witnesses, the procedure for in-court eyewitness identification is left to the trial judge's discretion.
Williams, 436 F.2d at 1168 (citations omitted).
The reliability of identification was legitimately at issue in this case. In ruling on Morton's request for a non-suggestive identification procedure to be held prior to the hearing in which the witness, in the presence of the jury, was to be asked to identify Morton as the perpetrator, the trial judge attributed special competence to the police officer as a witness. Affirming the trial judge, the majority also suggests that this officer, by virtue of some training the majority believes police officers generally may receive, is more likely than any other witness to make a reliable identification. Nothing in this record, however, permits the conclusion that this officer had any specialized training in identifications or that police officers as a class are less likely to make inaccurate identifications. Such an assumption leads to precisely the difficulty that courts are charged with avoiding. The assumption that police officers are better observers because they are police officers becomes a self-fulfilling prophecy that an identification by a police officer is per se reliable. Furthermore, the suggestiveness of the impending courtroom confrontation was not ameliorated by the status of the witness as a police officer. Regardless of the status of the observer, "a one-on-one confrontation generally is thought to present greater risks of mistaken identification than a lineup." Moore, 434 U.S. at 229.
Several courts have ruled that defense counsel's conduct was contumacious and unethical when defense counsel placed a person resembling defendant at counsel table. See United States v. Thoreen, 653 F.2d 1332, 1338-43 (9th Cir. 1981); People v. Simac, 603 N.E.2d 97, 100-04 (Ill.App.Ct. 1992);Miskovsky v. Jones, 586 P.2d 1104, 1107-10 (Okla.Crim.App. 1978). In Thoreen, the court recognized that "an attorney could test a witness's credibility by notifying the court and counsel that [identification is at issue] and by seeking the court's permission to (1) seat two or more persons at counsel table without identifying the defendant; (2) have no one at counsel table; (3) hold an in-court lineup." 653 F.2d at 1342 n. 7 (citation omitted). Unfortunately, the majority's decision in this case to uphold the trial judge's erroneous reason for denying a prehearing identification procedure further limits the range of options available to assure that identification of a defendant as the perpetrator is based on actual recognition by the witness and not merely because the witness knows where the defendant will be seated in the courtroom. On this record, the evidence is conclusive that the trial judge abused his discretion in denying the pre-trial identification.
The question remains whether the admission of identification evidence that was unduly suggestive was nevertheless so reliable that there was no substantial likelihood of misidentification. See Manson v. Brathwaite, 432 U.S. 98 (1977). At the hearing on the motion, the trial judge gave no attention to the objective "factors to be considered in evaluating the likelihood of misidentification." Neil v. Biggers, 409 U.S. 188, 199 (1972). The trial judge simply assumed the nature of a police officer's likely training. In concluding that the identification was reliable, the majority relies upon the officer's professed certainty that the defendant before him was the person who sold him drugs. Both findings ignore the usual standards.
The evidence proved the officer met the drug dealer at approximately 9:00 p.m. on the street and purchased cocaine. The officer said it was not completely dark; however, the streetlights were on. Although they were not under the streetlight, the officer said the light was sufficient for him to see the dealer. He had never met the dealer before and was only in his presence "just maybe a minute or so."
The officer's description of the dealer was not particularly significant. He said the person was "about five-eight, five-nine, as I recall [and] was very heavy set." That description was given at trial when Morton was sitting in full view of the officer.
The time interval between the purchase and the trial identification was seven months. The Supreme Court has aptly observed that "a lapse of seven months between the [incident] and the confrontation . . . [is] a serious negative factor in most cases." Biggers, 409 U.S. at 201.
None of these facts leads to the conclusion that an identification made under the circumstances then existing was so reliable that substantial likelihood of misidentification did not exist. The majority relies upon the officer's certainty, however, and buttresses that reliance by reference to the testimony of the informant. That the informant identified Morton as the seller, however, does not bear positively on the circumstances that made the officer able to view and recall with a degree of certainty the person with whom he dealt.See Biggers, 409 U.S. at 199-200. The informant's self-interest and degree of reliability are inappropriate factors upon which to judge the likelihood of reliability in the officer's identification. Moreover, the officer may have been less attentive to the seller precisely because he was told the informant knew the seller.
Where, as here, the evidence before the trial judge indicated that the officer had only a brief meeting with the drug dealer at night on a street, the meeting occurred seven months before the trial identification, and the in-court procedure was unduly suggestive, I would hold that the record does not support a conclusion that the officer's identification of the person sitting at the table before him next to defense counsel was reliable. Accordingly, I would reverse the conviction.