Opinion
No. 31437-1-II, consol. with No. 32987-5-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No: 03-1-00424-6. Judgment or order under review. Date filed: 01/26/2004. Judge signing: Hon. David E Foscue.
Counsel for Appellant(s), Joseph W. III Bland (Appearing Pro Se) #742871, Cccf, 6564 State Hwy 96, Olney Springs, CO 81062-8700.
Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, 102 Broadway Ave W Rm 102, Montesano, WA 98563-3621.
Joseph W. Bland seeks relief from convictions for first degree kidnapping and attempted first degree robbery. In a direct appeal, he argues that his due process rights were violated by a defective out-of-court identification process. In a consolidated personal restraint petition, he argues that his trial counsel was ineffective by failing to request a continuance so he could locate a witness. Finding no prejudicial error, we affirm.
Bland was also convicted of possession of methamphetamine; he does not challenge that conviction.
At approximately 11:45 p.m. on August 23, 2003, a man holding what appeared to be a gun forced 16-year old Linsey Wagner into her car and ordered her to drive to a nearby park. When they arrived at the park, he took the keys out of the ignition, rummaged through her purse, and asked her where her money was. He pulled a ring off her finger and threw it out the window. He got out, walked around the car, pulled Wagner out of the car, and struggled with her, before finally leaving on foot. Wagner was able to observe the man as she was driving and as he was walking around the car.
When the police arrived, Wagner described the man as a white male in his mid-thirties, approximately six feet tall, 160-165 pounds, wearing a red and black plaid shirt and black gloves. He had a brown goatee and hair with blond, frosted tips. She had never seen him before.
On August 25, the police showed Wagner a photomontage of six men, none of whom was Bland. Wagner could not identify anyone.
By the next day, the police had received information from Amy Dick, a neighbor of Bland's girlfriend, that caused them to suspect Bland. They made up three more montages, one of which included a 2001 photo of Bland. Again however, Wagner could not identify anyone.
Prior to showing this set of photomontages to Wagner, the police showed them to Wagner's mother, Tammy Pejsa. Pejsa identified Bland's photograph as a person she had seen at her work and said that he fit Wagner's description of her attacker. Wagner did not know this until after she had identified Bland.
On August 27, the police arrested Bland on outstanding municipal warrants. The police then made up a photo montage that included a recent booking photo of Bland. None of the men in the montage had frosted hair, but five of the six, including Bland, had a goatee or some sort of facial hair. This time, Wagner identified Bland; while noting that he did not have blond highlights in his hair, she was positive he was the man.
After Bland's arrest, he was advised of his Miranda rights, which he waived, and informed that he was being interrogated about a kidnapping, attempted robbery, and an attempted rape. He told Officer Cox that he had been at a friend's house until approximately 11:00 p.m., after which he had returned to the apartment of Judy Ross, his girlfriend, and gone to bed. He denied raping anyone.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the time of the attack, Bland was staying with Ross, approximately a block or two away from where the abduction occurred and just a few blocks from Wagner's home. Ross was Wagner's father's former girlfriend and the mother of Wagner's two half siblings, but Wagner had not seen Ross for several years and was not aware of her relationship with Bland at the time of the kidnapping. When Pejsa commented on Bland's photograph in the second set of montages, Pejsa did not know that that the man she had selected was Ross's boyfriend. Report of Proceedings (RP) (Jan. 8, 2004) at 173.
The State charged Bland with the two counts in issue here, plus a third drug count not in issue here. It alleged first degree kidnapping, attempted first degree robbery, and possession of methamphetamine.
During the ensuing jury trial, Wagner identified Bland as the man that had forced her into the car. She said that she was `[v]ery positive' about the identification, and that she had never seen him before that night. Instead of objecting to Wagner's out-of-court or in-court identifications, defense counsel presented evidence of the out-of-court identification procedure and the testimony of Dr. Geoffrey Loftus. Dr. Loftus opined that Wagner's having seen Bland's 2001 photograph in the second set of photomontages could have influenced her eventual identification.
Dr. Loftus testified about a memory phenomenon known as `unconscious transfer.' RP (Jan. 9, 2004) at 40. He described this phenomenon as follows:
Unconscious transference is one way in which a lineup can be biased. Unconscious transference refers to a situation in which a witness has seen the suspect in the lineup under prior circumstances. So for example, maybe the witness and the suspect frequent the same 7-Eleven or they went to the same high school together; they've gone to parties together or whatever. Then when the witness looks at the lineup, she's looking at one person, namely the suspect, who looks familiar to her because she's seen him before in whatever set of circumstances. The other five people in the lineup, the fillers, are just random people chosen from the licensing files or wherever, the witness has never seen before.
So because there is one person in the lineup who is familiar to the witness and five other people who are unfamiliar, the witness would be biased or predisposed to select the suspect on the basis of this familiarity alone. The witness would attribute the familiarity of the suspect to having seen him commit the crime. Whereas, in fact, the familiarity of the suspect could come about because the witness had seen him on prior occasions and had nothing to do with the crime. So that's what unconscious transference is.
RP (Jan. 9, 2004) at 40-41. Loftus also testified that the procedure used in this case, where Bland's photograph was the only photograph present in more than one set of photographs, was `a very bad photomontage procedure.' RP (Jan. 9, 2004) at 42.
Bland and several defense witnesses testified that Bland's hair was not highlighted on or around the time of the kidnapping. Officer Cox testified that when he had seen Bland on August 21, Bland had had blond streaks in his hair. Bland's mother admitted that Bland sometimes highlighted his hair. Bland, Ross, and Bland's mother all testified that Bland did not have a red and black plaid shirt. Bland, Ross, and Ross's 17-year-old son all testified that Bland was asleep in Ross's apartment at the time of the incident. Bland explained that even though he had told Officer Cox he had not arrived at Ross's until 11:00 p.m., he had actually been there throughout the day and evening. Ross testified that Bland was asleep when she got home from work in the afternoon, that she joined him soon after arriving home, and that they did not leave the apartment again that night. Ross explained that if Bland had told the police that he had not come home until 11:00 p.m., he was referring to the night before the incident. Bland and Ross testified that they were in bed together when Debbie Wagner, Wagner's aunt, had called at about 1:30 a.m.
Amy Dick testified that around 4:00 a.m. on the night of the incident, she had noticed a man on a red bicycle outside her house. He was wearing a baseball cap, black gloves, and a red and black flannel shirt. She believed the man was Bland, because he frequently rode a bicycle. She had contacted the police, described what she had seen, and tentatively identified the man as Bland. Later, after speaking to a defense investigator and receiving a letter from a friend of Bland's named Charles Harper, she concluded the man could have been Harper.
At the close of Bland's testimony, defense counsel stated that although he had subpoenaed Charles Harper and two other witnesses, he did not know whether they were then in attendance. He also said that `[i]f we don't have time,' he would rest. To clarify, the court then asked whether the defense was resting, and defense counsel responded `Yes.' The State had no rebuttal, so the court recessed for lunch.
After lunch, the State began its closing argument. According to Bland, Harper then arrived but was told he could leave.
The jury found Bland guilty. He then brought a direct appeal, as well as a personal restraint petition that we have consolidated with his appeal.
I.
Bland contends that the out-of-court identification procedure violated his due process rights. He argues that there is a substantial likelihood that Wagner identified him in the third photomontage only because she had already seen a photograph of him in the second set of photomontages. He also argues that her out-of-court identification tainted her in-court one, and that defense counsel rendered ineffective assistance when he failed to object to both.
An out-of-court identification violates due process if it is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Here then, we first inquire whether the identification procedure was suggestive, including whether the montage directed undue attention to a particular photograph. If the identification procedure was not suggestive, our inquiry ends; uncertainty may affect weight but not admissibility. If the identification procedure was suggestive, we must additionally inquire whether that fact gave rise to a substantial likelihood of irreparable misidentification. If the answer is yes, both the out-of-court and in-court identifications should be suppressed.
Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Maupin, 63 Wn. App. 887, 896-97, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992).
State v. Kinard, 109 Wn. App. 428, 433, 36 P.3d 573 (2001), review denied, 146 Wn.2d 1022 (2002).
State v. Eacret, 94 Wn. App. 282, 283, 971 P.2d 109 (1999).
State v. Vaughn, 101 Wn.2d 604, 610-11, 682 P.2d 878 (1984); State v. Hendrix, 50 Wn. App. 510, 513, 749 P.2d 210, review denied 110 Wn.2d 1029 (1988).
Maupin, 63 Wn. App. at 897. In making this determination we consider five factors set forth in Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977): (1) the witness's opportunity to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of any prior description; (4) the witness's level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the identification. See Maupin, 63 Wn. App. at 897.
State v. Williams, 27 Wn. App. 430, 443, 618 P.2d 110 (1980), aff'd, 96 Wn.2d 215 (1981) (quoting Simmons, 390 U.S. at 384).
United States v. Davenport, aids our first inquiry. The defendant argued that a witness's lineup identification was tainted because the police had shown the same witness a photomontage containing the defendant's photograph before the witness selected the defendant in the lineup. The Ninth Circuit stated: `We do not regard either the line up or the in-court identification as unnecessarily suggestive. The fact that [the defendant] was the only individual common to the photo spread and the lineup cannot, without further indicia of suggestiveness, render the lineup conducive to irreparable misidentification.'
753 F.2d 1460 (9th Cir. 1985).
Davenport, 753 F.2d at 1463 (footnote omitted) (citing United States v. Portillo, 633 F.2d 1313, 1324 (9th Cir. 1980), cert. denied, 450 U.S. 1043 (1981)).
As in Davenport, we do not find suggestive, without more, the fact that Wagner had previously seen a photograph of Bland. Bland's appearance in the 2001 photo was different from his appearance in the recent booking photo, as one picture had been taken two years before and the other only a few days before. The 2001 picture was one of 18 photographs that Wagner viewed simultaneously. Neither picture showed any obvious distinguishing feature that might have influenced a subsequent identification. Accordingly, the record does not establish that the identification procedure was suggestive.
The cases Bland cites are inapposite. Although these cases warn that photo identifications carry certain risks, these cases do not provide that multiple viewings of a suspect in photo arrays or line ups is per se suggestive and most of the cases involve instances where the witness makes an initial tentative identification of the suspect or other suggestive factors exist. See Simmons, 390 U.S. at 384 (recognizing risks involved in using photo identification procedures such as showing multiple arrays where the defendant is the only picture in all the arrays, but recognizing that such weaknesses can usually be addressed in cross examination and that only overly suggestive procedures that create a substantial risk of misidentification must be suppressed); United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976) (recognizing that risk of abuse is possible, but finding that even where a witness had first made a tentative identification, showing the witness two sets of photographs was not overly suggestive); State v. McKnight, 191 Conn. 564, 469 A.2d 397 (1983) (recognizing that `pictorial recurrence can be suggestive in that it increases the risk of misidentification,' in the context of an initial equivocal identification); Johnson v. State, 56 Md. App. 205, 467 A.2d 544 (1983) (accepting without analysis the trial court finding that identification procedure was overly suggestive where the witness identified the defendant in a second photo array after identifying the defendant and his twin brother and being unable to distinguish them in a first photo array), review denied, 299 Md. 136 (1984); Reaves v. State, 649 P.2d 777 (Okla.Crim.App. 1982) (citing several overly suggestive procedures).
This conclusion also disposes of Bland's assertion that his counsel rendered ineffective assistance by not moving to suppress or by presenting evidence designed to detracted from the weight of Wagner's identifications. Counsel's performance was neither deficient nor prejudicial.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (to show ineffective assistance, defendant must show deficient performance plus resulting prejudice).
II.
Bland argues in his personal restraint petition that his trial counsel ineffectively refused to move for a continuance so he could present Harper's testimony. To establish ineffective assistance, a defendant must show deficient performance and resulting prejudice. To establish prejudice, a defendant must show a reasonable probability that the trial's outcome would have been different but for counsel's deficient performance.
McFarland, 127 Wn.2d at 334-35.
In re Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
Bland has not shown prejudice here. He asserts that Harper would have testified that he, not Bland, was the man whom Dick saw outside her house at about 4 a.m. on the night of the incident. But testimony of that kind would not effectively have rebutted the State's evidence tending to show that Bland had abducted and tried to rob Wagner several hours earlier. Thus, we cannot say that the outcome of the trial would probably have been different, and we cannot find ineffective assistance of counsel.
Having found no error, we reject Bland's claim of cumulative error.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J., and QUINN-BRINTNALL, C.J., concur.