Summary
conducting independent review of montage to determine whether anything in it unduly attracted attention to defendant's photo
Summary of this case from State v. DerriOpinion
No. 38812-6-I, 38832-1-I
Filed: February 8, 1999.
Appeal from the Superior Court for King County, Nos. 95-1-06929-7 and 95-1-06928-9, John M. Darrah, J. entered May 17, 1996.
James R. Dixon, Nielsen Broman Assoc. Pllc, Stella S. Buder, Wa. Appellate Project, Nielsen Broman Associates Pllc, Washington Appellate Project, Appellants.
David L. Ryan, King Co. Pros. Offc. #w554, Prosecuting Atty. King County, King County Prosecutor/Appellate Unit, Respondents. Norm Maleng, Prosecuting Atty.
A photographic montage is not impermissibly suggestive merely because three of the eight photos in the array were of accused assailants. Rather, a suggestive montage is one that directs undue attention to a particular photo. Because the montage used to identify David Paul Eacret as one of three men who participated in an assault did not highlight his photo, his second degree assault conviction is affirmed.
Co-defendant Kevin Stewart Eacret appeals his conviction on different grounds. We treat his contentions, which we find to be without merit, in the unpublished portion of this opinion.
FACTS
After speaking with several witnesses and the defendants, a police officer constructed an eight-photograph montage that included photos of Paul, Kevin, and Barry Eacret. Each photo was black and white and came from the state Department of Licensing records. The officer showed the montage to the victim, the victim's friend, and a third witness. The victim and his friend chose photos of Paul, Kevin and Barry as depicting the assailants. The third witness picked photos of Paul and Kevin.
Although the victim and his friend identified Barry as one of the assailants, he was not charged in the same information as Paul and Kevin and is not a party to this appeal.
Paul moved to suppress the montage because it included photos of all three Eacrets in the same array. He also argued that the photos did not depict similar-looking people, the photos of Paul and Kevin were clearer than the others, and Paul was older than the other individuals depicted.
The trial court agreed that the photos of Paul and Kevin were clearer and that the array did not consist of similar-looking men. The court also questioned whether including photos of each alleged assailant in the same montage was proper. But the court found that the montage did not unduly highlight the defendants' photos and was not impermissibly suggestive.
Paul appeals, challenging the court's admission of the montage only because it included photos of all three accused assailants. He contends that this feature unfairly reduced the chance that a witness would pick someone other than an alleged participant.
DECISION
Paul's only challenge to the court's admission of the identification evidence is the inclusion of photos depicting each of the three alleged assailants in the same montage. An out-of-court photographic identification meets due process requirements if it is not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Minor differences in the photos are not suggestive enough to warrant further inquiry into the likelihood of misidentification. When there is no evidence of suggestiveness in the photographic identification procedure, the inquiry ends; in such a case, any uncertainty or inconsistency in identification testimony goes only to its weight, not to its admissibility.
Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977).
See, e.g., State v. Hendrix, 50 Wn. App. 510, 513-14, 749 P.2d 210 (1988) (defendant's photo only one with tiny number in corner); State v. Weddel, 29 Wn. App. 461, 474-76, 629 P.2d 912 (1981) (defendant's photo one-quarter of an inch larger and with unique background).
State v. Vaughn, 101 Wn.2d 604, 610-11, 682 P.2d 878 (1984).
Here, Paul provides no authority to support his contention that inclusion of multiple defendants rendered the montage impermissibly suggestive. In fact, the contrary was found in similar cases. After our own review of the montage, we find nothing that unduly attracts attention to Paul's photo. Inclusion of the photos of Kevin and Barry did not increase the 1:8 ratio of Paul's photo to the other photos any more than would two photos of people unrelated to the assault. Stated differently, while inclusion increased the chances that a witness would choose one of the three suspects rather than a non-suspect, it did not make it more likely that Paul's photo would be the one chosen. For these reasons, we reject Paul's argument and affirm his conviction.
State v. Smith, 9 Wn. App. 279, 281-82, 511 P.2d 1032 (1973) (no impermissible suggestiveness where three of eleven photos larger and two of those three were of defendant); United States v. Cunningham, 423 F.2d 1269, 1272-73 (4th Cir. 1970) (fact seven of fourteen photos were of defendants did not render procedure impermissibly suggestive).
A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be published in the Washington Appellate Reports but will be filed of public record pursuant to RCW 2.06.040, it is so ordered.
Kevin Eacret
There is no dispute that the victim took beer belonging to the Eacrets or that Kevin and Paul fought with the victim about the beer. Instead, the parties differed as to how the fight began. Kevin and Paul testified that they acted in self-defense and in defense of their property. The victim and his friend, on the other hand, testified that Kevin and Paul attacked the victim without provocation.
Paul's daughter, Anastasia, testified in the defense case. She said she saw Kevin and the victim fighting, but did not see how the altercation began. She ran inside and told Paul to go outside, so he did. She followed and, by the time she got back out, the fight was over.
On cross examination, the prosecutor asked Anastasia if Paul drank. Kevin's attorney objected on the ground the question was beyond the scope of direct examination. The court overruled the objection, allowing the prosecutor to elicit evidence that Anastasia had often seen Paul drink. She could not, however, remember if he had been drinking on the day at issue.
The prosecutor also asked whether Anastasia lived with her mother. Paul's counsel made a relevance objection to this question and others about Anastasia's living arrangements. The court overruled the objections and Anastasia testified she had lived with a friend for several months during the spring and summer after the incident.
Kevin appeals, contending that the trial court erroneously admitted irrelevant and unfairly prejudicial evidence of Paul's drinking habits and "unstable domestic situation."
Kevin Eacret maintains that he was prejudiced by the court's admission of Anastasia's irrelevant testimony that Paul drank and had an unstable domestic life. He claims that the only purpose of the evidence was to improperly impugn Paul's credibility by attacking his character and, by association, to besmirch Kevin's credibility and character.
But Kevin failed to object to other witnesses' testimony about Paul's drinking. For example, Anastasia's long-time friend testified that Kevin and Paul appeared intoxicated, smelled of alcohol, and were acting violently just before they confronted the victim about their beer. And during cross examination by Kevin's own counsel, the witness testified that Paul always staggered and bumped into things and that she did not "know {of} one time when Paul hasn't drank." In addition, she testified during Paul's cross examination that she often saw Paul drink and that he was drinking a lot around the time of the instant assault. Moreover, Paul himself admitted to a drinking problem in the past, and acknowledged that he had abused alcohol.
This uncontested evidence of Paul's drinking rendered the brief testimony of Anastasia's testimony cumulative and, even if irrelevant, harmless. Because admission of the evidence did not reasonably affect the jury's verdict, we reject Kevin's argument.
See State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996) (erroneous admission of prior acts evidence requires reversal only if reasonably probable outcome of trial would have been different had evidence not been admitted).
Kevin's challenge to the admissibility of evidence about Paul's "domestic situation" is also unpersuasive. Assuming for purposes of argument that Anastasia's testimony about living with a friend was not relevant, Kevin fails to show how the evidence impugns Paul's character, much less his own. Even more attenuated is the connection between Anastasia's relationship with her father and either Kevin's or Paul's credibility. She did not, for example, testify that she moved away because Paul was untruthful, or because he had beaten the victim in this case. Indeed, she specifically said that she did not move out because of the incident.
There is thus no reasonable probability the outcome of the trial would have been different without the evidence. We reject Kevin's contrary contention and affirm his conviction.
CONCLUSION
The photo montage was not impermissibly suggestive. Neither did evidence about Paul's drinking and domestic life prejudice Kevin's right to a fair trial. We affirm both appellants' convictions for second degree assault.