44 P.3d 794 (Utah 2002), 20000585, State v. Hollen

Docket Nº:20000585.
Citation:44 P.3d 794, 2002 UT 35
Opinion Judge:DURRANT, Justice.
Party Name:STATE of Utah, Plaintiff and Appellee, v. Philip Earl HOLLEN, Defendant and Appellant.
Attorney:Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Salt Lake City, for plaintiff. Kent R. Hart, Karen Stam, Salt Lake City, for defendant.
Case Date:March 29, 2002
Court:Supreme Court of Utah

Page 794

44 P.3d 794 (Utah 2002)

2002 UT 35

STATE of Utah, Plaintiff and Appellee,


Philip Earl HOLLEN, Defendant and Appellant.

No. 20000585.

Supreme Court of Utah

March 29, 2002.

Page 795

Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Kent R. Hart, Karen Stam, Salt Lake City, for defendant.

DURRANT, Justice.

¶ 1 Phillip Earl Hollen was convicted of two counts of aggravated robbery based on four eyewitness identifications. On appeal, Hollen claims that the trial court erred (1) in concluding that the eyewitness identifications were sufficiently reliable to be admitted at trial consistent with the Due Process Clause of the Utah Constitution, and (2) in not allowing a defense expert to give an opinion on the reliability of the process of identification. We affirm, concluding that (1) the eyewitness identifications in this case were at least as

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reliable as an identification deemed constitutionally reliable in a prior case, and (2) the expert's opinion was excludable under Utah Rule of Evidence 702, since the expert's earlier testimony regarding the factors affecting the reliability of identifications, together with cautionary jury instructions, prepared the jury to draw its own conclusions about the reliability of the identifications without further assistance.



¶ 2 Before business hours on the morning of July 16, 1995, two men with guns accosted Oscar Contreras, a lifeguard trainee, in the parking lot of Raging Waters, a water amusement park in Salt Lake City. One of the robbers ("disguised robber") was disguised with a baseball cap, a fake mustache, and wraparound sunglasses. The other robber ("second robber") was tall, slim, and blonde, and, like the disguised robber, wore red swimming trunks, a shirt, and sandals.

¶ 3 When Contreras informed the robbers that he did not know where the park kept its money, the disguised robber told Contreras to take them to the park manager. Contreras then escorted the robbers towards the park's administrative offices. Just outside the offices, they were met by Lou Livolsi, the park's general manager, and Channing Jones, the park's operations manager. The robbers asked Livolsi for money and flashed their guns. Livolsi explained that he would have to get the keys to the vault room.

¶ 4 At about this time, David Peterson, another park employee, walked by. Livolsi asked Peterson to go to the administrative offices and get the vault key from the finance officer, Jill Pittman. When Peterson and Pittman returned from the offices, the entire group proceeded to the vault room.

¶ 5 Inside the vault, the group met Janae Jones, another employee, who was counting money from the previous day. While Livolsi and Pittman filled two bags with money, the second robber tied the other victims' hands and duct-taped their mouths.

¶ 6 After Pittman and Livolsi finished filling the bags, they too were tied up. The two robbers then fled in Contreras's car. Shortly thereafter, the victims managed to free themselves and call the police.


¶ 7 Later on the day of the robbery, Contreras and Channing Jones helped Detective Ray Dalling make a composite drawing of the disguised robber. Livolsi and Pittman were shown the composite, and Livolsi later testified that it was "pretty accurate."

¶ 8 Approximately two months after the robbery, Channing Jones saw a television report of a robbery of a saloon. The news report showed Phillip Earl Hollen, who had been arrested for the robbery, being wheeled to an ambulance on a gurney. Channing Jones recognized Hollen as the disguised robber from the Raging Waters robbery, and informed Livolsi and Detective Dalling.

A. Photo Array

¶ 9 Detective Dalling then prepared a photo array that included a mug shot of Hollen that was a "few years old" and five additional photographs. Dalling later testified that he selected photos where "the age range, the shape of the chin, the shape of the head, the basic features of each one were similar," because he "didn't want Mr. Hollen to stand out from anyone else."

¶ 10 Dalling showed the array to Channing Jones on September 28, 1995, and Contreras on October 2, 1995. Before showing them the array, Dalling explained that (1) the disguised robber may or may not be in the array, (2) they need not identify anyone, (3) they could either spread the photos out or view them individually, and (4) facial features remain the same, but the amount of facial hair and hair styles may change.

¶ 11 Jones and Contreras selected Hollen's photograph from the array. Detective Dalling estimated that Jones took one to one-and-a-half minutes to make the identification, and Contreras two-and-a-half to three minutes. After Jones's identification of Hollen,

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Dalling informed him that Hollen was in custody for another matter. 1

B. Lineup

¶ 12 On October 17, 1996, Hollen appeared in an in-person lineup along with five other persons. Pittman and Contreras identified Hollen as the disguised robber. Contreras noted on his identification form that he was "absolutely" certain. Livolsi was "pretty sure, but not definite" that Hollen was the disguised robber. Peterson selected Hollen and a filler, 2 but noted the latter "probably" was the disguised robber. Janae Jones selected the same filler as Peterson. Channing Jones did not attend the lineup.

C. Motion To Suppress

¶ 13 Before trial, Hollen filed a motion to suppress the eyewitness identifications of him. The trial court conducted a hearing on the motion on February 19, 1998, just over two-and-a-half years after the robbery.

1. Contreras's Testimony

¶ 14 At the hearing, Contreras estimated that, during the course of the robbery, he had an opportunity to observe the robbers from a short distance for a total of ten minutes. Contreras recalled that the disguised robber wore a tank top. He admitted that the robbery "traumatized" him.

2. Channing Jones's Testimony

¶ 15 Jones testified that he focused on the robbers' faces from five feet away while waiting for Peterson to return with Pittman, and that he observed the disguised robber for a total of five minutes during the encounter. Jones recalled that the disguised robber wore a white t-shirt and the second robber wore a grey sweatshirt.

3. Livolsi's Testimony

¶ 16 Livolsi testified that he had an opportunity to observe the robbers while he conversed with them outside the administrative offices, while waiting for Peterson to return with Pittman, and again inside the vault room. Elaborating on his observations in the vault, Livolsi explained that he looked directly at the disguised robber when receiving instructions and periodically when emptying the vault. Livolsi estimated the group was in the vault for a total of five minutes. Regarding his qualified selection of Hollen at the lineup, Livolsi explained that he had chosen Hollen because he was "the closest choice." As to the disguised robber's clothing, Livolsi testified that he was eighty or ninety percent certain the disguised robber wore the sweatshirt.

4. Pittman's Testimony

¶ 17 Pittman testified that she glanced at the robbers for a few seconds outside the administrative offices, then three times while she filled the bags with money in the vault. She estimated that she observed the disguised robber for thirty seconds each time she looked at him in the vault. As to the disguised robber's clothing, Pittman recalled a tank top with possibly a t-shirt underneath.

5. The Expert's Testimony

¶ 18 Defense counsel called Dr. David Dodd to testify as an expert in the field of eyewitness identification. Dr. Dodd testified that fear, the use of a disguise, and the suggestibility of the identification procedure all may have interfered with the ability of the witnesses to accurately identify the assailants.

¶ 19 Regarding the suggestibility of the photo array, Dr. Dodd detailed an experiment he conducted with the same photo array used by Detective Dalling. In this experiment, Dr. Dodd instructed test subjects to select two persons from the array based on a description of the disguised robber from a police bulletin. The test subjects as a group selected only three of the six photos. Interpreting this result, Dr. Dodd opined that the photo array presented only three meaningful choices. He added that Jones's

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observations of Hollen on television in advance of his participation in the photo array, and the general desire of victims to apprehend assailants, compounded the suggestibility of the identification procedure. Accordingly, Dr. Dodd concluded that "there are some serious questions about the reliability" of the identifications in this case.

¶ 20 After hearing argument from the parties regarding the identifications, the trial court applied the reliability analysis set forth in...

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