Alberts v. State, 5492

• Decision Date: 19 March 1982
• Docket Number: No. 5492,5492
• Parties: Paul C. ALBERTS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 447

642 P.2d 447

Paul C. ALBERTS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5492.

Supreme Court of Wyoming.

March 19, 1982.

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, and Sylvia Lee Hackl, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., and Sharon A. Lyman, Asst. Atty. Gen., for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

Appellant-defendant was convicted, after a jury trial, of four felony counts: Aggravated robbery in violation of § 6-4-402, W.S.1977 ¹ ; aggravated assault with felonious intent in violation of § 6-4-503, W.S.1977 ² ; child stealing in violation of § 6-4-

                202, W.S.1977 3; and felony murder in violation of § 6-4-101, W.S.1977.  4  He appeals from the resulting judgment and sentence, contending that reversible error exists in
                

1. The denial of his motion to suppress the identification testimony of eyewitnesses Goodwin and Gamroth, and the refusal to sustain his objections to in-court identification by these witnesses,

2. The denial of his motion to dismiss the count charging him with child stealing for the alleged reason that § 6-4-202, W.S.1977 is unconstitutional on its face, and

3. An alleged failure to adequately instruct the jury on the necessary elements of the underlying felony in connection with the felony-murder count.

We affirm.

IDENTIFICATION

At about 12:15 a. m. on September 16, 1979, witness Goodwin got out of bed and found an armed intruder in his living room. The intruder took Goodwin's watch and other property at gunpoint. After the intruder left, it was determined that the watch, wallet and other property of Chuck Miller, who rented the downstairs apartment from Goodwin, were missing.

At about 12:30 a. m. on the same day, a masked, armed man entered the house of Trudy Sutherland. Goodwin's house and that of Sutherland are next to each other on South Chestnut Street in Casper. At the time, Sutherland's house was occupied by 15-year old witness, Kevin Gamroth, and Sutherland's two children, Chad, age 3 and Christy, age 9. Gamroth was babysitting for the other two children. At gun point, the intruder forced Gamroth into the alley where he had him remove his jeans, boots and underwear and told him to start running. Gamroth did so, but he rounded the corner to South Chestnut Street and observed the intruder leaving the Sutherland house with Christy. When Gamroth approached the intruder and asked where he was taking Christy, the intruder started to take out his gun. Gamroth then said that he would leave. He went in the house and called the police. On December 2, 1979, Christy's body was found in the North Platte River. The death was caused by a gun shot to her head.

The description of the intruder given by Goodwin and that given by Gamroth, together with the fact that the incidents occurred in adjacent houses led the police to believe that the two incidents involved the same intruder. During the police investigation at Sutherland's house, they found some photographs of an individual matching the descriptions given by Goodwin and Gamroth. Gamroth had not been able to identify the intruder from a book of photographs shown to him by the police. However, both Gamroth and Goodwin identified the man in the photographs taken from Sutherland's house as that of the intruder. While the police were at Sutherland's house, her sister called on the telephone. When the sister was given the description of the intruder, as furnished by Gamroth and Goodwin, she said that it seemed to match the description of appellant Appellant was arrested at his home about 4:30 a. m. that morning. Goodwin identified him as the intruder upon viewing him through a two-way mirror at a time appellant was being interviewed by the police. Both Goodwin and Gamroth made a positive identification of appellant as the intruder at the preliminary hearing and at the trial.

                a former friend of Sutherland.  5  When Sutherland finally returned home, she identified appellant as the person in the photographs and said to be the intruder by Gamroth and Goodwin
                

Appellant contends that the identifications by Goodwin and Gamroth deprived him of due process of law because the witnesses were presented with photographs of only one person (appellant) and because Goodwin's first eyewitness view of appellant through the two-way mirror was not of him in a lineup. Appellant argues that such was impermissibly suggestive and gave rise to a substantial likelihood of misidentification. Further, he argues that such tainted the subsequent eyewitness identifications at the preliminary hearing and in court, making them so questionable as to make their admission into evidence a denial of due process of law.

"In Reinholt v. State, Wyo., 601 P.2d 1311, 1313 (1979), we said:

" ' * * * (W)e recently addressed the propriety of such pre-court identification in Campbell v. State, Wyo., 589 P.2d 358 (1979). We there examined the current status of the law relative thereto and made reference to the pertinent authorities. It would be redundant to again review the matter here except to note the conclusions therein reached relative to the issue. We there concluded that the consideration is whether or not there is a very substantial likelihood of irreparable misidentification upon a totality of the circumstances ; that the pretrial identification evidence is admissible if it possesses features of reliability despite a suggestive aspect; and that in making the determination of reliability, the following factors should be weighed against the corrupting effect of the suggestive identification itself:

" '1. Opportunity of the witness to view the criminal at the time of the crime;

" '2. The witness' degree of attention;

" '3. The accuracy of his prior description of the criminal;

" '4. The level of certainty demonstrated at the confrontation; and

" '5. The time between the crime and the confrontation.' (Emphasis in original.)" (Footnote omitted.) Sears v. State, Wyo., 632 P.2d 946, 947-948 (1981).

Appellant acknowledges such to be the status of the general law relative to this issue but contends that the application of the five factors to the totality of the circumstances of this case reflects the identifications to have been unreliable. We do not agree. We find that the identifications were not impermissibly suggestive under the circumstances; and that, even had they been, they were reliable under the totality of the circumstances of this case.

Identifications are not impermissibly suggestive when the exigencies of the situation require variance of the normal and desirable procedural precautions usually taken to lessen the likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Sears v. State, supra. The exigencies of the situation in this instance are obvious. A 9-year-old child had Furthermore, application of the five factors recognized in Campbell v. State, Wyo., 589 P.2d 358 (1979); Reinholt v. State, Wyo., 601 P.2d 1311 (1979); Sears v. State, supra; and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), reflect the reliability of the identifications under the totality of the circumstances of this case. Each witness had ample opportunity to view the intruder at the time of the crime. Each carried on a conversation with the intruder. The intruder was within arm's length of each. The intruder was in the presence of each for more than fleeting seconds. The intruder certainly had the attention of each witness. He was displaying an attention getting gun. He was the only other person present in each instance-except for the time that Gamroth met him in front of the house with Christy. He threatened to shoot each of them. Their attention could hardly be elsewhere, and the degree of attention had to be high. The prior description given by each witness was sufficient for the police to conclude that the intruder in each instance was the same person, and for Sutherland's sister to attribute such to be of appellant. The descriptions were generally that of appellant. Gamroth did not identify any of the photographs shown to him by the police prior to the time he was shown the photograph of appellant. Each witness was certain of the identification. Cross-examination of each relative to the certainty only emphasized the high level of certainty. The time interval between the crime and the identification was minimal. Under the totality of the circumstances the identifications were reliable. Certainly, appellant has not carried the burden required of him to establish to the contrary. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

been abducted from her home by an armed and masked man. Her welfare was paramount. An immediate identification of the abductor could possibly lead to his apprehension and, perhaps, to the safety of the child. The exigencies were more pressing than those in Simmons v. United States, supra, or in Sears v. State, supra. The procedure utilized in securing the identifications in this case were not unnecessarily suggestive. See Neil v. Biggers, supra.

CONSTITUTIONALITY OF CHILD-STEALING STATUTE

Appellant contends that reversible error exists in the failure of the trial court to sustain appellant's motion to dismiss the count of the information charging child stealing in violation of § 6-4-202. ⁶ He argues that the statute is unconstitutional on its face inasmuch as it does not set forth proper procedures and guidelines guaranteeing that the imposition of the death sentence thereunder is not arbitrary, capricious or based on emotion, passion and prejudice. Such procedure and guidance was mandated...