Brigman v. State, A-12727

CourtCourt of Appeals of Alaska
Writing for the CourtALLARD JUDGE
PartiesJEFFREY ERIC BRIGMAN, Appellant, v. STATE OF ALASKA, Appellee.
Decision Date22 April 2022
Docket NumberA-12727

JEFFREY ERIC BRIGMAN, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-12727

Court of Appeals of Alaska

April 22, 2022


Appeal from the Superior Court, Third Judicial District Trial Court No. 3AN-13-09635 CR, Anchorage, Kevin M. Saxby, Judge.

Justin N. Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. [*]

OPINION

ALLARD JUDGE

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Jeffrey Eric Brigman was convicted, following a jury trial, of felony driving under the influence.[1] In his original appeal, Brigman argued that the superior court erred when it failed to suppress an out-of-court eyewitness identification that resulted from a showup procedure.[2] Because the superior court had not analyzed the showup identification under the Alaska Supreme Court's newly adopted Young standard, we remanded Brigman's case so that the superior court could conduct that analysis.[3]

On remand, the superior court found that the showup identification was sufficiently reliable under Young and was therefore admissible at trial. Brigman now appeals that ruling. For the reasons explained here, we conclude that the superior court did not err in its Young analysis.

Relevant facts

Around 10:00 p.m. on a September evening in 2013, a woman stepped out of a gas station in Anchorage to find that her car had been stolen. A few minutes later, the driver of the stolen car crashed into a sidewalk area near 10th Avenue and Juneau Street.

Thomas Jenkins, who was walking his dog on 10th Avenue, witnessed the crash, and he approached the driver to offer assistance. Jenkins believed, based on his contact with the driver, that the driver was under the influence of something. Jenkins

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spoke to the driver briefly before leaving to retrieve his cell phone and call 911.[4] The driver left the scene before Jenkins returned.

When Jenkins called 911, he described the driver as a man with black hair, gray clothing, and wearing a zippered hoodie. Jenkins thought the man was white, but he could not be sure. Jenkins also told the 911 operator that the man might have walked south on Ingra Street when he left the scene.

Almost immediately after this 911 call, Officer Angelina Fraize spotted and detained a white male suspect with dark hair and dark clothing walking south on Ingra Street, approximately a block from the crash scene. This suspect was Brigman. At trial, Officer Fraize described Brigman as "obviously intoxicated," "sweaty," and "nervous."

Another officer, Steven Childers, brought Jenkins to where Officer Fraize was holding Brigman, so that the police could conduct a showup identification - asking Jenkins if he could identify Brigman as the driver he had spoken to several minutes earlier. To facilitate this showup, Officer Fraize had Brigman stand next to her police car in handcuffs.

Before asking Jenkins whether he could identify the man standing next to the patrol car, Officer Childers specifically instructed Jenkins that this man might or might not be the right person. Jenkins identified Brigman as the driver of the crashed vehicle.

At trial, Jenkins testified to his identification of Brigman. Jenkins testified that Brigman was wearing a gray hoodie at the time of the crash. (Brigman was not

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wearing a hoodie in the photograph taken of him at the scene of the showup identification.)

Another eyewitness to the crash also identified Brigman at trial. This second eyewitness testified that he was drunk when he witnessed the crash and that the police never asked him to participate in a showup identification or any other out-of-court identification. Instead, at trial, this eyewitness was shown the photograph of Brigman taken during the showup identification with Jenkins. This second eyewitness identified Brigman as the driver of the crashed vehicle, although he stated that he could not be sure. The eyewitness had previously described the driver as a white male adult wearing a gray shirt with wavy, dark-colored, shoulder-length hair. (Brigman's hair in the photograph is shorter than shoulder-length.)

Brigman was convicted at trial.

Brigman's motion to suppress and our remand to the superior court

Prior to trial, Brigman moved to suppress the results of the showup identification by Jenkins, arguing that the showup procedure was improperly suggestive and that the resulting identification was therefore unreliable.

The superior court held an evidentiary hearing on this motion. After evaluating the showup under the then-existing legal test set forth in Anderson v. State and Manson v. Braithwaite, [5] the court ruled that the result of the showup was admissible.

However, after the superior court made its ruling, the Alaska Supreme Court adopted a new test for evaluating there liability of out-of-court police identification

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procedures in Young v. State.[6] In Brigman's initial appeal, the State conceded that the Young test applied to Brigman's case, and we therefore remanded the case to the superior court to conduct the appropriate analysis under Young.[7]

An overview of the Young test

In Young v. State, the Alaska Supreme Court held that the Anderson/Braithwaite test for evaluating the reliability of out-of-court eyewitness identifications did not adequately protect a defendant's right to due process under the Alaska Constitution.[8] In its place, the court adopted a new test that was modeled after the test set forth by the New Jersey Supreme Court in State v. Henderson.[9]

The supreme court had two principal reasons for adopting this new test. First, the Young test corrected some of the deficiencies of the former test by requiring trial judges to consider scientifically grounded variables when assessing the reliability of an out-of-court identification procedure conducted by the police.[10] Second, in cases where the trial court does not order suppression of an out-of-court identification, the

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Young test prescribed improved jury instructions to assist jurors in evaluating the out-of-court identification according to these scientifically grounded variables.[11]

Under Young, a trial court is required to consider two sets of variables when evaluating whether to suppress the results of an out-of-court eyewitness identification. The supreme court referred to the first group of variables as "system variables" (those variables that are within the control of the law enforcement officers who are conducting the identification procedure) and "estimator" variables (those variables intrinsic to the event that are not within the control of law enforcement).[12]

Under the Young test, a defendant who seeks suppression of an out-of-court identification must show "some evidence," tied to a system variable, tending to show that the identification procedure was tainted by suggestiveness that could lead to a mistaken identification.[13] System variables include both how the identification was structured (e.g., whether it was the product of a showup, a lineup, or a photographic array) and the procedures surrounding the identification (e.g., the composition of the lineup, whether the witness received properly neutral pre-identification instructions or, instead, improper confirmatory feedback). Young outlines the following non-exhaustive list of system

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variables for a trial court to consider when determining whether a defendant has met this initial burden of showing "some evidence" of suggestiveness:

1. Blind Administration. Was the identification procedure performed double-blind (i.e., was the person administering the procedure kept ignorant of the identity of the person who was suspected)? If double-blind administration of a photo lineup or physical lineup was impractical, did the police at least use a technique to ensure that the administrator had no knowledge of where the suspect appeared in the photo array or lineup?[14]
2. Pre-identification Instructions. Did the administrator provide neutral pre-identification instructions to the witness being asked to make the identification, warning the witness that the suspect may not be present in the lineup and that the witness should not feel compelled to make an identification?[15]
3. Lineup Construction. Did the photo array or lineup contain only one suspect embedded among at least five innocent fillers? Did the suspect stand out from other members of the lineup?[16]
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4. Feedback and Recording Confidence. Did the witness receive any feedback from the police or from another witness before, during, or after the identification procedure? If the witness made a statement regarding their level of confidence in the identification, did the administrator record the witness's statement of confidence immediately after the identification, before any possibility of confirmatory feedback?[17]
5. Showups. Was the witness identified in a showup? Did the police perform the showup more than two hours after the event? Did the police warn the witness that the person they were about to view may not be the perpetrator, and that the witness should not feel compelled to make an identification?[18]
6. Multiple Viewings. Was the witness exposed to the suspect after the crime but before making the identification? Did the witness fail to identify the suspect in an earlier procedure?[19]
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Again, Young states that a defendant need only show "some evidence" of suggestiveness from the above non-exhaustive list of system variables in order to obtain an evidentiary hearing on their suppression claim.[20]

If the defendant establishes the need for an evidentiary hearing, the burden of production shifts to the State. The State must offer evidence that, even...

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