Buchanan v. State

• Decision Date: 27 September 1976
• Docket Number: No. 2553,2553
• Parties: Terry C. BUCHANAN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1153

554 P.2d 1153

Terry C. BUCHANAN, Appellant, v. STATE of Alaska, Appellee.

No. 2553.

Supreme Court of Alaska.

Sept. 27, 1976.

John W. Hagey and Stephen R. Cline, Fairbanks, Brian Shortell, Anchorage, for appellant.

David Mannheimer, Asst. Dist. Atty., and Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

RABINOWITZ, Justice.

Appellant Terry Buchanan appeals from his conviction and sentence of 5 years' imprisonment for the crime of lewd and lascivious acts toward a child in violation of AS 11.15.134. ¹ In his appeal Buchanan has asserted six separate specifications of error pertaining to the trial and also has attacked the sentence imposed as excessive.

A brief review of the facts as developed at trial will be undertaken at this point before addressing seriatim Buchanan's specifications of error. On October 18, 1974, at approximately 7:30-7:45 p. m., Jane Doe, ² a 9-year-old girl, was sent by her babysitter to a neighborhood grocery market to purchase some diapers. Jane had to traverse approximately four Fairbanks city blocks to reach the store from her home in Birch Park. She testified tht on the way to the store an unknown man in a parked car asked her if she was 'Dee Dee's sister' and 'Would you take a package.' The car was green and white, had 'sort of rectangled' windows (opera windows) and had a piece of cardboard against its back window which was identified by complainant at trial as a license plate tag. ³ After declaring, 'Well, you're not Dee Dee's sister' the man drove off.

After proceeding to the Denali Store and making her purchases, Jane observed the same car heading away from the store and towards Lathrop Street and then saw the car again travelling in the opposite direction down Lathrop. Finally, she sighted the car parked on Lathrop Street. At this time Jane saw the car's occupant ahead of her walking towards Birch Park; then observed him turn around, and walk towards her. The man then took her bag of groceries and walked across the street. She followed him to get her bag back. At this point he told her he had lost his keys and would 'give (her) a couple of dollars if (she would) help me find my keys.' According to Jane's testimony the man was wearing black square-frame glasses at the time.

Jane then told the man she would help him after she had brought her groceries home, but as she reached for her bag the man put his hand over her mouth and said, 'Hush, or I'll kill you.' He then pulled down her pants and underpants after forcing her to the side of a boat parked on the corner of Stewart and Denali Streets, unzipped his own pants, and attempted penetration. The attack ended when a horn sounded and Jane's assailant observed two boys approaching.

Jane's babysitter, Linda Biggers, testified Jane Doe Returned to the apartment between 8:30 and 8:45 p. m. and somewhere between 20 and 30 minutes later they left for the hospital. Detective Morrell Lions testified over defense objection that Jane Doe had, three days after the incident, identified a car similar to Terry Buchanan's as the type her assailant had driven. Officer Lions further stated that Jane Doe picked Terry Buchanan out of a six-photograph lineup shown her shortly after the attack had taken place.

Buchanan's defense was that he was not the person Jane Doe identified as the assailant. He called several witnesses whose testimony was to the effect that on the evening in question he left the Jim Thompson Ford Agency, where he was picking up his car, shortly after 8 p. m. ⁴ purchased gas on the way home, ⁵ and arrived home at approximately 8:30 p. m. Shortly after his arrival home Buchanan began watching 'Good Times' on television. ⁶ In the course of his testimony Buchanan testified he was not in the area of Denali Store on the night in question and that he had not seen Jane Doe prior to his courtroom appearances in the case. ⁷

For his first specification of error Buchanan contends that the superior court erred in admitting testimony concerning pretrial photographic identification of the assailant's vehicle because such testimony was hearsay and the photographic identification procedures employed by the police were 'manifestly unfair.' Three days after the purported attack had occurred Detective Morrell Lions of the Fairbanks Police Department arranged for Jane Doe to view pictures of automobiles which were collected in a police automobile mug book. Jane Doe had previously described the vehicle as having green color on the bottom with a white stripe; a cardboard square in the rear window; and 'sort of rectangled' windows in the back. From this description Detective Lions assumed the cardboard in the rear window was a temporary license plate and that the vehicle was new. Proceeding on this assumption he commenced the vehicle identification procedures by showing Doe pictures of new cars. Photographs of newer vehicles were located at the back of the mug book. Doe identified a 1974 Mercury Cougar as being like the car in question. This car was the first two-tone car with opera windows she saw in the book. She did not look any further in the book, though a Thunderbird several pages further on also had opera windows. The record also reflects that Doe had earlier stated that the car of her assailant looked like that of Willie Toomer, a friend who owned a 1974 Thunderbird.

In light of these facts Buchanan argues that the vehicle identification procedures employed here were manifestly unfair since the police stopped at the first identification picture chosen and because they failed to furnish Jane Doe with any pictures of Thunderbirds. Buchanan further contends that Detective Morrell Lions' testimony as to Jane Doe's identification was hearsay and not, as the superior court held, susceptible to categorization as state-of-mind evidence, an exception to the hearsay rule. The state counters by asserting, as to the unfairness argument, that Detective Lions was not aware at the time he showed Jane the book of her statements regarding Willie Toomer's Thunderbird. Additionally, the prosecution argues that saying a car is like another is not the same as saying it was the same model.

We reject Buchanan's arguments of unfairness as unfounded. These contentions go to the weight of the testimony concerning the automobile photographic identification, not to admissibility. Concerning Buchanan's position that Detective Morrell Lions' testimony was hearsay and thus inadmissible, we have concluded that this contention must also be rejected. Employing a traditional analysis, we are in agreement with the state's contention that Detective Lions' testimony regarding the vehicle identification by Jane Doe was admissible as corroborative of the in-court identification testimony given by Jane Doe of the vehicle after her identification had been attacked. This 'attack' occurred during the cross-examination of Doe when Buchanan's attorney propounded several questions concerning her exposure to the vehicle photographic lineup as well as her initial descriptions of the vehicle to the grand jury. ⁸ It is firmly established that if the credibility of a witness has been attacked on the basis that influence of others has altered her story, supporting evidence in the nature of prior consistent statements may then be introduced. ⁹ Under this traditional rule we hold that the superior court did not err in permitting Officer Lions' testimony regarding Doe's initial extrajudicial identification of the type of vehicle involved in the incident.

Although we do not decide the question at this time, we also think there is considerable merit in the state's argument that a new exception to the hearsay rule should be recognized. The state contends that witness A may testify as to witness B's extrajudicial identification if the circumstances surrounding the prior identification were not such as to render it unfair or unreliable, and witness B is available for cross-examination. ¹⁰ Professor Wigmore supports such a rule ¹¹ as do a large number of courts, ¹² both on the basis of the reliability ¹³ of such evidence and because cross-examination is readily available. ¹⁴ If the rationale behind the hearsay rule is that the declarant cannot be cross-examined and cannot be observed by the trier of fact, such rationale is inapplicable when the person actually making the identification is available at trial. ¹⁵ Jane Doe's out-of-court identification of the vehicle was not made in circumstances which would render it unfair or unreliable, and since Jane was available for cross-examination, Officer Lions' testimony was arguably admissible under the new exception to the hearsay rule that the state has advanced in this appeal.

Buchanan, in his next specification of error, asserts that the superior court erred in admitting any testimony as to Jane Doe's pre-trial photographic identification of Terry Buchanan because the identification procedure violated due process as guaranteed by the United States and Alaska Constitutions. More particularly, Buchanan argues that the photographic lineup was so suggestive and prejudicial as to amount to a denial of due process.

A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the policy. Cf. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1203 (1967). There the victim was in a hospital and the accused brought to bedside for identification. The Supreme Court held that the questioned procedure was justified by necessity. In Simmons v. United States, 390 U.S. 377, 382, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247, 1252 (1968), six photos of robbery suspects were shown to each witness one day after the crime. The Supreme Court held that the photographic identification procedures were not so impermissibly suggestive as to give rise to...