Cantu v. State
| Decision Date | 04 February 1987 |
| Docket Number | No. 69530,69530 |
| Citation | 738 S.W.2d 249 |
| Parties | Ruben CANTU, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
A jury convicted appellant of capital murder and answered the punishment issues affirmatively. In accordance therewith, the court sentenced appellant to death. See Art. 37.071, V.A.C.C.P. Appellant raises six grounds of error, two of which deal with the identification of appellant by a prosecution witness. We turn to these grounds first.
Appellant contends that the out-of-court identification made by Juan Moreno was the result of suggestive procedures employed by the police and created a substantial likelihood of mistaken identification. Therefore, he argues that the in-court identification made by Moreno was tainted and should not have been admitted. He argues that such admission violates his rights under the due process clause of the Fourteenth Amendment to the United States Constitution.
Eusebio Moreno testified that on November 8, 1984, he owned and had built a house located at 605 Briggs Street in San Antonio. His brother, Juan Moreno, and his brother-in-law, Pedro Gomez, were sleeping in the house at night because burglars had stolen some things previously while the house was being worked on.
Juan Moreno testified that on November 8, 1984, he was awakened sometime after 10:30 p.m. by appellant poking him with a rifle. The one light in the room was on when he awoke and saw appellant and his co-defendant. He recognized both men because he had seen them two or three times before in the neighborhood when he was working on the house. Appellant told Juan and Gomez to sit on Gomez's bed, and, pointing the rifle at them told them to give appellant and his co-defendant their watches. They also took Gomez's wallet. Appellant then told Gomez to pull back the mattress. Eusebio had left a pistol wrapped in rags under the mattress. As Gomez pulled back the mattress, appellant told him to give him the rag. Before Gomez could do so, appellant shot him in the head once and then shot him eight more times after he fell, killing him. Appellant then shot Juan several times in the head, neck, and chest. Juan survived the shooting.
Detective James Herring testified that he and Detective John Rivas visited Juan in the hospital on November 14 and showed him some photographs. At that time the police knew only that the suspect lived in the neighborhood where the murder had occurred. Appellant was not among the people pictured in the photographs Herring showed to Juan. Juan did not identify anyone in the photographs.
On December 16, Herring again visited Juan. Juan told the police that one assailant was between 18 and 20 years of age and the other was about 13 or 14 years old. Herring and Detective Ricardo Garza showed Juan five photographs, including a photograph of appellant. Juan said he did not recognize anyone in the photographs. However, both Herring and Garza testified that Juan avoided looking at appellant's photograph, that he "passed it up completely." They said that Juan obviously recognized appellant, but was afraid to identify him. When Garza asked him if he was afraid to identify someone in the photographs, Juan did not answer him.
On March 2, 1985, Detective Santos Caso Ballesa visited Juan at his home. He brought five photographs to show to Juan. The photographs were not the same five that the police had shown to Juan on December 16, but appellant was included in the five Ballesa showed Juan. Ballesa testified that Juan did not identify anyone in the photographs. He said that Juan was visibly shaken and did not want to identify anyone. Ballesa said that Juan told him appellant's name and asked if that were not good enough. Ballesa told him that was not good enough. Ballesa stated that he had the impression that Juan knew appellant by sight and by name, but was afraid for his life if he identified appellant's photograph.
The next day, March 3, Detective Edward Quintanilla went to Juan's house and talked to Juan and his brother. Quintanilla knew that Juan had not identified anyone in the photographs, but felt Juan knew more than he was telling. Juan agreed to follow Quintanilla to the police station to view the photographs again. After looking at the photographs, which were the same ones Ballesa had shown him, Juan looked at the photograph of appellant and told Quintanilla that appellant was the man who had murdered Gomez and had shot him. Juan also stated that he had recognized appellant's photograph before, but was afraid to tell the police. Quintanilla testified that Juan said that he did not know appellant's name.
Juan testified that he had recognized appellant in the photographs that were shown to him on all the occasions. He did not tell the police that it was appellant because he did not want appellant to know where he and his family lived. He was afraid for his life and the lives of his family. He said the police never told him they knew appellant was the one who shot him. He also stated that he knew appellant by sight because he had seen him two or three times before the night of the murder. The night of the murder the light was on in the room and appellant was only a few feet away from him during the entire incident. Juan testified that when he was awakened his eyes had to adjust to the light, but then he could see fine as the light was sufficient to illuminate the whole room. Juan stated that he picked the photograph of appellant because he was the one who shot them. He remembered appellant from the shooting and not from the photographs.
Appellant challenges the in-court identification by Juan, alleging that the out-of-court identification procedures were suggestive and tainted the in-court identification. As appellant notes, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) requires a two step analysis to determine the admissibility of the in-court identification:
1. The photographic display procedure must be impermissibly suggestive; and
2. The suggestive procedure must give rise to a very substantial likelihood of irreparable misidentification.
Analysis under these steps requires an examination of the "totality of the circumstances" of the particular case under consideration and a determination of the reliability of the in-court identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons, supra. See also Jackson v. State, 657 S.W.2d 123 (Tex.Cr.App.1983).
Turning to the first step of the analysis, we agree with appellant that showing Juan several photographic displays on different occasions, each containing a photograph of appellant, when Juan has previously not identified appellant is a suggestive procedure. In the instant case Juan was shown photographic arrays on December 16, on March 2, and on March 3. The arrays in March were the same and contained the same photograph of appellant. We note that a different photograph of appellant was used in the December photographic display from that used in the two displays shown to Juan in March. Not every case in which several arrays or displays of a defendant containing different pictures of a defendant are suggestive. It may be necessary to show a witness different pictures because a defendant may have several "different looks", i.e., different ages, clean shaven and bearded looks. Suggestiveness must be determined by the circumstances of each case. There is no showing of how the photograph of appellant included in the December 16th array differed from the photograph included in the March displays. Nor is any contention made in the instant case that the photographs depicted appellant differently and were necessary to permit the witness to view the "different faces" of appellant.
In the abstract, therefore, the procedure of showing Juan several arrays on different occasions, all containing appellant's photograph, is a suggestive procedure. Such procedure tends to highlight a particular defendant since the witness sees the same face repeatedly. Such reoccurrence of one particular face might suggest to the witness that the police think the defendant is the culprit. Cf. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Therefore, repeated showings of appellant's picture in several arrays was suggestive.
The reasons for a need to repeatedly display a particular person's photograph to a witness are circumstances to be considered with the totality of the circumstances of identification. In the instant case, where police are certain a witness recognizes a suspect but fears to identify his photograph, police have little choice but to reshow the photograph as one means, possibly the only means, to acquire probable cause and to identify the suspect. Such need does not, by itself, change a procedure from suggestive to non-suggestive. However, the necessity aspect is weighed and considered under the second step of the analysis. 1
Given the totality of the circumstances of the instant case we do not think that such suggestive procedure gave rise to a "substantial likelihood of irreparable misidentification." Among the considerations we examine in viewing the totality of the circumstances and the likelihood of misidentification are the five factors set out in Neil v. Biggers, supra and reaffirmed in Manson v. Brathwaite, supra: (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 the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the...
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