Fields v. State

• Decision Date: 06 August 1971
• Docket Number: 1138,Nos. 1137,s. 1137
• Parties: Eugene P. FIELDS and Joseph P. Bassett, Appellants, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 831

487 P.2d 831

65 A.L.R.3d 680

Eugene P. FIELDS and Joseph P. Bassett, Appellants, v. STATE of Alaska, Appellee.

Nos. 1137, 1138.

Supreme Court of Alaska.

Aug. 6, 1971.

Robert C. Erwin, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellant, Fields.

B. G. Johnson, Anchorage, for appellant, Bassett.

G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Keith E. Brown, Asst. Dist. Atty., Anchorage, for appellee.

Before BONEY, C. J., DIMOND, RABINOWITZ and CONNOR, JJ., and LEWIS, Superior Court Judge.

OPINION

BONEY, Chief Justice.

Fields and Bassett appeal from convictions, after jury verdicts, of the offenses of assault with a dangerous weapon, attempted robbery, robbery, and grand larceny. Their grounds for appeal are nearly identical, and their cases will be considered together.

On October 12, 1967, Michael Warburton, Patrice Warburton, Betty Bryson, and her sons David and Michael Bryson were at the Warburton residence at Moose Pass, Alaska, on the Seward Highway. At about 10:30 p. m. two men wearing nylon stockings over their heads burst into the living room and held David Bryson and Michael Warburton at gunpoint, ordering them into the den and striking one of them who was slow to react. One of the assailants shot at the family dog. Betty Bryson, Michael Bryson, and Patrice Warburton appeared, and they were all told to lie down on the floor.

At about this time Mr. Leroy Bryson arrived at the residence. The assailants held him at gunpoint, searched him, and bound his hands. The two robbers also opened Mrs. Bryson's purse, dumped its contents on the floor, and went through her wallet.

After the robbers had made threats upon the victims, Leroy Bryson finally agreed to open the safe in the nearby jewelry shop belonging to the Warburtons. Mrs. Bryson and the children were left in the basement with the basement door jammed so that they could not get out. Upon entering the jewelry shop, the robbers took a substantial quantity of gold nuggests, casting gold, some currency, and commemorative coins. The robbers took Mr. Bryson back to the basement of the Warburton house where the other victims were present. According to Leroy Bryson there had been some talk about killing him by one of the robbers, but the other was against such a course of action. When Leroy Bryson was returned to the Warburton residence, all of the victims were tied up once again and the telephone was pulled off the wall. The robbers then left, and it took approximately 10 to 20 minutes before the Brysons and the others were able to free themselves. Leroy Bryson then hastened to a nearby place to call the police.

At approximately 1:20 a. m. on October 13th, Bassett and Fields were stopped by the Alaska State Troopers in a roadblock at Milepost 107 on the Seward Highway, about 80 miles from the scene of the robbery. No arrest was made, however, at that time. Bassett was driving a 1963 white Ford automobile which he had borrowed from a friend. At trial Leroy Bryson testified that he was able to see the vehicle used by the robbers, and he described it as being white or cream-colored.

Fields and Bassett were subsequenly arrested on charges stemming from the jewelry shop robbery, and were brought to trial and convicted.

On appeal Fields and Bassett raise the issues (1) whether certain testimony tending to identify the defendant Fields was properly admitted, (2) whether the court erred in giving a supplemental verdict-urging instruction to the jury after it had been deliberating for nearly two days, and (3) whether the court erred in excluding certain testimony offered to impeach the witness Perry as to (a) his use of narcotics and (b) his reputation for truth and veracity.

ADMISSION OF IDENTIFICATION TESTIMONY

We deal first with the appellants' contention that the trial court erred in admitting certain identification testimony of the witness Michael Warburton. Michael's identification testimony was prefaced by the state's request that the defendants place nylon stockings over their faces. Following this request the jury was excused and a substantial voir dire occurred during which the state atempted to justify its request. During the voir dire, Michael indicated, in response to a question by the court, that he could not identify either of the defendants beyond a reasonable doubt:

Q. Well, but the question is, can you identify anyone here now without a stocking over their head relative to the-who was in that house and-and-went through the activities you testified to?

A. I cannot do it without a reasonable doubt.

After the lengthy voir dire, the court ruled that it would not direct the defendants to wear nylon stockings. The jury was returned and the following testimony was heard:

Q. Michael, I ask you whether or not-you can look in the courtroom and whether you see the person or persons that you referred to having been in the Warburton home on Ocotober 12, 1967?

A. I cannot positively say that I recognize them.

Q. Now, you're saying then that there is some-some question in your mind as to exactness?

A. Yes.

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* * *

Q. Based, Michael, on your observation of the men that you have referred to as being in the Warburton home on October 12, 1967, at the time of the robbery, do you see any persons present in the courtroom that you observed on this night?

* * *

* * *

A. Yes, I think I can recognize somebody here.

Q. All right. Would you point that person whom you fell you recognize out please?

A. It is that man on the left (indicating).

Q. Can you describe him?

A. He is short, dark hair, dark features.

Q. I see. He's is sitting-the one sitting to the right of Mr. Brundin (indicating)?

A. Yes.

On cross examination, Michael indicated that he could not positively identify the defendants. However, he did state that he was rather certain of his belief that Fields was the man who was in the house when the crime was committed.

Appellants claim that this identification testimony was not sufficiently positive to become admissible, and that its admission was prejudicial because of the particular circumstances of this case, in which the assailants wore stockings over their faces. Four of the robbery victims were unable to identify either assailant. But there was other evidence, besides the testimony of Michael Warburton, which pointed to Fields and Bassett as the perpetrators of the offense. The witness Leroy Bryson made a much more positive identification than did Michael Warburton. There was also circumstantial evidence which tended to identify appellants.

Appellants ask that we adopt a rule which would render identification testimony inadmissible unless the witness is positive. In support of such a rule appellants cite People v. Bryan, 27 Ill.2d 191, 188 N.E.2d 692 (1963); People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232 (1966); Ross v. State, 190 So.2d 187 (Fla.Ct.App.1966); People v. Barbosa, 254 Cal.App.2d 581, 62 Cal.Rptr. 212 (1967); United States v. Beigel, 254 F.Supp. 923 (S.D.N.Y.1966), affirmed 370 F.2d 751 (2d Cir. 1967); Peterson v. District of Columbia, 171 A.2d 95 (D.C.Mun.App.1961); and Hendrix v. United States, 327 F.2d 971 (5th Cir. 1964). The state counters this argument with authorities which permit the introduction of testimony less than positive. People v. Cahan, 141 Cal.App.2d 891, 297 P.2d 715 (1956), cert. denied, 352 U.S. 918, 77 S.Ct. 214, 1 L.Ed.2d 124 (1956); State v. Dutton, 83 Ariz. 193, 318 P.2d 667 (1957); State v. Williamson, 78 N.M. 751, 438 P.2d 161 (1968), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968); People v. Lewis, 240 Cal.App.2d 546, 49 Cal.Rptr. 579 (1966); People v. Pleasant, 268 Cal.App.2d 28, 73 Cal.Rptr. 648 (1968); State v. Ellingson, 283 Minn. 208, 167 N.W.2d 55 (1969); Mason v. State, 244 Ind. 206, 191 N.E.2d 705 (1963); and Bustos v. People, 158 Colo. 451, 408 P.2d 64 (1965).

We find the cases cited by appellants to be distinguishable in one or more respects. In People v. Bryan, supra, and People v. Gardner, supra, there was substantial alibi evidence which had to be weighed against less than adequate eye witness identification. In both cases the issue presented was whether the evidence in its totality was sufficient to support a conviction. It is not contended in the case at bar that there was insufficient evidence for the case to go to the jury, but merely that the testimony of Michael Warburton should not have been admitted. In Ross v. State, supra, there was very little opportunity for the witnesses to even observe the distinguishing characteristics which would tend to identify the perpetrator of a larceny. The victim was unable to make any positive identification from photgraphs exhibited to him, but selected the pictures of several persons as being possible suspects. It was only at a later lineup that the victim selected a particular person as being the thief. The court employed the salutary rule that in order for the proof to be sufficient there must be an opportunity to observe the features, voice, mannerisms, or demeanor of the assailant so as to be able to isolate that person in the mind and memory of the witness with sufficient clarity to make a subsequent identification.

In People v. Barbosa, supra, the victim of the offense was very uncertain about the identity of the assailant, and only hearsay evidence was left with which to connect the accused to the commission of the crime. In Peterson v. District of Columbia, supra, the total evidence established only a possibility and not a probability that the accused was the perpetrator of the offense. Hendrix v. United States, supra, holds that there must be something more than a mere resemblance in order to establish identity of the accused, but that the testimony need not be entirely positive. In United States v. Beigel, supra, there was only one identifying witness. The method by which identification was achieved was fraught with defects....