Gould v. State, 3261

• Decision Date: 02 June 1978
• Docket Number: No. 3261,3261
• Citation: 2 A.L.R. 4th 1288,579 P.2d 535
• Parties: Kenneth P. GOULD, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 535

579 P.2d 535

2 A.L.R.4th 1288

Kenneth P. GOULD, Appellant, v. STATE of Alaska, Appellee.

No. 3261.

Supreme Court of Alaska.

June 2, 1978.

F. P. Pettyjohn, Pettyjohn & Pestinger, Anchorage, for appellant.

John Scukanec, David J. Walsh, Asst. Dist. Attys., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.

OPINION

RABINOWITZ, Justice.

Appellant, Kenneth P. Gould, was found guilty after trial by jury of armed robbery in violation of AS 11.15.240 ¹ and was sentenced to a term of imprisonment for 12 years. We have concluded that Gould's conviction must be set aside, and the case remanded for a new trial.

On April 24, 1976, at approximately 1:00 p.m., Dixie Gipe was working as a sales clerk in the Phase I clothing store located in Anchorage, Alaska. A white male entered and Ms. Gipe asked if she could help him. After he was shown to a display of Levi jackets, he approached the cashier's counter, placed a piece of clothing over his arm, exhibited what appeared to be the barrel of a gun and demanded she open the register. Her supervisor, Vera Grimes, sensing something amiss came to the register and told the robber to take all the money and leave. The robber then left with approximately $550 in currency. Officer Marsters of the Anchorage Police Department responded to a call from the store, talked with Grimes, Gipe and Peggy Letts, another employee, and broadcast a description of the robber as an adult white male, 68 inches in height, slim, long black curly hair with a moustache, dark black suede jacket with a Harley-Davidson emblem on the back and motorcycle boots.

Officer Stambaugh of the Anchorage Police Department came on duty at 4:00 p.m. and became aware of the robbery and the robber's description. Suspecting Gould, he put together a collection of five mug shots from the department's files and combined them in a photographic lineup with a picture of Gould taken from his driver's license. Officer Stambaugh then proceeded to the store where the lineup was shown to Ms. Grimes who identified Gould as the robber. Ms. Letts was also shown the lineup and stated that the picture of Gould most resembled the robber but that she could not positively identify him. Two days later, Officer Otte of the Anchorage Police Department showed the lineup to Ms. Gipe, who also identified Gould as the perpetrator of the robbery.

On April 30th, Officer Walker of the Anchorage Police Department observed Gould at approximately 14th and Fairbanks Avenues in Anchorage. He stopped Gould and arrested him. Gould was wearing jeans and a Levi jacket with a Harley-Davidson emblem on the back. Later that day, Gould was interrogated by Officer Otte. During the course of this interrogation, Gould stated he had a $300 a day heroin habit, "hustled" for his funds, and lived with a woman who had applied for welfare. At the time, Officer Otte observed needle marks on Gould's arms. On May 5th, a corporeal in-custody lineup was held and Dixie Gipe identified Gould as the robber.

Subsequently, Gould filed motions to suppress all evidence relating to the photographic lineup and all evidence relating to the corporeal lineup. The motions were denied. Thereafter, Gould's counsel filed a petition for review seeking review of the superior court's denial of the suppression motions. In its answering brief, the state stipulated that it would not use evidence of the in-custody corporeal lineup since Gould's attorney had not been present.

After trial had commenced, Gould moved for a protective order to prevent the prosecution from introducing the statements made by Gould to Officer Otte relating to Gould's lifestyle and heroin addiction. The prosecution stipulated to the order but reserved the right to reopen the issue if it determined it desired to use this evidence.

Prior to the conclusion of its case-in-chief, the prosecution decided to introduce evidence of Gould's heroin addiction and lifestyle. After extensive argument out of the presence of the jury and over defense counsel's objection, the superior court ruled the evidence admissible. Officer Otte was then called and testified to the statements Gould had made to him at the time of his arrest. More particularly, Officer Otte related that Gould had stated he had a $300 a day heroin addiction, that he was not working, that he "hustled" for money and that he was living with Barbara Wineck, who had applied for welfare. Officer Otte further testified that at the time he interrogated Gould he observed what appeared to be fresh needle marks and scar tissue on the underside of Gould's forearms. In final argument, the prosecutor alluded to Officer Otte's testimony concerning Gould's lifestyle, heroin habit and lack of funds. The prosecution argued that these factors established a motive for the robbery. ²

In his first specification of error, Gould asserts that the superior court erred in admitting the testimony concerning the pretrial photographic identifications, contending the photographic lineup employed by the police was so impermissibly suggestive as to violate constitutional standards of due process. In Buchanan v. State, 561 P.2d 1197, 1204 (Alaska 1977), we held that "(a) procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police." ³ In Buchanan, since three of the six photographs used in the lineup matched the victim's description of the assailant, we concluded "that the photographic lineup was not so suggestive as to create 'a very substantial likelihood of irreparable misidentification.' " ⁴ Id. at 1205. Similarly, in Noble v. State, 552 P.2d 142, 146 (Alaska 1976), we stated that although Noble had the longest hair of the six men portrayed in a photographic lineup and the police knew that the victim had emphasized his assailant's long hair, "the photos (did) not depict men so different in appearance that Noble's picture (could) be said to be truly distinctive among the six." (footnote omitted) In holding that the photographic lineup in Noble was not so suggestive as to create a substantial likelihood of irreparable misidentification, we noted that the lineup was conducted while the incident was still fresh in the mind of the victim and that he "had ample opportunity at the time of the crime to observe the features and physiognomy of his assailant." ⁵ Id.

Our examination of the photographs used in the case at bar to make up the questioned photographic lineup has convinced us that it was not so suggestive as to create "a very substantial likelihood of irreparable misidentification." ⁶ The description given the police by the witnesses to the robbery matches at least three of the persons depicted in the photographic lineup. We also deem it of significance that the prosecution witnesses had ample opportunity to observe the robber during the time he was on the premises of the Phase I clothing store. ⁷

Gould's next specification of error concerns the admissibility of evidence of his heroin addiction introduced by the state in an attempt to show a motive for the robbery. Gould contends that the evidence was more prejudicial than probative and amounts to reversible error.

This court previously has held that a mere association with heroin, "without more," is inadmissible for the purpose of proving motive or intent. Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973). In Eubanks, the state introduced evidence that defendant had purchased heroin from proceeds obtained by pawning items forming the basis for a grand larceny charge. We explained:

Purchase of heroin, without more, does not advance the inquiry into the defendant's state of mind when he participated in pawning the items . . . . Drug users may sometimes steal in order to support their habit; people who steal may sometimes be drug users. However, to introduce a possible drug association without more in order to indicate that the defendant must be a thief requires precisely the type of leap of faith the evidence rules have been designed to prevent.

Id.

We have held evidence of prior narcotics transactions admissible "on the issue of motive for homicide when the accused's prior drug dealings with the deceased were tinged with acrimony and anger." Id., citing Gafford v. State, 440 P.2d 405, 408 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969). In Gafford, we stated that "in our view evidence of (the victim's) refusal to assist appellant in disposing of narcotics was relevant to the issue of motive, viz., that appellant was angry or disgusted with (the victim) because of his unequivocal refusal to help in the disposal of narcotics." Id. Other jurisdictions have allowed evidence of drug use or addiction circumstantially to prove motive when the crime charged involved the theft of narcotics. ⁸ Thus, evidence of drug use or addiction is relevant to motive when there exists some affirmative link between the crime and the use or addiction. On the other hand, "(t)o admit such testimony without showing some affirmative link between the theft and narcotics would show only that the accused is 'a criminal generally.' " Powell v. State, 478 S.W.2d 95, 98 (Tex.Crim.App.1972). ⁹

In Powell v. State, 478 S.W.2d 95 (Tex.Crim.App.1972), the defendant was convicted of theft. Testimony was admitted at trial of an officer's observance of "needle tracks" on the defendant's arm and that such marks were associated with narcotics addiction. The testimony was admitted to show a motive for the theft. The state contended that " 'a narcotic habit requires money to support it and committing the theft would further appellant's habit.' " Id. at 98. The Texas court held:

The chain of inferences is too long and contains too many gaps to allow the introduction of evidence of needle marks alone to show possible motive for theft. The...