Loserth v. State

Decision Date25 February 1998
Docket NumberNo. 1003-96,1003-96
PartiesRalf P. LOSERTH, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Mark Stevens, Jeffrey J. Pokorak, San Antonio, for appellant.

Daniel Thornberry, Asst. Dist. Atty., San Antonio, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge, delivered the opinion of the Court in which McCORMICK, Presiding Judge, BAIRD, OVERSTREET, MANSFIELD, KELLER, PRICE and HOLLAND, Judges, joined.

We recently set forth the standard for courts of appeals' review of trial courts' rulings on motions to suppress evidence based upon Fourth Amendment claims. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). Today we hold that standard is applicable to review of a trial court's ruling on a motion to suppress evidence based upon a claim that an in-court identification should not have been admitted due to taint by an impermissibly suggestive pretrial identification procedure, in violation of the defendant's due process rights under the Fourteenth Amendment. We vacate and remand this case to the Court of Appeals to reconsider the issue presented under the standard of review we articulated in Guzman.

The victim was murdered in her apartment in the early morning hours of May 17, 1992. Lewis Devlin lived in an apartment directly across from the victim in the same complex. Devlin heard a scream, followed by a crash and looked out his window in the direction of the victim's apartment, which was lit. He witnessed a tall, thin man come out of the victim's apartment onto the balcony, step over the railing, and fall to the ground, some 26 feet below. Devlin called the police who later discovered the victim's body. The night of the murder Devlin described the man he had seen only as tall, thin and wearing dark clothes like a jump suit. He did not elaborate on this description during subsequent contacts with the police. This description remained the same in a written statement made four days later and throughout a hypnosis attempt by a Texas Ranger. Over two months later, however, on July 27, the police showed Devlin a single color photograph of appellant, whereupon Devlin immediately identified the man depicted in the photo as the man he had seen exit the victim's apartment on the night of the murder. Devlin thereafter maintained appellant was the man he saw that night, and made an in-court identification of appellant at trial. Devlin testified he withheld details of appellant's appearance out of fear that appellant would come after him. Corroborative of this explanation is the fact that Devlin moved out of this apartment the day after the murder.

Appellant moved to suppress evidence of Devlin's out-of-court identification and to prohibit an in-court identification. Following a hearing on the motion outside the presence of the jury, the trial court ruled:

The testimony regarding the photograph by Lewis Devlin will be suppressed. His in-Court identification of the Defendant, however, I'm going to rule that he had an adequate opportunity to view the Defendant at the time of the offense, and he will be permitted to identify the Defendant in Court.

The substantive legal question presented to the Court of Appeals was whether the in-court identification of appellant was wrongly admitted because it was tainted by the impermissibly suggestive pretrial photographic identification, in violation of appellant's due process rights. Conducting a de novo review, the Court of Appeals held the trial court abused its discretion in permitting the in-court identification.

An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification. The test is whether, considering the totality of the circumstances, "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see also Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991). Reliability is the critical question:

[I]f the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed "reliable," "reliability [being] the linchpin in determining the admissibility of identification testimony."

Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988)(quoting Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). The following five non-exclusive factors should be "weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances":

1. The 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 confrontation, and

5. The length of time between the crime and the confrontation....

Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); see also Brathwaite, supra; Webb, supra. No one disputes this is the applicable substantive law and it was set forth accurately by the Court of Appeals. The dispute here concerns the proper standard of review. We granted the State's petition to decide whether the Court of Appeals acted properly by reviewing de novo the trial court's admission of the in-court identification.

We recently explained the standard of review depends upon the type of question presented to the reviewing court:

[A]s a general rule, the appellate courts, including this Court, should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. The appellate courts, including this Court, should afford the same amount of deference to trial courts' rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the ultimate resolution of those questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo 'mixed questions of law and fact' not falling within this category. This Court may exercise its discretion to review de novo these decisions by the intermediate appellate courts.

Guzman, 955 S.W.2d at 89 (citations omitted). Three types of questions were identified in Guzman: (1) "historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor;" (2) " 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the ultimate resolution of those questions turns on an evaluation of credibility and demeanor;" and (3) " 'mixed questions of law and fact' not falling within [the second] category."

When faced with an issue of mixed law and fact, the critical question under Guzman is whether it "turns" on an evaluation of credibility and demeanor. A trial court's ruling on a mixed question of fact and law will often depend in large part on how the trial court assesses the demeanor and credibility of certain witnesses. For instance, the credibility of the arresting police officer would certainly be weighed heavily by a trial court in a ruling on a motion to suppress evidence based upon an alleged lack of probable cause. But the fact that credibility and demeanor are factors, even important factors, in the trial court's assessment does not necessarily mean the mixed question falls within the second category identified in Guzman. See Guzman (question of probable cause held to fall within third category, not second); Hunter v. State, 955 S.W.2d 102 (Tex.Crim.App.1997)(question of whether appellant was "detained" under Fourth Amendment held to fall within third category, not second). We have suggested that a question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue: 1

The resolution of the mixed question of law and fact presented here--whether the appellant was "detained" within the meaning of the Fourth Amendment--does not "turn" on an evaluation of credibility and demeanor. In other words, even if we believed everything testified to by the State's witnesses, that testimony may not add up to a finding that appellant was not detained under the law.

Hunter v. State, 955 S.W.2d 102, 105 n. 4 (emphasis added). That is not the case with the question here. Even if all of the eye witness's testimony were believed by the trial court, the trial court would not be compelled to conclude that the in-court identification was not tainted. For instance, applying the Biggers factors, if the witness credibly testified that he was not paying attention to the activities at issue, had given a prior description of the defendant that was inconsistent with the defendant's actual appearance, that the witness' identification at the confrontation was tentative, and a year had passed between the crime and the confrontation, certainly the trial court would not be compelled to conclude that the photographic identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, just because the witness was believable. Accordingly, we hold the mixed question of law and fact presented here does not "turn" on an evaluation of credibility and demeanor for purposes of the categories set forth in Guzman. 2 As such, the mixed question of law and fact presented here is subject to de novo...

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