Pace v. State, 08-97-00178-CR
| Decision Date | 28 January 1999 |
| Docket Number | No. 08-97-00178-CR,08-97-00178-CR |
| Citation | 986 S.W.2d 740 |
| Parties | James Paul PACE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
David P. Zavoda, Odessa, for appellant.
John W. Smith, Dist. Atty., J. Roderick Price, Deputy Dist. Atty., Odessak, for state.
Before BARAJAS, C.J., LARSEN, and McCLURE, JJ.
James Paul Pace appeals his convictions for two counts of aggravated sexual assault. After a jury trial, he was found guilty and sentenced to fifty years incarceration with a $10,000 fine for each count.
On October 16, 1996, K.H.P., a Cellular One major account manager, attended the Oil Show in Odessa, Texas. After the Oil Show, K.H.P. drove to the Holiday Inn Center in Odessa to attend a business meeting with other Cellular One managers. Later that evening, she went to a hospitality party sponsored by Cellular One in the same Holiday Inn Center. Following the hospitality party, K.H.P. and other Cellular One employees proceeded to a local bar, the New Brewery. At approximately 11:45 p.m., another Cellular One employee drove K.H.P. back to her car.
While attempting to open her car, K.H.P. was hit in the back and grabbed by the neck. She struggled and screamed for help, but was unable to free herself. She was thrown to the ground and her assailant beat her head on the cement curb. Her assailant repeatedly threatened to kill her if she did not do what he said. Every time she tried to look at him, he would hit her with his fist.
He forced her to perform oral sex, then digitally penetrated her anus. Although he had difficulty achieving an erection, he penetrated her vaginally. K.H.P. blacked out. When she regained consciousness, she managed to crawl back to the Holiday Inn Center where some people found and assisted her.
As a result of the attack, K.H.P. underwent several operations on her eyes. Her injuries to her eyes, nose, and face required insertion of a metal plate into her face. She requires more surgery in the future to correct double vision. At trial, Dr. Gary Elam, one of the emergency room physicians who treated K.H.P., testified that the injuries were life threatening and that she could have died of the injuries.
Following the attack, Odessa police officers responded. Almost immediately after arriving, an officer spotted a large white male, wearing a white and blue or black striped shirt, fleeing the area. The officer radioed other officers in the area to set up a perimeter. Appellant James Pace was later apprehended by Officers Harvey Enriquez and Keith Carpenter. Officer Enriquez noticed that the appellant's pants were covered in blood.
Pace then participated in a "showup," which is a police procedure where the actual victim of a crime or other witness is brought to a location to look at a suspect to see if the victim or witness can identify the suspect. Pace was removed from the police squad car, uncuffed, and placed between several police officers. E.R., a woman who had been the victim of another attempted sexual assault earlier that evening, identified Pace as her assailant. Pace was advised that he was being arrested for sexual assault. He made two statements while in custody.
In his first point of error, Pace contends that the trial court erred in denying his motion to suppress the in-court identification of the appellant by E.R. because it was tainted by an impermissibly suggestive out-of-court identification procedure conducted by the Odessa Police Department.
The trial court is the sole finder of fact in a motion to suppress hearing. 1 The trial judge is free to believe or disbelieve any or all of the evidence presented. 2 The courts of appeals review a trial court's ruling on a motion to suppress evidence according to the abuse of discretion standard. 3 The courts of appeals will not overturn a trial court's ruling if it is supported by the record. 4 More specifically, the in-court identification will be admissible and the trial court's ruling effectively upheld if the indicia of reliability outweigh the apparent corrupting effect of any unnecessarily suggestive pretrial occurrence. 5
A two-step analysis is used to determine the admissibility of an in-court identification. 6 First, we examine whether the identification procedure was impermissibly suggestive. 7 Second, if we conclude the identification was the result of a suggestive procedure, we determine whether or not it gives rise to the substantial likelihood of irreparable misidentification, 8 examining the totality of the circumstances. 9 It is the defendant's burden to show by clear and convincing evidence that the in-court identification is unreliable. 10 11
Unnecessarily suggestive identification procedures can violate an accused person's right to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution. 12 An identification that results from the police presenting the victim with only one suspect, implying that the individual is the culprit, and then asking the victim to identify the criminal, is dubious because of its suggestiveness. 13 Under certain circumstances, however, such an identification, termed a "one man showup," may be permissible. 14 Although showups are problematic, in-court identifications following a showup are not per se violations of due process. 15 Rather, the independent reliability of an in-court identification will be determined by a totality of the circumstances test. 16 Our analysis includes the following factors in determining the independent reliability of the identification: (1) the witness's opportunity to view the accused at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the pretrial confrontation; and (5) the time between the crime and the confrontation. 17 These and other relevant factors are weighed against the corrupting effect of the unduly suggestive identification. 18
In this case, the in-court identification was made by E.R., a victim of an earlier attempted sexual assault the same evening as the assault on K.H.P. The witness testified that during the attempted sexual assault, she saw her attacker and remembered his face. She described him to the police as 5'1", 210 pounds, blond hair, wearing a blue pullover shirt. The police took E.R. to a "showup" on the morning of October 17, 1996, approximately three hours after the attack upon her. At the showup, E.R. started shaking noticeably and said, "Yes, that's him, that's him, that's him." At trial, over defense counsel's objections, she identified Pace as her attacker.
Initially, we find that this one-man showup was impermissibly suggestive. We therefore must consider the factors previously outlined in determining whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. First, we note that the witness was able to see her attacker several times and remember his face. She testified that she was not on medication, had not been drinking, her mind was clear, and she was thinking clearly. Although she had not accurately described Pace's height or hair color in her earlier description, she was definitive in her identification at the showup. Finally, the elapsed time from the incident to the showup was reasonable. Based on the totality of the circumstances, we find that her in-court identification was admissible and the trial court did not abuse its discretion because the indicia of reliability outweigh the apparent corrupting effect of any unnecessarily suggestive pretrial occurrence. Appellant's first point of error is overruled.
In Point of Error Two, Pace asserts that the trial court erred by not granting his motion for mistrial following improper jury argument by the prosecutor. The argument complained of was:
When I go home tonight and I go to bed, I know in my heart that James Paul Pace is not raping anyone, and if you do what I am asking you to do, 20 or 30 years from now when I lay my head down to sleep, I can say to myself, James Paul Pace isn't raping anybody because he is where he belongs. He committed a horrible, vicious crime, as bad as any I have ever seen--
Immediately, appellant's counsel objected to this as outside the record and injecting the prosecutor's opinions before the jury. The trial court sustained the objection, instructed the jury to disregard the argument, but overruled appellant's motion for mistrial.
Improper jury argument constitutes reversible error only if, "in the light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused, into the trial." 19 Generally, a prosecutor may not give his personal opinion on an issue in the case, because the jurors may infer that the prosecutor's opinion was based on outside information not available to the jury. 20 The prosecutor's argument here fell within this rule, and the trial court correctly ruled it was improper.
An instruction to disregard improper jury argument generally is sufficient to cure improper argument error, however. 21 A mistrial is necessary only where the jury argument is manifestly improper or so extreme that an instruction to disregard will not work to cure the error. 22 Where the prosecutor argues outside of the record and injects personal opinion, an instruction to disregard will cure error unless the argument "is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced on the juror's [sic] minds." 23 Other cases addressing similar complaints in which the prosecutor implied the case being tried was one of the worst cases in which he had ever been involved have held that the...
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