Peterson v. Littlejohn

• Citation: 56 Wn.App. 1,781 P.2d 1329
• Decision Date: 13 November 1989
• Docket Number: No. 22154-0-I,22154-0-I
• Parties: Dale Dan PETERSON, Respondent, v. R.B. LITTLEJOHN and Jane Doe Littlejohn, husband and wife, and the city of Bellevue, Appellants.
• Court: Court of Appeals of Washington

Page 1

56 Wn.App. 1

781 P.2d 1329

Dale Dan PETERSON, Respondent, v. R.B. LITTLEJOHN and Jane Doe Littlejohn, husband and wife, and the city of Bellevue, Appellants.

No. 22154-0-I.

Court of Appeals of Washington,

Division 1.

Nov. 13, 1989.

Richard L. Andrews, Bellevue City Atty. and David Kahn, Bellevue, for appellants, City of Bellevue and Littlejohn.

David Allen, Richard Hansen and Donald Roistacher, Seattle, for respondent.

COLE, Judge Pro Tem. ^*

The City of Bellevue and R.B. Littlejohn and his wife appeal the entry of a judgment against them for the malicious prosecution of the respondent Dale D. Peterson. Peterson has filed a cross-appeal, challenging the trial court's pretrial dismissal of his claim for violation of his civil rights. We affirm the trial court in all respects except its dismissal of the civil rights claim.

On June 28, 1984, a 14-year old female hitchhiker in Bellevue was picked up by a man in a tan pickup truck. The man agreed to take her to Skate King, but drove past and voiced his intention of raping her. She jumped from the moving vehicle and made her way to Skate King. The next day she reported the incident to Bellevue Police Detective Littlejohn with whom she was previously acquainted. At trial the victim said she was testifying to help Littlejohn, a defendant.

In her initial interview with Littlejohn on June 29, 1984, the victim described the perpetrator as having acne bumps and a scar on his right eyebrow. These marks were referred to in investigative reports and the composite drawing of the suspect prepared by Littlejohn. ¹ The victim further described the perpetrator as a bearded, white male, age 40, weighing 200 pounds and 6 feet 2 inches tall. The suspect's vehicle was described as a beat-up, tan pickup without a tailgate of mid-1970's vintage. The victim also described the interior of the truck and the offender's clothing in some detail. A composite drawing of the suspect was then sent to the police for use in apprehending the perpetrator.

On June 30, 1984, plaintiff Dale Peterson and his girlfriend were observed by Bellevue police while driving Peterson's red VW in Bellevue. Noting Peterson's similarity to the composite drawing, the officer stopped Peterson for a traffic violation. The officer contacted Littlejohn and, at his direction, prepared a field interview report (FIR) card on Peterson and released him. The FIR investigation disclosed that Peterson was "presently out on bail on a rape charge in Pierce County". ²

Littlejohn contacted Peterson who voluntarily came to the Bellevue Police Station on July 10, 1984, so that his photo could be taken. According to his deposition testimony of January 1986, when viewing Peterson in person on July 10 Littlejohn saw no evidence of any acne and failed to look for the scar in the eyebrow, because "it didn't cross my mind at the time." On July 11 a photo montage including a photo of Peterson which shows no evidence of acne or scarring was shown to the victim.

Upon viewing the montage, the victim picked Peterson as her assailant. She then filled out a form stating that she was able to identify Peterson by the "marks on his face, scarred eyebrow and hair". Although Littlejohn knew that Peterson, personally and in his photo, showed no sign of a scar or acne, he did not question the victim regarding her stated reasons for selecting Peterson.

Based on the photo identification, Littlejohn arrested Peterson on July 12. Excluding the weekend, charges had to be filed or Peterson released by July 17, 1984. The case was assigned to prosecutor Rebecca Roe who prepared the necessary paperwork for filing the charge. Roe then asked prosecutor Kathy Goater to verify that Peterson had acne and a scar on his eyebrow consistent with the victim's description. Goater called Littlejohn on July 17 and asked him to go to the jail and verify those matters. Goater testified as follows:

A. I talked with Detective Littlejohn on the telephone and told him that we had to confirm whether or not the defendant had two identifying features; Mr. Peterson. I called him the defendant. That's the way I talk, being in criminal work, and asked whether or not he would have these two identifying features, and asked Detective Littlejohn to go to the King County Jail and take a look at him and tell me whether or not he had a scar on his eyebrow and had acne.

Detective Littlejohn responded that he did not need to do that. He stated that he had been--I believe he indicated he had been involved in the booking process, which is actually the arrest and taking someone into jail and the mechanics you go through in booking someone into jail, and had already looked at the suspect in this case, Mr. Peterson.

Q. And what did he say about Mr. Peterson?

A. He told me Mr. Peterson had acne, and he also told me that he did not per se have a scar in his eyebrow but he described to me that in his eyebrow there was a mark across his eyebrow where the hair of his eyebrow grew together at different angles leaving a mark through the eyebrow, except, I guess, by his hair growth that would be mistaken for a scar.

As a result of that confirmation, the charges were filed on July 17, 1984. Bail was set at $50,000 and Peterson remained incarcerated until bail was reduced on August 9, 1984.

On July 17, Goater and Littlejohn interviewed the victim. Goater's notes, which she began taking mid-way through the interview, reflect that the victim described the eyebrow scar as fairly major: "She indicated it appeared to be a burnt mark as if part of the eyebrow had been burned away and that half of the eyebrow was missing." Littlejohn was present but said nothing about the absence of any scar on Peterson's eyebrow.

In addition, Goater testified to her substantial concern that Peterson had never been linked to a tan pickup. On July 26, 1984 Littlejohn had the composite drawing of the suspect published in an eastside newspaper. A Redmond teenager testified that the picture strongly resembled a man for whom she used to babysit who had bad acne and drove an off-white pickup. She contacted Littlejohn who came to her home to interview her and her mother. Littlejohn did not take written statements from either woman. However, he was able to identify the man by name and to acquire a driver's license picture from the Department of Licensing (DOL). The picture strongly resembles the composite drawing and even appears to show scarring on the right eyebrow.

This DOL photo was never shown to the victim because Littlejohn felt that it "didn't look anything like the description we had from [the victim], or anything like Mr. Peterson, or anything like the composite drawing ..." He also emphasized that the DOL information showed the man to be much younger than the alleged perpetrator (26 rather than 40-45) and considerably shorter (5 feet 9 inches rather than 6 feet 2 inches).

At the prosecutor's insistence, Littlejohn agreed to attempt to interview this man. However, he never reported back to her on the results of his attempt. Littlejohn testified that he attempted on seven occasions to contact the man at his home to no avail. Littlejohn also found a tan 1970's vintage pickup with no tailgate and no plates parked within 100 yards of the Redmond man's home on or about July 27, 1984. He did not impound the vehicle because he didn't feel the suspect was guilty and he didn't feel the pickup sufficiently matched the victim's description. Littlejohn also subsequently saw an off-white pickup parked at the suspect's house with a tailgate on it. This vehicle was seen on September 24 and was the color of the pickup described by the Redmond babysitter. Littlejohn also noted a camper parked at the Redmond residence which, Littlejohn notes in his record, "would require the removal of the tailgate for installation".

At an omnibus hearing in early August, prosecutor Roe noticed that Peterson did not have any acne or eyebrow scar and so noted in her file. In combination with the failure of the City to link Peterson to the tan pickup, Roe was concerned about the validity of the charges. On August 9, 1984, Roe agreed to reduced bail of $5,000 and Peterson was released from custody.

Prosecutor Goater finally saw Dale Peterson on September 13, 1984. She observed that he had no acne, no scar in his eyebrow and no hair pattern in the eyebrow resembling a scar. This viewing of Peterson followed a defense interview of the victim which was attended by Goater. At that interview, the victim described her assailant's acne as "having moon craters, and it looked as though someone had taken a lead pencil and poked him in the face and left black marks all over his face." The victim also indicated again that the suspect "had no eyebrow where he was scarred." It appeared to the prosecutor at this point that the case against Peterson was extremely weak.

On September 28, 1984 a lineup was held. The victim picked two persons, Peterson and another, as people she "recognized, but could not positively identify". Based upon her inability to identify the suspect, the failure to link Peterson with a tan pickup, and Peterson's lack of facial blemishes, the State moved to dismiss the case.

Thereafter, Dale Peterson brought suit against Littlejohn, his marital community, and the City of Bellevue. The original complaint alleged false arrest, negligent investigation, malicious prosecution, and violation of civil rights under 42 U.S.C. § 1983. Summary judgment was granted dismissing the false arrest claim prior to trial. A jury trial was conducted on the remaining claims. After the plaintiff rested, the court directed a verdict dismissing the § 1983 claim. The negligent investigation claim was not pursued, nor was the jury instructed on that theory, leaving only the malicious prosecution claim at issue.

The jury found for the plaintiff and entered judgment against the defendants in the sum of $115,000. Defendants' motions for judgment...