Reaves v. State
| Decision Date | 06 August 1982 |
| Docket Number | No. F-81-335,F-81-335 |
| Citation | 649 P.2d 780 |
| Parties | Steven Richard REAVES, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, STEVEN RICHARD REAVES, was convicted of Burglary in the Second Degree in Tulsa County District Court, Case No. CRF-80-205. The appellant waives his right to a jury trial. The trial court sentenced him to serve ten (10) years' imprisonment, and appeals. AFFIRMED.
Ron Wallace, Asst. Public Defender, Tulsa, for appellant.
Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Appellate Crim. Div., Oklahoma City, for appellee.
The appellant was convicted of Burglary in the Second Degree in Tulsa County District Court. After waiving a trial by jury, the trial judge found Reaves guilty and sentenced him to ten (10) years' imprisonment.
This Court will address four issues raised on appeal: (1) the pre-trial identification procedures; (2) the scope of cross-examination during an in-camera hearing; (3) the trial court's alleged refusal to provide the appellant with materials used by a State's witness to refresh his memory; and, (4) the State's alleged failure to provide the appellant with exculpatory evidence.
The appellant contends that the pre-trial identification procedures were unduly suggestive so as to render the in-court identification unreliable and violative of due process. We addressed the identification procedures utilized in this case in the companion case, Reaves v. State, 649 P.2d 777 (1981). That case dealt with the identification procedures in regard to Rodger Reaves, the appellant's brother and alleged accomplice in the burglary.
On December 22, 1979, Alvin Rhodes returned home and found two men burglarizing his apartment. Rhodes attempted to thwart the burglary. However, the two assailants severely injured Rhodes during the scuffle which ensued and at gunpoint robbed him of his wallet. He later called the police and was taken to the hospital for treatment.
While Rhodes was recuperating in the hospital, Detective Campbell asked him if he could identify his assailant from among nine photographs. Rhodes examined all the photographs several times before tentatively identifying the appellant, Steven Reaves and his brother, Rodger Reaves, as his assailants. He stated, that he thought they were the two men, however, he was not sure. Detective Campbell informed Rhodes that the two men he picked out were brothers. Campbell also stated that "one of the dudes was bad." Rhodes then asked Campbell whether they were capable of murdering someone. Campbell responded that they were.
After Rhodes was released from the hospital, Detective Campbell went to his apartment and showed him the two pictures of the persons he had tentatively identified in the hospital. At this viewing, Rhodes positively identified Rodger Reaves and Steven Reaves. Rhodes stated that he was sure they were the two assailants. Rhodes was shown the original stack of nine photographs a third time when he was interviewed by the district attorney.
Identification through the use of photographs is a valid police procedure. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court acknowledge the use of photographs and asserted
... that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
The appellant argues that the pre-trial identification procedures were impermissively suggestive for two reasons. First, he argues Officer Campbell's comments made after the hospital identification were unduly suggestive. Second, that the repeated showing of the photographs to the victim was conducive to irreparable mistaken identification. See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
With regard to the appellant, Steven Reaves, we find that the photographic display was not violative of due process. The individuals pictured in the photo display possessed the same general characteristics of the appellant. The trial judge properly conducted an in-camera hearing as to the propriety of the identification procedures. The trial judge concluded that the identification procedures were not so impermissively suggestive as to give rise to a very substantial likelihood of misidentification. On review, we cannot hold that his ruling was erroneous with regard to Steven Reaves. Under the totality of the circumstances, we find that the identification procedure did not create a substantial risk of misidentification.
The police comment at the hospital was made after the victim had already identified his assailants. The comment was not intended to pressure the victim into identifying anyone. Further we find that the procedure allowing the victim to view the photographs on three occasions did not create a substantial likelihood of misidentification. Although we do not condone the third viewing of the photographs by the victim, we find that it was not so unduly suggestive as to violate due process.
We also hold that the victim's in-court identification possessed independent aspects of reliability. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Even if the pretrial identification procedures are impermissively suggestive, it does not require exclusion of an in-court identification provided the in-court identification is reliable. Manson v. Brathwaite, 432 U.S. 98 at 114, 97 S.Ct. 2243 at 2253, 53 L.Ed.2d 140. In determining whether the in-court identification is reliable, this Court will consider
... the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, supra.
In this case, the victim had ample opportunity to view Steven Reaves, even though it was fairly dark at his apartment. Rhodes struggled with his assailant at very close range. Outside the apartment, Rhodes wrestled Richard Reaves for possession of a pry bar. Inside the apartment Rhodes attempted to disarm Richard Reaves of the pistol he had aimed at his head. Further, he had an excellent opportunity to view Steven Reaves in his lighted bathroom when he robbed him of his wallet.
Rhodes apparently directed most of his attention toward the appellant. The...
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