Reinholt v. State
| Decision Date | 01 November 1979 |
| Docket Number | No. 5131,5131 |
| Citation | 601 P.2d 1311 |
| Parties | Steve REINHOLT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Frank R. Chapman, Public Defender, and Richard Honaker, Appellate Counsel, Public Defender Program, State of Wyoming, Cheyenne, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Gay V. Bartels, Asst. Atty. Gen. (argued), Cheyenne, for appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
This is an appeal from a judgment entered on a jury verdict which found appellant-defendant guilty of burglary and of auto theft in violation of §§ 6-7-201 and 31-11-102, W.S.1977. Appellant contends: (1) that the evidence was insufficient as a matter of law to sustain the convictions inasmuch as the identification of appellant as the perpetrator of the crimes was defective; and (2) that the trial court erred in admitting testimony from one witness to the effect that appellant was made a suspect in the crimes because he had been involved "in similar situations before" with another person who was arrested for these crimes. Appellee-State contends that the evidence was sufficient to sustain the convictions and that appellant's examination of this one witness "opened the door" for the questioned testimony.
We affirm.
The standard under which we review the sufficiency of the evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and give to the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Harvey v. State, Wyo., 596 P.2d 1386 (1979); Tucker v. State, Wyo., 594 P.2d 470 (1979). There was evidence to the following effect: Steve Marosok, the 22-year-old son of the manager of Wy-Mont Beverage Company saw a company van on the streets of Sheridan and followed it until it stopped. He talked with one of the two occupants and then reported the van as stolen to the police. Shortly thereafter the police received a report of a burglary of the Wy-Mont main office. A broken bottle of "Black Velvet" whiskey was found in the offices and some of the vending machines were broken. An unsuccessful effort was made to break into the safe. During the investigation of the burglary, the van returned to the area and was found parked nearby. The police found Arthur Beane in the van, either sleeping or unconscious; and they found some of the material taken in the burglary in the van. About an hour before Marosok first saw the van, Paul Wyatt, an employee of a liquor store sold a bottle of "Black Velvet" whiskey to two men, both of whom he described as intoxicated. A tag found on the broken bottle was from this liquor store. Marosok identified appellant as the van occupant to whom he talked, and Wyatt identified appellant as one of the two customers to whom he sold the "Black Velvet" whiskey.
It was on the basis of these identifications that appellant was found to have been one of the participants in the crime. Appellant contends that the identifications were influenced and controlled by pretrial identifications from suggestive photographs, giving rise to a very substantial likelihood of misidentification.
He contends that the witnesses were shown, separately, a series of five photographs of which "only one was a man with long blonde hair and a beard." The subjects of three of the five photographs had beards, and the subjects of all five of them had long hair. Of the three with beards, two were color photographs which portrayed black hair and beards. The other one, which was of appellant, was a black and white photograph which portrayed dark hair and beard. The photograph of appellant was not distinctive in relation to the others and does not appear to have an obvious characteristic of being "suggestive."
But, assuming the identification as having the potential of suggestiveness, we note that we recently addressed the propriety of such pre-court identification in Campbell v. State, Wyo., 589 P.2d 358 (1979). We there examined the current status of the law relative thereto and made reference to the pertinent authorities. It would be redundant to again review the matter here except to note the conclusions therein reached relative to the issue. We there concluded that the consideration is whether or not there is a very substantial likelihood of irreparable misidentification upon a Totality of the circumstances ; that the pretrial identification evidence is admissible if it possesses features of reliability despite a suggestive aspect; and that in making the determination of reliability, the following factors should be weighed against the corrupting effect of the suggestive identification itself:
1. Opportunity of the witness to view the criminal at the time of the crime;
2. The witness' degree of attention;
3. The accuracy of his prior description of the criminal;
4. The level of certainty demonstrated at the confrontation; and
5. The time between the crime and the confrontation.
With reference to these factors the record reflects:
1. View Opportunity
Witness Marosok opened the door of the van and talked to the driver-appellant for one or two minutes. He said he could see inside the van "fairly good."
Witness Wyatt sold a bottle of whiskey to the appellant and Beane and observed them before the purchase while they were in the store. After they left, he saw one of them sit down behind the building, and he went up to them and asked them to leave. He then closed the store for the night and saw them walking as he went home.
2. Witness' Attention
Witness Marosok first followed the van because he thought his sister may have been driving it. When he approached it and talked to the driver, he realized that neither of the occupants were usual employees of Wy-Mont, and he notified the police.
Witness Wyatt watched appellant and Beane "fairly close and tried to keep an eye on" them when they were in the store because they were intoxicated, and he watched them after they left the store for the same reason to be sure they didn't walk on the driveway where "cars come up there pretty fast."
3. Accuracy of Prior Description
Witness Marosok described the appellant to officer Nelson as a man with long blonde hair and a beard. Appellant had both.
Witness Wyatt described the appellant to officer Nelson as a man with a beard, blondish-brown hair and rather tall. Appellant had a beard and blondish-brown hair and was 6 feet 4 inches tall.
4. Level of Certainty
Both witnesses made a positive identification of appellant in court. Both previously identified appellant's photograph as that of one of the perpetrators of the crime from among five photographs shown to them. Witness Marosok was sure of his identification. Witness Wyatt was "pretty sure" of his. At the trial, both witnesses were shown appellant's exhibits A, B, C, D and E and asked if they were the photographs from which they made their original identifications. Actually and apparently through inadvertence, exhibits A, B, C, D and E were not the photographs from which the original identifications were made. Exhibits F, G, H, I and J were later introduced and were the photographs from which the original identifications were made. Each set of photographs were of the same individuals, but with some differences. Exhibits A and F were of the same individual but A was taken with the camera closer to the subject. Likewise with Exhibits D and H, with H having been taken with the camera closer to the subject. Exhibits B and I were of the same individual, but in a slightly different pose. Exhibits E and G were of the same individual, but E was a profile photograph and G was full face. Exhibits C and J were of appellant, but he was clean shaven in C and he had a beard and slightly longer hair in J. At the trial, witness Wyatt's certainty was emphasized when he expressed certainty that the photograph from which he previously identified appellant was not among exhibits A through E. Likewise, witness Marosok could not identify exhibit C as the photograph from which he made his prior photographic identification of appellant.
5. Time Lapse
The in-court identification of appellant was made six months after the crime and after the time at which both witnesses observed the perpetrator of it. The original photographic identification of appellant was made the day following the crime by Wyatt and six days later by Marosok.
Accordingly, upon the totality of the circumstances in consideration of these five factors, the evidence was such that the jury could find sufficient features of reliability of the identification to overcome any aspect of misidentification through suggestion.
The trial court adequately instructed the jury relative to the care to be taken in assessing the reliability of the identification testimony and that such must be established beyond a reasonable doubt. 1 The instructions noted the necessity to consider each of the five factors except the one having to do with accuracy of prior description, although the court used the words "capacity," "reliable," and "own recollection" in lieu of "degree of attention" and "level of certainty."
There was sufficient evidence upon which the jury could find the identification to be valid and proper.
On redirect examination of officer Tom Nelson, Jr., of the Sheridan Police Department, appellee asked:
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