State v. Alger, 16653

• Citation: 115 Idaho 42,764 P.2d 119
• Decision Date: 02 November 1988
• Docket Number: No. 16653,16653
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Timothy Vernon ALGER, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 119

764 P.2d 119

115 Idaho 42

STATE of Idaho, Plaintiff-Respondent, v. Timothy Vernon ALGER, Defendant-Appellant.

No. 16653.

Court of Appeals of Idaho.

Nov. 2, 1988.

Petition for Review Denied Jan. 10, 1989.

Amil N. Myshin, Boise, for defendant-appellant.

Jim Jones, Atty. Gen. by Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

On a wintry evening in 1984, an Albertson's supermarket in Boise was robbed at gunpoint. Law enforcement officers throughout Idaho began searching for two suspects, Timothy Alger and an alleged accomplice. Several days later, Alger and his partner were spotted in Twin Falls. After a lengthy pursuit and intense manhunt, both individuals were apprehended. A jury eventually found Alger guilty of armed robbery. The judge imposed a ten-year indeterminate sentence for the robbery and a fifteen-year indeterminate enhancement for use of a firearm during commission of the crime. On appeal, Alger has presented a potpourri of issues falling into three general categories: (1) pretrial suppression of evidence, (2) admission and sufficiency of evidence at trial, and (3) propriety of the sentence imposed. For reasons explained below, we affirm the district court's judgment.

I

Before trial, Alger moved to suppress evidence obtained by police investigators from several different sources: eyewitness identifications, statements made by Alger to the police following his arrest, and items seized during the search of a motor home rented by Alger. The motion was denied. We will discuss each point in turn.

A

Alger first contends that the trial court should have suppressed a "tainted eyewitness identification." This contention appears to be directed primarily at the alleged unreliability of an identification made by one of the eyewitnesses. The issue is loosely styled as a due process claim because Alger argues that the eyewitness's subsequent in-court identification of him was corrupted by unduly suggestive pretrial identification procedures. Where, as here, the issue is whether a constitutional violation appears from a set of facts, we exercise free review. Standards of Appellate Review in State and Federal Courts, IDAHO APPELLATE HANDBOOK § 3-3 (Idaho Law Foundation, Inc. 1985).

Generally speaking, due process requires the suppression of an eyewitness identification obtained as a result of confrontations "so unnecessarily suggestive" that they are "conducive to irreparable mistaken identification." Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380, 34 L.Ed.2d 401 (1972) (quoting Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967)). Suggestiveness, in turn, is determined according to the totality of the circumstances. Id. See also State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983). Although this test has been employed in determining whether an in-court identification has been unduly tainted by a suggestive out-of-court identification, it also may be used--with deletion of the word "irreparable"--as a standard for the admissibility of testimony concerning the out-of-court identification itself. Neil v. Biggers, supra.

In this case, four Albertson's employees were present at the time of the robbery. Alger's primary challenge concerns the identification by one of these four. Of the other three, one testified that he could not identify Alger because he was not close enough to the front of the store to get a proper view. The other two employees positively identified Alger in pretrial physical lineups and photo lineups. They reiterated the identifications at trial. Alger makes no claim that these identifications were constitutionally infirm. Instead, he focuses his attack upon an identification by the fourth employee, a night manager, who had the longest opportunity to study the robber. He was the person who handed over money from a cash register and from the store safe.

Before the preliminary hearing, but some twenty-one months after the robbery, the night manager was shown an eight-person photo lineup. He positively identified Alger as the man who had pointed a revolver at him and demanded money. The same employee then was subpoenaed to testify at the preliminary hearing. When he arrived in court, he noticed the back of the head of the accused, who was seated in the front of the courtroom. For reasons not germane to our discussion, the hearing was continued before the employee could testify. In the interim, the employee was taken to a live lineup where he was unable to identify anyone positively. However, at the resumed preliminary hearing and at the trial, he positively re-identified Alger as the man who had robbed the store. Defense counsel was allowed to challenge this identification by eliciting on cross-examination all the circumstances surrounding the pretrial identification proceedings.

We fail to see how the pretrial confrontations in this case were unduly suggestive. Although a significant period of time elapsed between the robbery and the first photo lineup, the identification--selected from an eight-picture lineup--was unequivocal. Other than the lapse of time, no claim is made that this confrontation somehow was improper. Furthermore, prior to this lineup the witness had made no contrary identifications tending to undercut his reliability. Neither was he subjected to any inherently suspect confrontations that might have impaired his ability to identify Alger based upon his memory of the robbery itself. ¹ Finally, the unexpected courtroom "confrontation" at the original preliminary hearing was not face-to-face, and it does not appear to have focused the witness's attention upon Alger. Indeed, at the physical lineup held after the preliminary hearing was continued, the witness was unable to make a positive identification.

In sum, although this particular eyewitness's identification of Alger at trial may have harbored some uncertainty, it was not contaminated by any unduly suggestive confrontation. ² The identification was properly presented to the jury along with the background facts. The jurors were entitled to accord the evidence whatever weight they deemed appropriate.

B

Alger next asserts that statements made by him to a police officer while he was hospitalized were involuntary and, therefore, were admitted at trial in violation of his Fifth Amendment privilege against self-incrimination. Alger received Miranda warnings and agreed to speak with the police at the beginning of the interrogation. However, he contends that the waiver of his Fifth Amendment right was tainted by the influence of pain medication. With this contention the district court did not agree.

Any waiver of Miranda rights or of the underlying constitutional privilege against self-incrimination must be made voluntarily, knowingly and intelligently. State v. Hall, 111 Idaho 827, 727 P.2d 1255 (Ct.App.1986). The issue in this case is whether Alger possessed the capacity to make voluntary, knowing and intelligent decisions despite the influence of medication. On appeal, we conduct an independent examination of the record to determine whether, under the totality of the circumstances, the waiver was valid. E.g., Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). Intoxication, or the influence of narcotics, is one such circumstance; but it alone does not automatically signify that a waiver is invalid. State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983) (discussing effect of intoxication).

Here, the record contains no specific reference to the amounts or types of medication ingested by Alger at or near the time of the questioning. However, the record does contain evidence that Alger was able to make a valid waiver. The conversation with the investigating officer was recorded. A transcript of the conversation indicates that Alger was coherent. After an officer read his rights, Alger stated that he fully understood them. He signed a written waiver form. He gave detailed and lengthy responses to questions posed by the officer. There is no indication that he was confused or mentally incapacitated. Based on our independent review of the record, we agree with the district court that Alger voluntarily waived his privilege against self-incrimination. The trial judge did not err in admitting the statements made in the hospital.

C

Alger also challenges, albeit rather perfunctorily, the search of a motor home used by him and his accomplice. His brief declares, without any ensuing discussion or argument, that the search was without probable cause. We disagree.

The motor home search was conducted pursuant to a warrant issued by a Twin Falls magistrate. When a search has been made pursuant to a warrant, the burden is on the defendant to demonstrate that the search was invalid. State v. Kelly, 106 Idaho 268, 678 P.2d 60 (Ct.App.), cert. denied, 469 U.S. 918, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984). Here, other than a naked allegation, Alger has offered us no basis to find that the warrant was issued upon less than probable cause. The record strongly suggests otherwise. We conclude that the trial court did not err in admitting the fruits of the motor home search into evidence.

II

Alger next raises three evidentiary issues. Two of these issues concern decisions by the judge to admit evidence during the trial. The third issue is the sufficiency of all the evidence to support the jury's verdict.

A

Alger first contends that the trial court erred by admitting evidence of events that occurred subsequent to the Boise robbery. Specifically, he objects to the admission of testimony concerning Alger's capture near Twin Falls and a subsequent escape from the Jerome County jail. Alger contends that this evidence was both irrelevant and unduly prejudicial. We first discuss the escape.

So far as we can discern, the sole reference in the record to the escape is a fleeting...