State v. Ash

• Decision Date: 30 August 1976
• Docket Number: No. 58735,58735
• Citation: 244 N.W.2d 812
• Parties: STATE of Iowa, Appellee, v. Bruce Wayne ASH, Appellant.
• Court: Iowa Supreme Court

Page 812

244 N.W.2d 812

STATE of Iowa, Appellee, v. Bruce Wayne ASH, Appellant.

No. 58735.

Supreme Court of Iowa.

Aug. 30, 1976.

Rehearing Denied Oct. 15, 1976.

Swift, Brown & Winick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David L. Brown, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, REES, UHLENHOPP and REYNOLDSON, JJ.

LeGRAND, Justice.

A Polk County jury convicted defendant of the crime of breaking and entering in violation of § 708.8, The Code. He was sentenced to serve a term of not more than 10 years in the Men's Reformatory, and he appeals therefrom. We affirm.

Defendant claims the trial court erred in failing to exclude the identification testimony of Officer Foster; in failing to sustain his motion for directed verdict; and in admitting two guns as exhibits.

On the evening of March 25, 1971, Officer Foster was directed by radio dispatch to a Des Moines residence where a suspected prowling was in progress. When he arrived, a young boy informed him three men were breaking into the Henry R. Garlock residence. As the officer worked his way to the side of the house, he came upon three youths apparently about to leave the premises. He ordered them to halt. They stopped, but only for a few seconds. They then ran off in different directions. One of them was captured immediately; one's fate is not disclosed by the record. The third one is defendant, who was taken into custody later.

I. The principal dispute concerns the circumstances under which Officer Foster identified defendant at trial. To put the matter in perspective it is necessary to give a brief chronology of events occurring immediately after the crime.

Officer Foster first identified defendant from a mug shot shown to him at the police station. This is the only picture he was shown. No attempt was made to use this identification at trial, and we therefore consider this out-of-court photographic identification only as it bears on Officer Foster's later in-court testimony. Our task is to decide if the police procedure in showing Officer Foster only a single picture with defendant's name imprinted thereon after the officer knew defendant was a prime suspect was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 976, 971, 19 L.Ed.2d 1247, 1253 (1968).

Defendant relies heavily on three cases decided by the United States Supreme Court in 1967. They are United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. These three cases are generally taken as having established for the first time 'standards and procedures for conducting pretrial confrontations between an eyewitness to a crime and the accused.' See Simmons v. United States, supra, 390 U.S. at 382, 88 S.Ct. at 970, 19 L.Ed.2d at 1252; Marshall v. Rose, 499 F.2d 1163, 1165 (6th Cir. 1974).

Since the Wade-Gilbert-Stovall trilogy, we have had a number of cases considering the problems of in-court and out-of-court identification. See State v. Salazar, 213 N.W.2d 490, 494 (Iowa 1973); State v. Canada, 212 N.W.2d 430, 433 (Iowa 1973); State v. Houston, 209 N.W.2d 42, 44 (Iowa 1973); Williamson v. State, 201 N.W.2d 490, 491 (Iowa 1972); State v. Masters, 196 N.W.2d 548, 551 (Iowa 1972); State v. Jones, 193 N.W.2d 509, 512 (Iowa 1972); Evans v. Rosenberger, 181 N.W.2d 152, 157 (Iowa 1973); State v. Walker, 181 N.W.2d 143, 145 (Iowa 1970); State v. Essary, 176 N.W.2d 854, 855--856 (Iowa 1970); State v. Wisniewski, 171 N.W.2d 882, 884--885 (Iowa 1969).

The following general principles emerge from these cases:

1. An out-of-court identification which is unnecessarily or impermissibly suggestive and which presents his likelihood of irreparable misidentification is a denial of due process and such evidence may not be used at a later trial;

2. Despite the fact that a pretrial identification may not be used because of the illegal procedure by which it was obtained, the same witness may nevertheless identify a defendant at trial if such identification had an independent origin and is not 'tainted' by the illegal procedure;

3. Each case must be decided on its own facts and by a consideration of the totality of circumstances disclosed by the evidence; and

4. The State has the burden to show by clear and convincing evidence that the identification made in court does have an independent origin and is not based upon--tainted by--the illegal identification procedure prior to trial.

With these principles in mind, we consider the evidence in this case.

Officer Foster testified on four different occasions. First, he testified at a preliminary hearing. Then he testified at defendant's first trial, which resulted in a hung jury. He then testified at a hearing on a motion to suppress. Finally, he testified again at defendant's second trial, the one which resulted in a conviction and the one which is now on appeal.

With some minor variations, Officer Foster's testimony remained steadfast throughout the proceedings. He testified that when he responded to the break-in call it was daylight. He was approximately 35 or 40 feet from defendant. He had defendant under observation for a period which varied from 'a couple of seconds' to a maximum of five seconds. He had an opportunity to notice defendant's facial features. He noted 'outstanding' facial characteristics of the nose and cheeks. He was unable to describe any of defendant's clothing. On each occasion, he testified unequivocally that he could 'definitely' identify defendant as one of the persons at the scene of the burglary.

Defendant challenged Foster's testimony throughout the proceedings on a number of grounds. He disputes the quality of the light, the distance between the officer and the three youths, the length of time involved in the confrontation, and the opportunity the officer had to observe facial features in view of the relative positions of the parties.

Defendant claims there was no independent basis for the officer's in-court identification and insists that it must have been the result of his examination of defendant's mug shot. As the State concedes this procedure was improper, defendant argues the in-court identification must fail.

We do not agree. Throughout his many examinations under oath, Foster's basis story never wavered. On each occasion, he testified unequivocally he could identify defendant. He testified, too, that his identification was independent of his examination of the mug shot at the police station. The fact that he testified the same on several occasions is of some significance. State v. Salazar, supra, 213 N.W.2d at 494. So, too, is the fact he survived vigorous cross-examination as to his version of what happened. Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

This statement from Simmons v. United States, supra, 390 U.S. at 383, 88 S.Ct. at 971, 19 L.Ed.2d at 1253 is applicable here:

'It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. * * * This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. * * *

'The danger that use of technique (of photographic identification) may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold 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.'

Factually, this case is quite similar to State v. Canada, supra, 212 N.W.2d at 433. As far as Foster's limited opportunity to observe is concerned, it is not unlike Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, 394 (1970). In both it was held a challenged in-court identification had an independent origin, although Coleman was reversed on other grounds.

Upon review of all the circumstances, we hold trial court was right in finding there was an independent origin for Officer Foster's in-court identification of defendant. The testimony was properly admitted.

II. What we have already said virtually disposes also of defendant's...