State v. Bingham, 18774

Decision Date13 June 1984
Docket NumberNo. 18774,18774
Citation684 P.2d 43
PartiesSTATE of Utah, Plaintiff and Respondent, v. Scott B. BINGHAM, Defendant and Appellant.
CourtUtah Supreme Court

Stephen R. McCaughey, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Ted Cannon, Co. Atty., David S. Walsh, Asst. Co. Atty., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Scott Bingham was convicted of burglary and theft by a jury in the Third Judicial District in Salt Lake. The appellant challenges the pretrial photographic identification, the failure to give certain jury instructions, the sufficiency of the evidence, the conduct of the prosecutor and the legitimacy of his conviction for theft of property worth more than $1,000. We affirm.

At midday on February 25, 1982, Mr. Ken Ethington went out to his front mailbox and observed a white male hurrying down the driveway of the home across the street carrying a camera. Mr. Ethington first noticed the man when he was about 60 feet away. As a member of the Neighborhood Watch program, Mr. Ethington had received instructions to be wary of strangers in the neighborhood. His suspicions were immediately aroused, and he paid particular attention to the man in the event he might be called as a witness. Mr. Ethington watched the man as he continued down the driveway, crossed the street and entered a white car parked on Mr. Ethington's side of the street, about 25 feet from where Mr. Ethington was standing. As the man got in the car, Mr. Ethington called out the license number to his wife, then shifted his attention back to the man. The man had some difficulty starting the car, but after several attempts finally succeeded and made a U-turn almost directly in front of Mr. Ethington. The man paid particular attention to Mr. Ethington, turning to stare at him several times as he drove away.

During this time, Mrs. Ethington was standing in the doorway of her home. She also observed the man while he was in the neighbor's driveway. She noted that he seemed nervous, that he was carrying a camera, that he had difficulty starting the car and that he made a U-turn in front of the Ethingtons' home. Immediately after, Mr. Ethington called out the license number, and Mrs. Ethington went in and wrote it on a pad by the phone. Because she and her husband were not well-acquainted with the Rollins, owners of the home across the street, she called the Rollins' next-door neighbor to tell them she had the getaway car's license number in the event there had been a burglary.

Approximately one hour later, Mr. Rollins returned home to find that the back door of his home had been forced open and the bedrooms ransacked. Several items of personal property, including his camera, were missing.

The police identified the getaway car as being registered to Leonard Varner. A few days after the burglary, the Ethingtons were shown a photo spread containing Varner's photograph. They could not identify anyone in the photo spread. The police then learned that Varner had been in Salt Lake County Jail on the date of the burglary. They also learned that Scott Bingham had been seen driving Varner's car about a week prior to the burglary. On March 4, seven days after the burglary and a few days after the Ethingtons had been shown the first photo spread, the police returned to show them a completely new spread of six photos, this time including a photo of Bingham. Bingham was identified as the suspected burglar by both of the Ethingtons, who examined the photographs separately. He was then arrested. None of the stolen goods were ever found. Bingham was convicted based on the Ethingtons' eyewitness identification of him.

The appellant first argues that the trial court erred in denying his motion to suppress the pretrial photographic identification. The appellant argues that the Ethingtons were pressured to select his photo during the second photo spread because they had already failed to pick a photo from the first spread and because Mr. Ethington saw that Mrs. Ethington had already made an identification from among the six photos before he was given an opportunity to view them himself. Because of this so-called "pressure" the appellant claims the pretrial identification was suggestive and unreliable. The appellant does not specify the source of his right to a nonsuggestive and reliable identification, but he cites cases decided under the due process clause of the fourteenth amendment to the United States Constitution. We therefore assume this to be the source of the constitutional guarantee he claims. Because he does not argue that the result might differ under the due process clause of the Utah Constitution, we do not analyze the issue under that provision.

This Court has stated that "[w]here an identification procedure, even though suggestive, does not give rise to a substantial likelihood of misidentification, no due process violation has occurred." State v. McCumber, Utah, 622 P.2d 353, 357 (1980) (footnote omitted). The test for reliability was stated in McCumber as follows:

In determining the reliability of the identification under the totality of the circumstances, the court must also consider the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of any prior description of the criminal, the level of certainty demonstrated during the identification procedure, and the time between the crime and the identification.

Id. (footnote omitted).

In reviewing the evidence, we find the Ethingtons had a good opportunity to view Bingham. They saw Bingham around noon on a sunny day. Their view of Bingham was clear and unobstructed. Mr. Ethington was able to view Bingham as he left the driveway, entered the car, made several attempts to start it, and finally pulled out and made a U-turn almost directly in front of him. The Ethingtons also paid special attention to Bingham. They thought the situation suspicious and, as members of Neighborhood Watch, paid particular attention in the event that they might be called as witnesses. The record does not indicate that any descriptions of Bingham the Ethingtons gave the police were inaccurate or significantly inconsistent. Both of the Ethingtons were positive and unequivocal in their identification of Bingham, stating they had no doubt he was the same man they had seen at their neighbor's home. Finally, the identification of Bingham from the photographs was made seven days after the burglary, sufficiently close to the event to avoid any clouding of memories. Considering all of these factors, we believe the Ethingtons' identification was reliable.

The appellant's next point on appeal is that the trial court erred in refusing his two requested jury instructions regarding eyewitness identification. The appellant contends that the jury instructions actually given at trial were inadequate to caution and direct the jury in evaluating whether the Ethingtons' identification of him was reliable. Jury instructions must be considered as a whole. "When taken as a whole if they fairly tender the case to the jury, the fact that one or more of the instructions, standing alone, are not as full or accurate as they might have been is not...

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