State v. Cheatam
| Decision Date | 11 December 2003 |
| Docket Number | No. 73079-2.,73079-2. |
| Citation | 81 P.3d 830,150 Wash.2d 626 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Jerry Dawayne CHEATAM, Petitioner. |
Pattie Mhoon, Tacoma, for Petitioner/Appellant.
John Martin Neeb, Tacoma, for Appellee/Respondent.
Amanda Elizabeth Lee, Schroeter Goldmark Bender, Seattle, on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
Jerry Cheatam, who was convicted of first degree rape, contends that police violated the state and federal constitutions when, acting without a warrant, an officer retrieved his shoes as evidence in this case from a jail property bag four days after Cheatam's arrest on an unrelated charge. He also claims that the trial court erred in excluding expert testimony on the reliability of eyewitness identification and that the prosecutor engaged in misconduct by commenting on the defense's failure to produce a witness to corroborate his alibi. We affirm Cheatam's conviction.
On January 5, 1996, 16-year-old M.M. was walking to her bus stop at 6:45 a.m. when a man grabbed her from behind, told her he had a knife, and led her over a dirt mound to the back of a house on the corner. She testified it was light enough to see where she was going, and to see houses and other landmarks. The man, a "black male," 6 Report of Proceedings (RP) at 360, was wearing a dark blue hooded sweatshirt. He told M.M. to lie down and take off her pants. In an effort to discourage the man, she told him she was having her period, but the man told her to remove her tampon, which she did. The man then let go of her neck, and she saw the knife as he switched it from one hand to the other. He grabbed her neck again and put her legs over his shoulders. He then let go of her again briefly, and she heard paper ripping. At this point M.M. looked at the man's face for about five seconds because she 6 RP at 355. She testified she could see the features of his face and remembered them. When the man saw M.M. looking at him, he grabbed her again and turned her away from him. He raped her, and told her she was a "good girl." 6 RP at 359.
After he raped her, the man permitted M.M. to pull her pants up, asked her what time she caught the bus, and walked with his arm around her to the bus stop. He told her not to cry, and not to tell anyone or he would hurt her. He ran off, and when he was far enough away, M.M. ran home.
Her father and stepmother found her in her room curled up in a ball, sobbing hysterically. After she was calm enough, she told them what happened. They called the police, and later her stepmother took her to a hospital. An examination disclosed no trace evidence. Later that day, M.M. met with a sheriff's sketch artist and gave her a detailed description. The resulting sketch was admitted at trial.
A forensic investigator processed the rape scene, and recovered a tampon and photographed a footprint that was found in loose dirt on the hillside by the path the rapist had walked with M.M.
In March 1996, M.M. was shown a photomontage of six men, none of whom was Cheatam. She did not identify any as the rapist. On June 6, 1996, Detective Page showed her another photomontage, and M.M. looked at each photo, narrowed them to two, and deliberately picked No. 2 as the man who raped her. The police sketch prepared the day of the rape bears a striking resemblance to this photograph, which is a photograph of the defendant. Also on June 6, a search warrant for Cheatam's apartment was executed. That warrant originally related to another rape investigation, but was telephonically expanded on June 6 to include evidence of other rapes, including the rape of M.M. At the apartment, police seized a "blue, hooded jacket of some sort," 5 RP at 195, several condoms, and some shoes. The shoes' tread did not match the photograph taken from the scene of the rape of M.M.
On the day of the search, Cheatam was arrested at his apartment for an unrelated rape. He was booked into jail, and his clothing, shoes, and effects were inventoried and stored in the jail's property room. Four days later, Detective Page obtained the shoes from the property room, examined the tread, compared it to the photograph, and confirmed a visual match. He requested further testing. A forensic investigator also confirmed a visual match but could not conclusively testify to a match. Before trial on the rape of M.M., Cheatam moved to suppress evidence of the shoes on the ground they were unconstitutionally obtained without a warrant. The trial court denied the motion.
Cheatam's first trial resulted in an appeal, reversal and remand for a new trial. Prior to his second trial the court granted the State's motion to exclude Dr. Jeffrey Loftus's expert testimony on the reliability of eye witness testimony. Cheatam's second trial resulted in a mistrial prior to verdict. He was convicted following the third trial. At the third trial, the defense presented an alibi defense, i.e., that Cheatam was home at the time of the rape.
Following his conviction, Cheatam appealed. The Court of Appeals affirmed in a partially published opinion. State v. Cheatam, 112 Wash.App. 778, 51 P.3d 138 (2002), review granted, 149 Wash.2d 1008, 67 P.3d 1097 (2003). This court granted Cheatam's petition for discretionary review. The Washington Association of Criminal Defense Lawyers has filed an amicus curiae brief in support of Cheatam's claim that the trial court erred in excluding the expert witness testimony on the reliability of eyewitness identification.
Cheatam maintains that the trial court erred in denying his motion to suppress evidence of the shoes he was wearing when he was booked into jail on an unrelated rape charge. He does not assign error to any of the court's findings of fact entered following the suppression hearing. They are therefore verities on appellate review. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994).
The trial court found that when the police searched Cheatam's apartment on June 6, 1996, he was present and not wearing shoes. After he was arrested on the other rape charge and transported to the Pierce County Detention Center, the officers obtained the expanded telephonic warrant. At the jail, Cheatam's clothing and shoes were placed into an individual property bag in the inmate property room at the jail. The clothing and shoes were itemized and listed on a booking property form that Cheatam was required to sign. On June 10, 1996, acting without a warrant, Detective Page obtained the shoes from the inmate property room and compared them to the shoe print impression photograph taken at the scene of the rape of M.M. Page delivered the shoes to a sheriff's forensic deputy, who advised Page that the shoe pattern matched that in the photograph. The shoes were then placed in the Pierce County Sheriff's Department property room as evidence.
The court also entered findings that according to the testimony of Pierce County Sheriff's Officer Connor, it was the policy of the jail that an inmate's property taken at booking could not be released to anyone except the inmate, except upon a written request submitted by the inmate and approved by the support squad sergeant or a court order. Page did not obtain a court order or Cheatam's consent to take the shoes from the inmate property room.
The trial court held that it would have been lawful for the officers to take the shoes at Cheatam's residence on June 6, 1996, pursuant to the search warrant, that the police had lawful custody of his clothing once he was taken into custody, "and so any subsequent search and seizure of the shoes by law enforcement ... is not an unlawful search and seizure." Clerk's Papers (CP) at 14 (Conclusion of Law 13).
The Court of Appeals affirmed on alternate grounds. That court concluded that once the shoes were placed in the inmate property room they were outside the scope of the search warrant executed at Cheatam's residence on June 6, 1996. This conclusion is correct, since the jail property room was clearly not the place designated in the warrant as the place to be searched. The Court of Appeals concluded, however, that Cheatam had failed to establish either a reasonable expectation of privacy in his shoes in the property room under the Fourth Amendment to the United States Constitution or a privacy interest under article I, section 7 of the state constitution, and therefore failed to establish a constitutional violation. Cheatam, 112 Wash.App. at 784-87, 51 P.3d 138. The Court of Appeals also concluded that the jail's policy regarding inmate property is inconsequential, noting the policy's purpose was not developed on the record and not available for review. Id. at 786, 51 P.3d 138.
Cheatam contends that Detective Page's retrieval of his shoes violates both the state and federal constitutional prohibitions against warrantless searches and seizures.
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