State v. Coburne

• Decision Date: 28 December 1973
• Docket Number: 742--II,Nos. 740--I,s. 740--I
• Citation: 518 P.2d 747,10 Wn.App. 298
• Parties: The STATE of Washington, Respondent, v. Troy L. COBURNE and Charles D. Coburne, Appellants.
• Court: Washington Court of Appeals

Page 298

10 Wn.App. 298

518 P.2d 747

The STATE of Washington, Respondent, v. Troy L. COBURNE and Charles D. Coburne, Appellants.

Nos. 740--II, 742--II.

Court of Appeals of Washington, Division 2.

Dec. 28, 1973.

[518 P.2d 749] James Munro, Bremerton, Appointed, for appellant Troy L. coburne.

Leonard W. Kruse, Port Orchard, Appointed, for appellant Charles D. Coburne.

L. R. Rick Smith, Silverdale, Appointed, Co-Counsel.

John C. Merkel, Pros. Atty., and Stephen E. Alexander, Deputy Pros. Atty., Port Orchard, for respondent.

PETRIE, Judge.

Shortly after 7:30 p.m. on September 23, 1971, two men, one armed with and brandishing a handgun, appeared at the cashier's window of the Merit-Mart Store in Bremerton, Washington. One of the men announced to the two cashiers on duty, 'This is a hold-up' and the other thrust a grocery sack across the counter. One of the men declared, 'Put the big stuff in it or you're dead.' The cashiers placed money in excess of $7,000 in the sack and passed it to the two men, who then departed. Outside the store, in the parking lot, as the two men were departing, one of them shot at and mortally wounded a security guard who was attempting to halt their flight.

Within six hours, the two defendants, Charles and Troy Coburne, were arrested in Seattle, Washington, and currency in excess of $7,000 and several items of incriminating evidence were seized by the arresting officers. By separate multiple-count informations, the two defendants were each charged with one count of first degree murder, two counts of robbery and two counts of first degree assault. The causes were consolidated for trial and a jury found each defendant guilty on all five counts. Their appeals to this court raise several alleged errors of the trial court: (1) failure to suppress the in-court identification testimony of the several eyewitnesses; (2) failure to suppress the evidence seized at the time of arrest; (3) failure to grant separate trials for each defendant; (4) failure to grant a motion for mistrial as a result of several alleged errors which occurred during trial; and (5) failure to grant a motion for new trial because of the cumulative effect of all the errors. For purposes of clarity, we consider each major issue, together with the necessary factual background, under separate headings.

IDENTIFICATION PROCEDURES

At trial, four witnesses identified one or the other of the Coburne brothers as a participant in the events of September 23, 1971, in and around the Merit-Mart. Several hours after the robbery, three of the witnesses participated in a photo-identification procedure; all four participated in a corporeal lineup a week later. The defendants contend that the pretrial identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Further, the defendants contend that the irregularities encountered in the several phases of pretrial identification effectively denied them a meaningful opportunity to cross-examine the witnesses. Accordingly, the defendants seek to have the court impose a major sanction--exclusion of the in-court identification.

Resolution of the issues requires that we review separately the two phases of pretrial identification: (1) the photo-identification procedures conducted on the night the crimes were committed; and (2) the corporeal lineup proceedings which took place a week later, together with the factual situations which preceded each of these events.

At the pretrial hearing conducted to resolve the issues raised by the defendants' motion to suppress the in-court identification, one of the cashiers at the Merit-Mart, Margaret Brueckner, testified that she participated in an attempt to construct a composite picture of the men who robbed and assaulted her; that she later was shown a series of six photographs, none of which she could recognize as one of the men involved in these crimes; that after attempting to put the composite together, 'I was so confused I couldn't have recognized anyone.'

The other cashier, Colleen Mundt, apparently through inadvertence, was first shown one snapshot, which she recognized as the man with the gun. Thereafter, she was shown a series of six mug shots in which she again recognized the man with the gun. Asked to explain what the officer said to her when he showed her the single snapshot, she replied, 'He said 'Does this look like anybody you know' and I said 'Yes, it was the man that robbed me." She described the man with the gun as about 5 feet 9 or 10 inches, about 180 to 190 pounds, round face, unshaven, dark hair, dark eyes. She described the other man as taller about 5 feet, 11 inches, thin, dark hair, about 160 pounds, and having long sideburns.

At the pretrial hearing Mrs. Mundt pointed to Charles Coburne as the man with the gun. She also remembered him as the person who had come to her cashier's window two nights prior to the robbery 'to cash a money order made out in his wife's name.' At that time he stood outside the window for about 20 or 30 minutes, at least part of the time talking to her, until his wife come in to sign the money order. The payee on the money order was Gladys Coburne, the name of Charles' wife.

Another identifying witness, Judy Heyn Burau, was a customer at the drug department of the Merit-Mart on the evening of September 23, 1971. As she was preparing to leave the store she noticed a person, whom she identified at the pretrial hearing as Charles Coburne. She testified that he was 'sort of grinning and he was almost running' and when she reached the drug department check-out stand, he 'brushed right past me.' She turned to walk out the front door and then saw the security guard running toward and past her. She went outside, 'heard a funny sort of thud . . . and then people started running in yelling that the security guard had been shot.'

When Mrs. Burau went to the police station, she also attempted to make up a composite picture. She looked through a 'book' of 15 to 20 pictures but could not recognize anyone. She apparently was not shown a series of six mug shots. After she could not recognize anyone out of the 'book', she was shown two snapshots. She testified that the officer who gave the snapshots to her said, 'How about these? Do these look familiar? She described her response to the snapshots as:

Well, they showed me the one that didn't ring a bell first. And it had a vague resemblance, but it wasn't the one. And then they handed me the other one, with no word at all, just handed me the other one. And I said definitely that was it.

The six mug shots, which were shown to Mrs. Brueckner and Mrs. Mundt, were numbered from 1 to 6. Two of the shots were of Charles and Troy Coburne, but the other four shots were not available at the pretrial hearing. The snapshot, which Mrs. Mundt and Mrs. Burau identified, was removed from the glove compartment of an unoccupied car on September 23, 1971, after the robery. ¹ The police attempted to keep the six mug shots intact, but neither the pictures nor their identifying numbers were available at the pretrial hearing. The police sergeant who assembled the series described how he selected the six mug shots: 'I picked the two suspects and I just picked up four others that would be similar in age and in that area, so they wouldn't be too farfetched.'

Prior to evaluating the totality of circumstances in the case at bench, we should note that this is not a so-called 'pure' identification case. Other evidence, totally aside from the eyewitness testimony, supports the jury's verdict. We note also that the defendants were not deprived of any constitutional right, federal or state, by reason of the fact that no counsel represented them at the photo-identification confrontation. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); State v. Cerny, 78 Wash.2d 845, 480 P.2d 199 (1971). Nevertheless, this jurisdiction does follow the standard suggested by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) 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.

State v. Cerny, Supra, 78 Wash.2d at 853, 480 P.2d at 204.

We are constrained to note also that the photo-identification procedures employed by the police in this case, and the subsequent failure to preserve the identity of the six mug shots, were certainly not models of police activity designed to demonstrate to a court that the procedures were not impermissibly suggestive. We have previously expressed dissatisfaction with imprecise police practices when photo lineups are utilized. State v. Ferguson, 3 Wash.App. 898, 479 P.2d 114 (1970); State v. Newman, 4 Wash.App. 588, 484 P.2d 473 (1971). Indeed, we have not hesitated to reverse a conviction and impose the major sanction when the totality of the circumstances surrounding the photo-identification procedure was so impermissibly suggestive as to undermine the reliability of the eyewitness identification. State v. Clark, 2 Wash.App. 45, 467 P.2d 369 (1970).

When a motion to suppress an in-court identification is presented to the trial court, its analysis of the evidence adduced at the pretrial hearing must focus on whether or not impermissibly suggestive procedures were ultilized. More precisely, the trial court must ascertain whether any external suggestiveness, intentional or inadvertent, subtly or obtusely applied, produced the initial identification--or whether the initial identification was truly produced by the independent exercise of the witness's own powers of perception, memory and reasoning. Appellate review, hampered by the cold record, must nonetheless focus on the same issue.

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