State v. Cook, 6229-8-I

• Decision Date: 20 January 1982
• Docket Number: No. 6229-8-I,6229-8-I
• Citation: 31 Wn.App. 165,639 P.2d 863
• Parties: STATE of Washington, Respondent, v. Mark Edwin COOK, Appellant.
• Court: Washington Court of Appeals

Page 165

31 Wn.App. 165

639 P.2d 863

STATE of Washington, Respondent, v. Mark Edwin COOK, Appellant.

No. 6229-8-I.

Court of Appeals of Washington, Division 1.

Jan. 20, 1982.

Rehearing Denied March 9, 1982.

As Amended March 16, 1982.

Seattle-King County Public Defender Wayne Lieb, Seattle (Court-appointed), for appellant.

Norman K. Maleng, King County Prosecuting Atty., Michael Duggan, Deputy Pros. Atty., Mr. Jim Hoover, Dep., Mr. Kurt Hermons, Dep., Seattle, for respondent.

DURHAM, Judge.

Mark Edwin Cook appeals his conviction of two counts of first degree assault and one count of aiding a prisoner to escape, with special verdicts on each count finding that he was armed with a deadly weapon and a firearm. The charges stemmed from crimes committed during two separate but related incidents, a bank robbery and the escape of a prisoner from Seattle's Harborview Hospital.

On January 23, 1976, at about 4:50 p.m., the Tukwila branch of the Pacific National Bank was robbed by four armed men. Three entered the bank: Bruce Seidel, Edward Mead, and John Sherman. Seidel was killed in the ensuing gunfire with police. Mead and Sherman were arrested at the bank.

The fourth man was stationed at a car across Interurban Avenue from the bank. After exchanging gunfire with police, this man fled in the car. A primary issue in this appeal is the procedures used by the police to identify the fourth man. ¹

Three people saw the fourth man. Officer Mathews, who exchanged gunfire with him, could only describe him as a black man driving a tan over brown Ford Granada. The other two witnesses gave more complete descriptions.

Jack Stockham, a retired Seattle police officer and owner of the tavern located next to the bank, heard shots about 4:50 p.m. on January 23. He went to the back door of the tavern and saw a man leaning over the top of a car parked across the street, firing at Officer Mathews who was crouched next to his car in the bank parking lot. Stockham saw the gunman clearly-there were no obstructions-for 5 or 6 seconds at a distance of 30 to 40 yards. He turned to go, then went back for a second look "to pick out some feature that I could recognize." Later he told police that he had seen a black man, 30-35 years old, 5 feet 10 inches tall, 170 pounds, with an unusual nose, short beard, and no glasses.

Several weeks later, Detective Conner showed Stockham a 6-picture photo montage without indicating who the police suspected. Stockham picked No. 3 (Cook) because it resembled the man he had seen. He then picked two other photos to illustrate the proper complexion since the quality of picture No. 3 was poor. Detective Conner said that Stockham was unable to clearly identify a suspect from the three pictures he chose.

Stockham was asked to attend a police lineup which was held March 15, 1976. He was shown six men, and he recognized position No. 3 (Cook) as the man he had seen at the robbery. He had no doubt about this identification. Stockham had conducted lineups himself and thought this lineup was a good one. He detected no apparent difference in age between the lineup subjects.

The other witness was 19-year-old Douglas Fluaitte, who was driving home from work on January 23 at 4:50 p.m. and stopped at an intersection across from the bank during the robbery. To his left, about 25 feet away, he saw a black man shooting at a policeman across the street. He described the man as 35-40 years old, 150-160 pounds, 5 feet 9 inches to 5 feet 10 inches, dark complexion, moderate Afro hair style, no hat, long sideburns, and moustache. There was ample light for Fluaitte to see the man clearly and he observed him for about one minute. As the man drove away in his car, he came within one foot of Fluaitte's car.

On March 2, 1976, Detective Conner showed Fluaitte the same photos shown to Stockham, again without indicating who the police suspected. Fluaitte could not identify anyone from the pictures. Conner then pointed to the photo of Mark Cook and said, "This may be the man", but Fluaitte still could make no identification.

On March 15, 1976 Fluaitte attended a police lineup. From the six men in the lineup, he picked No. 3 (Cook) as resembling the man he saw at the robbery, but he made no positive identification. He stated that he remembered the robbery, not the photo he had been shown: "(the photo) had nothing to do with it. I was referring back to the robbery when I made my identification."

The second incident occurred on March 10, 1976 at Harborview Hospital. Officer Virgil Johnson, employed as a court deputy for King County, had escorted John Sherman from the jail to the hospital to receive treatment for gunshot injuries sustained during the Tukwila bank robbery. As Johnson and Sherman crossed the parking lot to return to the van, Johnson saw a stranger in the parking lot. He described him as a black man, 5 feet 10 inches to 6 feet, 165-175 pounds, medium build, in his mid-30's, with Afro-style hair, gray above one eye, a distinctive walk, wearing dark slacks, a white lab coat, and carrying a small black bag.

As Johnson entered the van, someone from behind said, "I'm taking your prisoner." Johnson turned and was hit by a bullet fired by the man who stood 8 inches away. Johnson fell, the bullet passing through him. Before he was shot he looked into the face of the man and saw that it was the same person he had just seen in the white lab coat. Johnson said the man's voice was calm and educated.

Johnson rolled away against another parked car and feigned dead, fearing another shot. Before closing his eyes, he again looked at the man for 5 or 6 seconds. Someone removed his gun, and then Johnson observed the assailant and Sherman walk away. Johnson managed to give a brief description of the man as he was wheeled to surgery.

Mark Cook was arrested about March 11, 1976. On March 15, 1976, Detective DePalmo and Officer Strunk showed Johnson a 7-picture photo montage in his hospital room. Johnson tentatively picked No. D (Cook) because it "looked a lot like" him, but he was not positive. He was then shown a color photo of Cook, which he recognized as being even more like the man in the parking lot, but he was not positive since he wanted to check other non-photographic characteristics-the distinctive walk, the voice, the way he moved.

Johnson attended a 7-man lineup on May 6, 1976, and identified Cook. He had no doubt that Cook was the man, due to the distinctive walk and the voice. Johnson said that the photos he had previously seen did not influence him in his identification of Cook at the lineup.

Earnestine Sanders, a Harborview financial counselor, was returning from lunch on March 10, when she saw a "pretty attractive looking fellow" in a white coat holding a bag. She thought he was perhaps a doctor, unusual since there are few black doctors at Harborview. She noticed a "very attractive hairdo, an Afro with some pretty gray in it." She came within 3 or 4 feet of him. Curious, she passed him again on her way to the gift shop, and tried to spot his name tag and necktie, required of doctors, but did not see any. She passed him again on her return to her office. She described a black man, 5 feet 7 inches to 5 feet 9 inches tall, 150-180 pounds, in his late 30's or early 40's, a "pretty black Afro, all gray in it," a "distinguished looking forehead" and "broad nose and piercing eyes."

After learning of the shooting in the parking lot, Sanders spoke with Johnson in his hospital room on March 15, indicating that she had seen a suspicious person immediately before the shooting. Later that day, DePalmo and Strunk showed Sanders the same photo montage shown to Johnson. She picked Cook's picture "because it looked like the person I saw in the hospital." She was then shown a color photo of Cook, which she recognized as "(t)he same person just in color."

Sanders attended the lineup on May 6, 1976. She recognized the man in position No. 5 (Cook) as the man she saw at the hospital. She was sure of her identification because she remembered him as an attractive looking man. The photos she had seen did not influence her: "No, I remembered the man-the body."

The eyewitness identifications were corroborated by Autry Stirgus, Jr., a long-time friend of Cook. Stirgus testified that in late January 1976, he and Cook drove to the scene of the Tukwila robbery where Cook described the events of January 23 in detail. Stirgus said that Cook told him that he was the backup man, had fired on police, then had sped away in the car. Cook also told Stirgus that he cut his hair and beard after the robbery to alter his appearance. Stirgus said that Cook and Seidel were friends.

Cook was charged with first degree assault in connection with the bank robbery (count I), first degree assault in connection with the shooting of Virgil Johnson at Harborview (count II), and aiding a prisoner to escape, (count III). He was charged with being armed with both a deadly weapon and a firearm in connection with all three counts. RCW 9.95.040, 9.41.025. After a 2-week trial which began on September 20, 1976, the jury returned a verdict of guilty on all counts.

Cook first assigns error to the denial of his motion to suppress the eyewitness identifications. He claims that the photo montages and the lineups were impermissively suggestive and required suppression. According to Cook, the photo montage shown to Stockham and Fluaitte was suggestive because Cook's photograph was blurred and distorted. Two men were shown wearing sunglasses. When Fluaitte failed to identify any of the photos, Detective Conner pointed out Cook's picture. Similarly, Johnson and Sanders were shown a single color photo of Cook after they picked him from the montage. Cook also contends that the March 15 lineup was defective because Cook was older than the other men, and the subjects varied widely in height. Furthermore, a height discrepancy appeared in the May 6 lineup, and only Cook had a full...