State v. Cunningham

• Decision Date: 25 June 1976
• Docket Number: No. 11985,11985
• Citation: 551 P.2d 605,97 Idaho 650
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Wayne CUNNINGHAM, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 605

551 P.2d 605

97 Idaho 650

The STATE of Idaho, Plaintiff-Respondent, v. Wayne CUNNINGHAM, Defendant-Appellant.

No. 11985.

Supreme Court of Idaho.

June 25, 1976.

Richard P. Wallace, Coeur d'Alene, for defendnat-appellant.

Wayne L. Kidwell, Atty. Gen., Boise, R. Romer Brown, Sp. Asst. Atty. Gen., Coeur d'Alene, James F. Kile, Asst. Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

Appellant was convicted by a jury of three offenses: rape and two counts of an infamous crime against nature. ¹ The following facts were adduced at his trial.

On January 13, 1975, a young woman, Ms. X, was staying late for business classes in Spokane. At 845, classes ended and she walked to her car in a lot three blocks away. Just as she reached her car she noticed a man she later identified as the appellant and as she unlocked her car he pushed her in and threatened her with her life, saying that he had a knife. He told her he wanted to go Post Falls to see his wife and children and told her he would olet her out at the state line. On the trip they had to stop once for gas at a well-lit station where the prosecutrix got a good look at her abductor. The defendant would not let Ms. X get out of the car when they reached the state line and forced her to go to Post Falls, Idaho. After reaching Post Falls they turned off into the country and eventually parked in an isolated area. The prosecutrix was then forced to perform a single act of sexual intercourse and four acts of Fellatio in the next hour and a half. During the assault, Ms. X's abductor showed her a number of tattoos on his chest and arms, including one of a snake and also the word 'Pam.' Finally, the couple returned to Spokane and the appellant jumped out of the car at an intersection. Prosecutrix then returned to her apartment and three friends took her to the hospital. The incident was reported to the police and based upon Ms. X's description of her assailant, the defendant was arrested. Following his conviction on May 29, 1975, defendant appealed to this Court.

Appellant first assigns as error the trial court's admission of five photographs into evidence which were used in a photographic lineup that included appellant. Appellant contends that the lineup was overly suggestive and thereby violated appellant's right of substantive due process.

Approximately one week after the victim had been attacked she identified the appellant from a photographic lineup of five men of generally similar appearance. The record shows that the victim had gone to high school with three of the men pictured and recognized them during the lineup. Appellant contends that this, in effect, left a lineup consisting of only two men and that such a lineup is so unnecessarily suggestive as to make any identification totally unreliable. We do not agree.

The United States Supreme Court faced this issue in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). There the victim of an assault identified the defendant in a lineup that included only one black, the defendant. The victim, at that time, was in critical condition, making the hospital confrontation imperative. The Court stated that the test in such a case is whether the confrontation was so 'suggestive and conductive to irreparable mistaken identification that (the defendant) was denied due process of law.' Stovall v. Denno, supra, at 1972. The Court went on to say that a determination of such a claim requires the Court to consider the 'totality of the circumstances surrounding (the identification).' Stovall v. Denno, supra, at 1972. See also, Cooper v. State, 96 Idaho 542, 531 P.2d 1187 (1975); State v. Sadler, 95 Idaho 524, 511 P.2d 806 (1973); State v. Daughterty, 94 Idaho 232, 486 P.2d 243 (1971), where this Court applied the 'totality of the circumstances' test and recognized its applicability to confrontations made prior to initiation of judicial proceedings. In Stovall, the Court held that due to the need for immediate action, the circumstances were such that the normal police lineup was out of the question and the hospital confrontation was justified. The Court subsequently applied this same test in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Neil v. Biggers, supra, was a rape case very similar to the present one. The victim had been in the presence of her assailant up to half an hour; had faced him directly and intimately once in the house, and later in the woods, in the moonlight; her description to the police including height, age, build, was thorough; she testified that she had 'no doubt' that the accused was the person who raped her; she testified that there was something about her assailant's face she could never forget; and although there was a lapse of seven months between the rape and the showup identification, the victim had not identified any other suspect as her assailant. The showup consisted of two detectives walking the defendant alone past the victim and directing him to repeat a particular phrase. The police had been unable to construct a suitable lineup, as no one at the jail or the city juvenile home fit the physical description.

In the present case, the victim, Ms. X, was in appellant's presence approximately five and three-quarters hours; had faced him directly and intimately, including taking advantage of his invitation to look at his face in a well lit gas station; her description to officers at the hospital, a few minutes after her return, included a distinctive snake tattoo and later on that same day her description to Officer Stewart included the snake tattoo and a tattoo of the name 'Pam,' a gouged lip, and a general description including age, height, body build, race; she testified that she had no doubt that the accused was the person who raped her. As in Neil, Mx. X testified, and reiterated upon cross-examination that she would never forget her assailant's eyes; there was only a week between the incident and the photo identification, and three weeks to the lineup; she had unhesitatingly picked the appellant, and no one else at any time, even though the phograph of the appellant was dissimilar to his present appearance.

The Court in Neil reviewed its past decision concerning suggestive identifications and held that unnecessary suggestiveness alone does not require the exclusion of evidence regarding the identification. Rather, under the 'totality of circumstances' if the identification is found to be 'reliable even though the confrontation procedure was suggestive' there is no violation of defendant's right of due process in admitting the evidence. Neil v. Biggers, supra, at 382. Considering the length of time Ms. X spent with her assailant, her detailed description concerning his tattoos and gouged lip; her ability to direct the composition of a sketch remarkably similar in appearance to the appellant; and her subsequent live lineup and in-court identification of appellant; it is the opinion of this Court that there was no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury. This being the case, there is no need to consider appellant's contention that the subsequent live lineup and in-court identifications by the victim were 'tainted' by an impermissibly suggestive lineup.

We now turn to appellant's assignment of error to the admission into evidence of a 'mugshot' of the appellant. Appellant claims that the mugshot was improper impeachment and that it unfairly prejudiced his case. This Court has not previously considered this issue and must therefore look to other jurisdictions for guidance.

In 1966, the Circuit Court of Appeals for the District of Columbia considered the question in Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966). There, a mugshot had been admitted to buttress testimony naming the persons pictured as the perpetrators of the crimes. The mugshot had been taped over to cover all identification marks and numbers. The Court noted that it is settled law that the criminal record of the defendant may not be introduced unless the defendant places his character in issue. Noting that the mugshot had little probative value in and of itself, the court found its admission to be improperly prejudicial and reversed the conviction.

In United States v. Johnson, 495 F.2d 378 (4th Cir. 1974), a taped-over mugshot was admitted incident to testimony by an identification witness. The mugshot showed the difference in the defendant's appearance between the date of identification and the time of trial. Finding probative value in the mugshot, the court found no error in its admission.

Our sister state of Washington allowed the admission of a trimmed mugshot which had been used by a witness to identify the defendant. The court was again swayed by the fact that the mugshot portrayed defendant's appearance at the time of the assault which differed from his appearance at the time of the trial. State v. Tate, 74 Wash.2d 261, 444 P.2d 150 (1968). See also, Mug Shots-Admissibility-Prejudice, 30 A.L.R.3d 908 (1970).

In the present case the mugshot was offered to prove an extra judicial identification of the appellant. In addition, the mugshot showed a change in the appellant's appearance from the time the photo had been taken to the time of the trial. The mugshot was trimmed by the trial judge to eliminate any reference to the local police department and while it is possible that the modified picture could lead the jurors to infer the existence of prior criminal convictions it is just as likely that the jury assumed they were taken by the police when the appellant was arrested on the charges for which he was presently being tried. The record also discloses...