State v. Derri

• Decision Date: 23 June 2022
• Docket Number: 100038-3
• Parties: STATE of Washington, Respondent, v. Christopher Lee DERRI, a/k/a John Stites, Petitioner.
• Court: Washington Supreme Court

511 P.3d 1267

STATE of Washington, Respondent,

v.Christopher Lee DERRI, a/k/a John Stites, Petitioner.

NO. 100038-3

Supreme Court of Washington.

Argued February 15, 2022

Filed June 23, 2022

Kate Huber, Lila Jane Silverstein, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Petitioner.

Stephanie Finn Guthrie, King County Prosecuting Attorney's Office, 516 3rd Avenue Suite W554, Seattle, WA, 98104-2362, for Respondent.

Lara Zarowsky, Washington Innocence Project, P. O. Box 85869, Seattle, WA, 98145-1869, David S. Frankel, Aaron L. Webman, Andrea Maddox, Kramer, Levin, Naftalis & Frankel, LLP, 1177 Avenue Of The Americas, New York, NY, 10036, Anton Robinson, Innocence Project, Inc., 40 Worth Street, Suite 701, New York, NY, 11213, for Amici Curiae on behalf of Innocence Project, Washington Innocence Project.

Seth Aaron Fine, Snohomish County Prosecuting Attorney's Office, 3000 Rockefeller Ave, Everett, WA, 98201-4060, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys (WAPA).

GORDON McCLOUD, J.

¶1 In March 2017, three bank robberies occurred in North Seattle. Police administered a variety of photomontages to witnesses. Some aspects of the photomontage process complied with best practices generally recognized by new scientific research; some aspects of that process did not; and some aspects of that process fell into a gray area on which the scientific literature is in dispute. Defendant John Stites¹ moved to suppress the identifications resulting from those photomontages on federal constitutional grounds; the trial court denied his motion, and he was convicted of all three robberies.

¶2 "[M]istaken eyewitness identification is a leading cause of wrongful conviction." State v. Riofta , 166 Wash.2d 358, 371, 209 P.3d 467 (2009) (citing Brandon L. Garrett, Judging Innocence , 108 COLUM. L. REV. 55, 60 (2008) ). At least eight Washingtonians have been exonerated after being convicted, in part, based on mistaken eyewitness evidence, but the number of people wrongly convicted on this basis is likely much higher.² The due process clause of the Fourteenth Amendment offers some protection against this problem: it bars the admission of eyewitness identification evidence obtained through suggestive police procedures, unless the evidence is nevertheless reliable under the totality of circumstances. U.S. CONST. amend. XIV ; Manson v. Brathwaite , 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

¶3 This case asks us to decide whether trial courts must consider new scientific research, developed after the 1977 Brathwaite decision, when applying that federal due process clause test.³ The answer is yes. We hold that courts must consider new, relevant, widely accepted scientific research when determining the suggestiveness and reliability of eyewitness identifications under Brathwaite . Considering this research, we conclude that all three of the challenged identification procedures were suggestive. Under the totality of circumstances, however, the identifications were nonetheless reliable.

¶4 Stites also challenges the sufficiency of the charging information. Where, as here, such a challenge is first raised on appeal, we read the information liberally in favor of validity.

State v. Kjorsvik , 117 Wash.2d 93, 102, 812 P.2d 86 (1991). Under that test, the information contains the necessary facts and Stites fails to show prejudice from its wording.

¶5 We therefore affirm the convictions.

FACTS ⁴

Three Bank Robberies Occur in North Seattle

¶6 In March 2017, two banks were robbed in North Seattle. Chase Bank was robbed on March 1 and HomeStreet Bank was robbed twice, once on March 7 and once on March 11. 1 Clerk's Papers (CP) at 5-7.

A. March 1, 2017: Robbery at Chase Bank

¶7 On March 1, 2017, branch manager David Fletcher and teller Jacob Price were working at Chase Bank in North Seattle. Id. at 33. Around 3 p.m., a man entered the bank, approached Fletcher, and demanded cash. Id. at 33, 236. The man asked for wrapped $20 bills from the bottom drawer, requested the merchant teller, and said he didn't want any "dye packs." Id. at 34. Fletcher and Price began putting money on the counter. Id. at 34, 236. The robber began stuffing the money into a duffel bag. Id. at 36. The robber asked for more money, and the employees put loose coins on the counter. Id. at 236. The robber then left. Id.

¶8 Police responded shortly thereafter, and Fletcher described the robber as a male, about 5 feet 11 inches tall, "very thin with a sunken in face wearing a thick olive green winter coat with the hood of his jacket pulled up over his head." Id. The police then took Price to view a possible suspect who had been detained nearby, but Price told them it was the wrong man. Id. at 39.

¶9 Around 4 p.m. that same day, Detective Len Carver obtained photographs of the robber from the bank's surveillance cameras. Id. at 218, 227. After police disseminated the photos to a large Seattle Police Department e-mail list, an officer e-mailed Carver, saying, "I think a good suspect is John T. Stites ... AKA Christopher L. Derri." Id. at 229. Detective Carver then located a 2015 jail booking photo of Stites. Id. at 218.

i. March 2, 2017: Fletcher and Price fail to make a pick from a photomontage

¶10 The next day, March 2, 2017, Carver interviewed Price. Price described the robber as about 5 feet 10 inches to 6 feet tall, 30 to 40 years old, with brown eyes, "very thin, very pale," not clean-shaven, with "very sunken in cheeks." Id. at 38. Detective Carver read a standard admonition to Price, then showed Price a six-photo, sequential montage that included the 2015 booking photo of Stites.⁵ Id. at 44-50. Price did not make a pick. Id. at 44.

¶11 The same day, Fletcher was shown the same six-photo montage. Id. at 52-58. The record does not contain any transcript of an interview of Fletcher by Detective Carver. Fletcher was shown the photos sequentially and in a different order from Price. Id. He did not make a pick. Id. at 52.

ii. March 10: Fletcher and Price are shown a second photomontage, and Fletcher selects Stites

¶12 On March 10, 2017, Detective Carver showed Fletcher and Price a six-photo, sequential montage that included Stites once again—but this time the detective used a more recent photograph of Stites. See id. at 186-192, 77-83, 85-91. Detective Carver read the montage admonition to Price.

Id. at 77-83. Price initially selected Stites’ photo. Id. at 94. However, when he noticed the tattoo on Stites’ neck, he changed his mind—because he didn't remember the robber having any tattoos. Id. at 94-95. Ultimately, Price did not make a pick.

¶13 The record contains no interview with Fletcher during this second photomontage, either, but Fletcher did sign a "Montage Identification Sheet" that contained the admonition. Id. at 77. This time, Fletcher selected Stites’ photo and indicated that he recognized Stites as the robber. Fletcher was 90 percent certain. Id. at 78.

iii. March 7, 2017: Robbery at HomeStreet Bank

¶14 On March 7, 2017, a similar robbery occurred at HomeStreet Bank in North Seattle. Id. at 241. Around 5:15 p.m., a man entered and approached tellers Hannah Amdahl and Andrew Hilen. Id. at 241, 293. The man "said ... something along the lines of ... this is a robbery, ... give me your money." Id. at 279, 295. He asked for the merchant teller and also told the tellers not to include "dye packs" or "devices." Id. at 279, 281. The tellers began putting money on the counter, and the man began putting it in his pockets. Id. at 279. Eventually, Amdahl and Hilen backed up and put their hands up to indicate that was all the money they had. Id. at 280. The robber then looked at both tellers and apologized before walking out the door. Id. at 296. Hilen said that the robber spent about 15 seconds in front of each teller. Id.

¶15 After the robber left, Amdahl called 911. Id. at 297. Amdahl and Hilen described the robber to police as an adult white male, wearing a hat, a "jacket with the hood up and cinched down over the hat," baggy jeans, and gardening gloves. Id. at 241. Amdahl described him as "tall, pale and thin." Id.

¶16 Both Amdahl and Hilen also told police that they recognized the robber as a man who had come into the bank on February 23 or 24 to ask about opening a checking account. Id. at 242, 284, 299-300. Amdahl had discussed accounts with him, and at the end of their conversation, the man introduced himself as "John Stites." Id. at 283. Amdahl wrote down the man's name so she would remember their conversation in case Stites did come back to open an account. Id. at 284. She didn't write down the date at the time, but about a week later, she wrote "2/24?" on the note. Id. at 147, 282.

¶17 Amdahl said she recognized Stites as the March 7 robber because he had the same "sunken in eyes and ... he looked very emaciated in the face." Id. at 285.

¶18 Bank manager Dustin Foss learned of the robbery and went to the bank around 6 p.m. on March 7. Id. at 251. He learned from an officer that the suspect's name was John Stites. Id. at 257. Recognizing the name as someone with whom he had attended elementary school, Foss searched Facebook and found a profile photo for a John Stites. Id. at 257-58. Foss said he showed the photo to Amdahl and Hilen either the night of the robbery or the following day and asked them if it looked like the robber. Id. at 259.⁶ Foss said that both tellers identified the photo as the robber. Id. No copy of the Facebook photo appears in the record.

iv. March 8: Amdahl selects Stites from a photomontage

¶19 On March 8, 2017, Detective Carver interviewed Amdahl. She described the robbery and said that the robber was wearing a black Windbreaker with the hood "pulled up and the strings pulled so it was tight against his face, so you could only see his face." Id. at 279. Detective Carver had assembled a seven-photo montage using the more recent photograph of Stites. Id. at 60-67. He read Amdahl the...