State v. Gefeller

• Decision Date: 31 July 1969
• Docket Number: No. 39899,39899
• Citation: 76 Wn.2d 449,458 P.2d 17
• Parties: The STATE of Washington, Respondent, v. James Ely GEFELLER, Appellant.
• Court: Washington Supreme Court

Page 449

76 Wn.2d 449

458 P.2d 17

The STATE of Washington, Respondent, v. James Ely GEFELLER, Appellant.

No. 39899.

Supreme Court of Washington, Department 2.

July 31, 1969.

Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Laurence A. Mosler, Deputy Pros. Atty., Seattle, for respondent.

HALE, Judge.

If Nancy Williams had not been awakened at 3:20 in the morning by a noise from across the street, the chances are the defendant would not have been convicted of burglary. The Williamses lived in a second-floor apartment on North Greenwood Avenue in Seattle opposite the 68th Street Tavern. In the early morning hours of February 21, 1967, they were asleep in the front bedroom when, as Mrs. Williams testified:

(W)e were sleeping and I was awakened by a ripping noise. It was something unusual that woke me up because our bedroom is on the front of our house, and I looked out the window and I saw a man breaking into the front door of the tavern and I looked long enough to see what was going on and then I went and called the police.

Greenwood, she said, is a 4-lane, well-lighted street; she looked out the window for 15 or 20 seconds and had a good look at the defendant. He appeared to be prying open the front door of the tavern.

While the defendant was inside the tavern, she actually saw his face. She described his apparel as 'light cream-colored pants that looked like denims and a green jacket and hat.' The jacket, she said, was of waist length, and the short-brimmed hat he was wearing did not cover his face. This description was corroborated by others who had seen the defendant earlier that night. Interior lighting of the tavern gave her good visibility, she said. When she telephoned the police, it awakened her husband. He got up, looked out the window at the tavern, got a pistol and went downstairs. A few minutes later she heard the sound of shots.

Paul Williams, her husband, testified that he was awakened that morning about 3:20 by his wife, and she told him someone was breaking into Bob's tavern--the 68th Street Tavern--across the street. He looked out his bedroom window at the tavern. He had a very good view, he said because his windows were 15 or 20 feet above the ground. At first he saw only shadows in the tavern and then a man inside it. He stated he got a good look at the defendant in front of the tavern because there was a yellow lantern at the end of the bar, and defendant walked between the window and that light. Mr. Williams got his gun, ran downstairs, and, seeing what he thought was a second man running alongside the tavern, took up a position next to his own building, all the while watching across the street. He said he did not want to see 'Bob's tavern get robbed,' so he fired a shot at the front door 'just to get them out of there,' and then fired another shot. The police were there within 3 or 4 minutes.

Both Mr. and Mrs. Williams testified that the defendant in court was the man they recognized as the man in and near the tavern that early morning of February 21, 1967. They identified him for the police the next morning from a solitary police photograph and at a lineup on the same day at the police station as the same man they had seen that early morning near and inside the tavern.

When the police arrived, they found the front door of the tavern open, its lock forced, the door casing broken and the rear door standing open. Another team or officers investigating the area found a 1966 Chevrolet convertible automobile 1/2 block from the tavern, parked 2 1/2 feet from the curb, faced the wrong way, with its motor warn and one door ajar. The car proved to be licensed in the defendant's name as registered owner. Examination of the car showed that it had not been hot-wired or apparently tampered with. The police impounded it. Next day, when defendant went to the police station to report that his car had been stolen and to have it released, he was placed under arrest. Defendant did not testify but sought to prove an alibi through others.

He appeals his conviction of burglary, urging three assignments of error, the first of which covers both the use of a single police identification picture and evidence of a police lineup or showup. After the burglary and before seeing either the police photograph or lineup, the Williamses had given the police a clear description of the burglar and his apparel. Later that morning, a Seattle detective in interviewing them showed them a police photograph of the defendant, and both said that he was the man they had seen in the tavern. How or why the police happened to have the defendant's picture is not made clear in the record. Neither witness had any hesitancy or self-doubt in identifying defendant from the picture either in a police lineup or in court as the man they had seen in the commission of a burglary. The identification by photograph thus falls within the rationale of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, (1968), at 384:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and 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. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972--1973, (18 L.Ed.2d 1199), and with decisions of other courts on the question of identification by photograph.

Showing the two witnesses a picture of the accused soon after the commission of the crime which they had witnessed was not, we think, 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, Supra. Both witnesses testified that their identification of the defendant at the lineup and at trial had not been affected or influenced by seeing the photograph. To hold otherwise as a matter of law would amount to an errant, argumentative judicial assumption of fact. The sight of a picture showing part or all of a clearly seen event soon after its occurrence without more cannot be said as a matter of law to induce such a suggestion in the mind of a witness as to render inadmissible his testimony concerning identity of the person in the picture. Whatever normal uncertainties may be claimed to have inhered in seeing the picture could well be disclosed by cross-examination. The state should not be deprived of this identification merely because the police had shown the two witnesses only a solitary picture. State v. Kearney, 75 Wash.Dec.2d 178, 449 P.2d 400 (1969).

At the police station, defendant acceded to the request of the police that he appear in a lineup or, as it is sometimes called, a showup. He does not urge compulsion, nor ignorance of his rights, privileges or immunities, nor that...