State v. Hicks

• Decision Date: 25 April 1979
• Docket Number: 61532,Nos. 60440,s. 60440
• Citation: 277 N.W.2d 889
• Parties: STATE of Iowa, Appellee, v. Gentric HICKS, Appellant. Gentric HICKS, Appellant, v. Lou V. BREWER, Appellee.
• Court: Iowa Supreme Court

Page 889

277 N.W.2d 889

STATE of Iowa, Appellee, v. Gentric HICKS, Appellant.

Gentric HICKS, Appellant, v. Lou V. BREWER, Appellee.

Nos. 60440, 61532.

Supreme Court of Iowa.

April 25, 1979.

Barry M. Anderson and M. Carl McMurray, of Anderson & McMurray, Keokuk, for appellant.

Thomas J. Miller, Atty. Gen., Ann Fitzgibbons, Asst. Atty. Gen., and Gary L. Wiegel, Henry County Atty., for appellees.

Considered by LeGRAND, P. J., and UHLENHOPP, HARRIS, McGIVERIN and LARSON, JJ.

UHLENHOPP, Justice.

Defendant Gentric Hicks challenges his conviction of first-degree murder in these consolidated appeals from the conviction and from denial of postconviction relief.

At approximately 3:00 a. m. on May 23, 1976, a black male entered the Hillcrest Motel near Fort Madison, Iowa. Lorraine Foster admitted the man. Shortly thereafter the man pulled a gun and asked for money. During the course of the robbery Mrs. Foster's son Jerry appeared on the scene. Jerry attempted to talk the man into giving him the gun. A struggle ensued and Jerry was fatally shot. The robber fled.

Meanwhile, Jimmie Foster (Jerry's father) had gone outside and cornered Kenneth Wayne Lawrence. Lawrence had been sitting in his car outside the motel. At that time Lawrence told Foster that the man in the motel was Willie Jefferson. After the shooting the police were called and began their hunt for the robber.

Mrs. Foster provided the police with a description of the man. Lawrence was arrested and changed his story to implicate Gentric Hicks. Officers showed Mrs. Foster pictures of several black men, including Hicks, and she identified Hicks as the robber. She also identified him at a later lineup. Hicks was tried and found guilty of first-degree murder.

At trial Hicks claimed he was not at the Hillcrest Motel that morning. He asserted that Willie Jefferson, his half-brother, may have committed the crime. The evidence indicated that Hicks and Lawrence spent the evening together. Hicks claimed he fell asleep in Lawrence's car and woke up much later in the hallway of an apartment building. Lawrence testified he drove Hicks to the motel where the robbery occurred. Mrs. Foster testified at trial that Hicks was the robber, and the State also introduced fingerprint comparisons which implicated him.

Hicks sought postconviction relief, which was denied. He directly appealed from his conviction and also appeared from the postconviction decision. In his appeals he claims several errors were committed by the district court.

I. Identification. Hicks' first assigned error concerns procedures used to identify him following the homicide.

After Lawrence implicated Hicks and before Hicks' arrest, several officers compiled a group of photographs to show to Mrs. Foster. They showed her seven or eight black-and-white photographs of black men. Mrs. Foster picked out Hicks' picture. Hicks argues the photographic array was improperly suggestive; we set out his major complaints.

Testimony was presented that the photographs were simultaneously placed on a table in a well-lit room within five hours of the crime. According to the evidence, Mrs. Foster took her time before choosing Hicks' picture. Agent Swaim of the Iowa Bureau of Criminal Investigation testified at trial that "she did study each photograph carefully, but made a positive identification of (Hicks' photograph)."

At a suppression hearing Mrs. Foster testified regarding the photographs: "I went over and I picked out (Hicks) and then I said, 'There's another one there that's, you know, a profile of this man that was in my home that killed my son.' " Although police officers present at the array deny that Mrs. Foster picked out two pictures, defendant argues that either two photographs of Hicks were shown her or she picked out a profile of someone else whom she thought was the man.

Additionally, two pictures, one of them of Hicks, had height markings. Defendant argues this was suggestive since Hicks' height fits Mrs. Foster's description of the assailant's height.

Defendant further contends that the array was improperly suggestive because the police did not show her a picture of Willie Jefferson.

Mrs. Foster again identified Hicks at a lineup, arranged at his request after his arrest. The sheriff asked a group of black men from the community to form a lineup. Unknown to defendant, Mrs. Foster had already picked him from the photographs and had also seen a newspaper picture of him at the time of his arrest. Defendant argues this identification was thus tainted, and was further tainted by indications at the time by a member of the lineup and by Mr. Foster that Hicks was the man. Mr. Foster had been unable to identify the robber but had seen Hicks' picture in the newspaper. Mrs. Foster testified, however, that she identified Hicks immediately upon entering the room where the men were lined up.

Hicks contends the identification procedures were "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law," citing Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). He urges on appeal that a new trial be granted in which Mrs. Foster is prohibited from testifying or identifying Hicks.

Assuming that the identification procedures were suggestive, Hicks is not automatically granted a new trial. See State v. Washington, 257 N.W.2d 890, 894 (Iowa 1977), Cert. denied, 435 U.S. 1008, 98 S.Ct. 1881, 56 L.Ed.2d 390 (1978); State v. McManus, 263 N.W.2d 556, 558 (Iowa Ct.App.1977); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Manson the United States Supreme Court rejected a per se exclusion of such evidence. Instead it laid down the rule that a court must determine whether the circumstances indicate the challenged identification was reliable. If so, the pre-trial and in-court identifications are admissible, Manson v. Brathwaite, 432 U.S. at 106 n. 9, 110 n. 10, 97 S.Ct. at 2249, 2251, 53 L.Ed.2d at 149, 151; questions regarding the identification can be brought to the jury's attention by cross-examination.

The reliability factors set forth in Manson are:

(T)he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154.

Our examination of these factors indicates defendant's request to suppress Mrs. Foster's identification testimony was properly denied. We consider the factors seriatim.

1. Opportunity of the witness to view the robber at the time of the crime. Mrs. Foster had ample opportunity to observe the robber closely. He was in close proximity to her in a well-lit room for approximately ten minutes. She was able to observe him prior to and during the crime. She had sufficient time to observe his face, hands, clothing, demeanor, and general appearance.

2. Degree of attention. Mrs. Foster testified that she got several good looks at the defendant when he first entered the motel. She carried on a conversation with him a few feet away; at trial she stated, "He was right up in front of my face, and this wasn't only just one time, this was several times." After the crime she stated the robber held the gun to her face and "looked me square in the eye." The events were such that Mrs. Foster was not merely a casual, inattentive observer.

3. Accuracy of the description. Mrs. Foster described the robber before the pictures were shown. She relayed information regarding the robber's race, age, height, whiskers, and clothing which matched Hicks' characteristics and clothing. Shortly after the crime she told investigators that she "would recognize (the robber) again if she saw him."

4. Level of certainty demonstrated at the confrontation. Testimony was presented by Mrs. Foster and investigating officers that she exhibited a high degree of certainty at both confrontations.

5. Time span. Mrs. Foster picked out Hicks' picture less than five hours after the crime. Several days later she again picked him from a lineup.

We have examined Hicks' contention that his half-brother Jefferson may have been the robber. Both the police and the defense were unable to locate Jefferson. Testimony was presented that Jefferson stands over six feet tall. Mrs. Foster, who stands 5' 6 , was insistent that the robber was near her height; Hicks is slightly taller than she. Jefferson is lighter-colored and thinner than Hicks. Mrs. Foster accurately described Hicks' clothing, height, and other features.

We have balanced the claimed corrupting effect of the identification procedures against the reliability factors. Apropos here is the observation of the United States Supreme Court in Manson, 432 U.S. at 116, 97 S.Ct. at 2254, 53 L.Ed.2d at 155: "(W)e cannot say that under all the circumstances of this case there is 'a very substantial likelihood of irreparable misidentification.' . . . Short of that point, such evidence is for the jury to weigh." A case decided before Manson is State v. Wisniewski, 171 N.W.2d 882 (Iowa 1969). Error does not appear at this point.

II. Jury View. Hicks contends the trial court's refusal to grant his motion for a jury view of two sites was error. The defense asked the trial judge to allow the jury to view (1) "the scene of the ground behind the Hill Crest Motel on Highway 61 . . . So they can get a first-hand impression of the State's evidence," and (2) "the apartment building in question . . . For the purposes of corroborating testimony in connection with what Mr. Hicks had done; and also for viewing the fact that there is a gangway or a space between the building(s) . . . ." (Emphasis added.)

The decision to grant or deny a jury...