State v. Hunton, No. 21371-4-III (Wash. App. 2/24/2004)
| Decision Date | 24 February 2004 |
| Docket Number | No. 21371-4-III,21371-4-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LUKE McDONALD HUNTON, Appellant. |
Appeal from Superior Court of Spokane County, Docket No: 01-1-00679-8, Judgment or order under review, Date filed: 08/16/2002, Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Suppression of a lineup for identification does not rule out an in-court identification. But the in-court identification must be based on information independent of the suppressed lineup. State v. Redmond, 75 Wn.2d 62, 64-66, 448 P.2d 938 (1968). Here, the trial judge found that the bank employees' in-court identifications of Luke McDonald Hunton were sufficiently removed from the identifications made at a previous lineup the judge had suppressed. That finding is amply supported by this record. We also conclude there is ample evidence to support the elements of robbery. We reject the remainder of Mr. Hunton's assignments of error and affirm his conviction.
Mr. Hunton robbed a Wells Fargo Bank and then the same branch of a Washington Trust Bank twice. He wore sunglasses and a baseball cap and calmly demanded `hundreds, 50s and 20s.' Report of Proceedings (RP) at 1020, 1354, 1507-08. At trial an employee from each bank identified Mr. Hunton as the robber. And bank employees saw Mr. Hunton with a car that other witnesses connected to him in the first and last robberies. Another witness gave Mr. Hunton the New York Yankees baseball cap that he wore when he robbed Washington Trust. She also recognized the shirt the robber was wearing in security photographs as one she had seen Mr. Hunton wear.
Three Washington Trust employees identified a plaid jacket in court that was seized from Mr. Hunton's sister's house. The robber wore the same or similar jacket. These same employees testified that the person who robbed the branch the first time was the same person who robbed it the second.
An acquaintance of Mr. Hunton's drove him to the bank on the day of the second robbery at Washington Trust. He asked to borrow her sunglasses before going in. Mr. Hunton returned $20 he had borrowed from her earlier when he got back to the car after he robbed the bank. She and another occupant of the car later reported to the `Secret Witness' program. Mr. Hunton tried to rent an apartment on the day of this robbery. He flashed a number of $50 bills. Others saw him with a large number of $20 bills. He said he needed the apartment for only two weeks `until he got out of town.' RP at 1708. The landlord refused to rent to him. At trial, Mr. Hunton represented himself at his own insistence.
Mr. Hunton challenges the witnesses' identifications of him in court. He argues that bank employees Tara Brandt, Mary Kaplan, Jessica Niederkleine, and Desirae Beeler were not able to identify him in a photomontage, and yet `many' of these witnesses were allowed to make an in-court identification. Appellant's Br. at 16-17.
First, neither Ms. Brandt (who was called as a defense witness) nor Ms. Beeler made in-court identifications. They were not even asked to do so. See RP at 1390-1413, 1349-68. This argument does not then apply to them. Second, Ms. Niederkleine made an in-court identification only when Mr. Hunton asked if she thought he was the bank robber.1 Mr. Hunton cannot now object to a witness's direct answer to a question that he asked. Third, Ms. Kaplan testified at the evidentiary hearing that she did identify Mr. Hunton from a photomontage. RP at 303. Mr. Hunton's claim is then unsupported by this record.
Mr. Hunton next argues that the in-court identification was unduly suggestive. The issue is whether his in-court presence can be construed as an `impermissibly suggestive' procedure, which created a substantial likelihood of irreparable misidentification that would call into question the reliability of the in-court identification. See State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977); State v. Shea, 85 Wn. App. 56, 59-60, 930 P.2d 1232 (1997); State v. McDonald, 40 Wn. App. 743, 746, 700 P.2d 327 (1985). An in-court identification is not inherently suggestive when a witness has previously identified the defendant, and the witness making that identification is subject to cross-examination and observation by the jury.2 Finally, Mr. Hunton did not object to the court's ruling on this question at trial.
Mr. Hunton next argues that the in-court identifications were tainted by a lineup, the results of which the court suppressed. Pretrial Mr. Hunton moved to prohibit the three witnesses who identified him in the suppressed lineup from identifying him in court. The three witnesses identified at the hearing were Kathy Anderson, Toni Flagler, and Mary Kaplan. Because there is nothing in the record to show that Ms. Anderson identified Mr. Hunton in a physical lineup or even participated in one, we need not address his objection to her identification.
A post-indictment lineup is a critical stage in prosecution at which the accused must be given the opportunity to be represented by counsel.3 The denial of a suspect's constitutional right to counsel at a pretrial lineup requires suppression of the identification in the State's case in chief against the defendant. Gilbert v. California, 388 U.S. 263, 272-73, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). But an in-court identification which stems from an independent source—one other than the pretrial lineup conducted in violation of the suspect's Sixth Amendment rights—will not be excluded. Hilliard, 89 Wn.2d at 439-40. As such, the witness may make an in-court identification if the prosecution shows by clear and convincing evidence that the in-court identification has a basis independent of the pretrial procedure. State v. Redmond, 75 Wn.2d 62, 65, 448 P.2d 938 (1968). That way the evidence is examined "by means sufficiently distinguishable to be purged of the primary taint" rather than a product of exploitation of the original illegality. Id. (). An in-court identification has an independent source when the court finds that the witness can identify the defendant in court by remembering the events of the crime itself without relying upon the tainted pretrial event. See State v. Coburn, 10 Wn. App. 298, 306-07, 518 P.2d 747 (1973).
Several factors are relevant in determining whether the testimony had an independent source, including:
{1} the witness's prior opportunity to observe the suspect, {2} the existence of any discrepancy between any preconfrontation description and the defendant's actual description, {3} any prior identification of another person, {4} any prior identification of the defendant by photograph, {5} failure to identify the defendant on a prior occasion, {6} the lapse of time between the alleged act and the identification, and {7} whether the witness previously knew the defendant.
State v. Smith, 36 Wn. App. 133, 138, 672 P.2d 759 (1983) (citing Wade, 388 U.S. at 241).
The State argues that the factors for reliability are not significant to this analysis. The trial judge recited on the record that he had considered the appropriate factors. RP at 969 (). And here, the trial judge reviewed the testimony of each witness at the pretrial hearing and identified an independent basis for the in-court identification. RP at 969. That is a decision then based on substantial evidence. See Redmond, 75 Wn.2d at 66.
Mr. Hunton next contends there was insufficient evidence to support the charges or convictions for three counts of second degree robbery because the State did not present evidence that he displayed a weapon or threatened the tellers. He also claims there is insufficient evidence identifying him as the robber. He argues that the court should have dismissed the robbery charges or reduced them to theft after the State presented its case in chief. Alternately, he challenges the sufficiency of the evidence to support his conviction.
A defendant may challenge the sufficiency of the evidence at several junctures: before trial, at the end of the State's case in chief, at the end of the evidence, after the verdict, and on appeal. State v. Jackson, 82 Wn. App. 594, 607-08, 918 P.2d 945 (1996). The evidence is reviewed using the most complete factual basis available at the point in time the sufficiency challenge is raised. Id. at 608-09.
Robbery requires the unlawful taking of `personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.' RCW 9A.56.190. The degree of force is not relevant, but the force or fear `must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.' Id.
It is not necessary for one to display a weapon or make overt threats to a bank teller. State v. Collinsworth, 90 Wn. App. 546, 553, 966 P.2d 905 (1997). Where a bank robber makes a `clear, concise, and unequivocal demand for money' and the seriousness of his intent is understood by the teller, the evidence is sufficient to support a bank robbery conviction. Id. Here, all three tellers expressed fear when the robber demanded the money. RP at 1025, 1355-57, 1508. This is sufficient evidence of a threat necessary for a robbery conviction. Mr. Hunton also claims that the...
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