State v. Johnson, 2659--I

• Decision Date: 04 November 1974
• Docket Number: No. 2659--I,2659--I
• Citation: 12 Wn.App. 40,527 P.2d 1324
• Parties: STATE of Washington, Respondent, v. Joseph Liberty JOHNSON, Appellant.
• Court: Washington Court of Appeals

Page 40

12 Wn.App. 40

527 P.2d 1324

STATE of Washington, Respondent, v. Joseph Liberty JOHNSON, Appellant.

No. 2659--I.

Court of Appeals of Washington, Division 1.

Nov. 4, 1974.

Rehearing Denied Dec. 2, 1974.

Review Denied Jan. 22, 1975.

Daniel C. Wershow, Phillip H. Ginsberg, Seattle-King County Public Defender (Court-appointed), Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Richard McDermott, Roger A. Myklebust, Deputy Pros. Attys., Seattle, for respondent.

CALLOW, Judge.

The defendant, Joseph L. Johnson, was charged with robbery while armed with a deadly weapon.

Following a trial to the court, the following findings and conclusions were entered:

I

That on 15th April 1973, at approximately 8 p.m. (the victim) . .. picked up the defendant, Joseph Liberty Johnson, in the area of 14th and Fir in Seattle, Washington.

II

That the defendant, Joseph Liberty Johnson, at the time that he was picked up by (the victim) . . . was attired in feminine attire, including a purple pantsuit and high heeled boots.

III

That (the victim) . . . had picked up the defendant to negotiate an act of prostitution. (The victim) . . . was then directed by the defendant to proceed to an alley located between 26th and 27th Avenues, just north of Cherry, in Seattle, Washington.

IV

That upon arriving in this alley, both (the victim) . . . and the defendant departed from (the victim's) . . . car and proceeded in the direction of an apartment that the defendant had indicated was his.

V

That as they proceeded down the alley, the defendant asked (the victim) . . . if he were a cop and asked him to produce his wallet to prove that he was not.

VI

That (the victim) . . . presented his wallet to the defendant, who after inspecting the wallet, handed it back to (the victim) . . .

VII

That as (the victim) . . . proceeded to replace his wallet in his pocket the defendant pulled a pistol and pointed it at (the victim). . . demanding that he give him the money which was in his wallet.

VIII

That (the victim) . . . at this time was placed in fear of injury to his person and as a result of this fear, against his will did then and there give to the defendant,

Mr. Johnson, the cash that he had in his wallet, approximately $137.00 in American currency.

IX

That the defendant then ran from the alley and disappeared from the view of the victim, . . .

X

That on the 8th day of May, 1973, the victim, . . . was shown a series of seven photographs by Detective Oslin of the Juvenile Division of the Seattle Police Department.

XI

That (the victim) . . . from the series of photographs showed to him in the Juvenile Division, selected the photograph of the defendant, Joseph Liberty Johnson, as the individual who had robbed him on the 15th day of April, 1973.

XII

That Detective Oslin did not in any way suggest to the victim, . . . that he should select the photo of Joseph Liberty Johnson.

XIII

That the testimony of the defendant, Joseph Liberty Johnson, that on the date of the crime he was home in his apartment, is not accepted as a statement of truth.

XIV

That the notes introduced by the defendant to substantiate his alibi in the trial of this matter do not in fact provide any substantiation to his alibi.

XV

That the defendant, at the time he committed the robbery, as alleged in the information, was armed with a deadly weapon as defined by RCW 9.95.040, and a firearm as defined by RCW 9.41.025.

CONCLUSIONS OF LAW

I

That the above-entitled court has jurisdiction of the subject matter and of the defendant, Joseph Liberty Johnson, in the above-entitled cause.

II

That the defendant, Joseph Liberty Johnson, is guilty of the crime of robbery.

III

That the defendant, Joseph Liberty Johnson, at the time of commission of the robbery was armed with a deadly weapon as defined by RCW 9.95.040 and a firearm pursuant to RCW 9.41.025.

The defendant challenges the sufficiency of the evidence to sustain his conviction and the special finding that he was armed with a deadly weapon.

The main contention raised is that there was insufficient evidence of identity for the trier of the fact to conclude that the defendant was the robber. The defendant disputes the ability of the victim to make a positive identification 23 days after the robbery when the victim had spent only 25 minutes with his assailant, had faced him for not more than 5 minutes, and the lighting was poor at the time. The defendant also points out that he wears either a ring or an ornament in his nose, and the victim did not recall his assailant wearing any such ornament. In addition, the defendant argues that the trial court's statement in its oral opinion showed uncertainty; and, therefore, an acquittal should have been granted. ¹

It was recently said in State v. Hill, 83 Wash.2d 558, 560, 520 P.2d 618, 619 (1974):

It is axiomatic in criminal trials that the prosecution bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense. 1 H. Underhill, Criminal Evidence § 125 (5th ed. P. Herrick 1956, Supp.1970); 1 Wharton's Criminal Evidence § 16 (13th ed. C. Torcia 1972). Identity involves a question or fact for the jury and any relevant fact, either direct or circumstantial, which would convince or tend to convince a person of ordinary judgment, in carrying on his everyday affairs, of the identity of a person should be received and evaluated. 1 H. Underhill, Criminal Evidence, Supra.

The evaluation of this evidence is for the trier of the fact and evidence of identity should not be weighed again on appeal to determine if the state has proven beyond a reasonable doubt that the defendant was the person who committed the offense. The judge or jury see and hear the witnesses and are in the best position to determine credibility and the ability of each witness to observe and recall. The trier of the fact must decide if the victim could see the assailant under the prevailing conditions and whether the stress of the situation blurred the victim's faculties or imprinted sights and faces clearly and indelibly on the victim's mind. The eye witness identification of one person by another may give rise to many possibilities for human mistake. Indeed, the dangers present are noted in the District of Columbia model instruction on identification set forth in the appendix to United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558 (1972). ² See also United States v. Holley, 502 F.2d 273 (4th Cir. 1974); United States v. Barber, 442 F.2d 517 (3d Cir. 1971). However, the evidence is admissible; and if confusion or misidentification exists, its exposure is a function of the defense. The testing of the identification of another by face, voice, statute, clothing or other things peculiar to the person's appearance must be by examination and cross-examination in the forum of the trial court. See United States v. Sears, 332 F.2d 199 (7th Cir. 1964); 2 J. Wigmore, Evidence §§ 413, 660 (1940); 3 B. Jones, Evidence § 15:6 (S. Gard 6th ed. 1972).

The function of an appellate court is only to assess that there was substantial evidence from which the trier of fact could infer that the burden of proof had been met and that the defendant was the one who perpetrated the crime. We find in State v. James, 165 Wash. 120, 122, 4 P.2d 879 (1931):

The only question presented upon the appeal is whether the evidence was sufficient to connect the appellant with the robbery. The jury heard the testimony as to the positive identification, and heard the witnesses say that, on the two prior occasions, they had not been positive, and it was for them to determine whether they would accept the positive identification testimony, or disregard it. This court cannot weigh the testimony and hold that the jury had no right to believe and accept the evidence of positive identification.

and State v. Huston, 71 Wash.2d 226, 238, 428 P.2d 547, 554 (1967), said: ³

Despite the problems which always inhere in identification by an eye witness who is under the pressure of an act of criminal violence at the time he makes his initial observations, this record reveals far more than a 'scintilla' of evidence to support the identification. It is sufficient to say that the evidence was substantial and admissible; its weight was for the jury to determine. State v. Mickens, 61 Wash.2d 83, 377 P.2d 240 (1962).

The review of the sufficiency of the evidence to support the decision of the judge or jury is limited to a determination of whether the state produced substantial evidence of circumstances from which the facts to be proved could reasonably be inferred. The conclusion of the trier of the fact must stand if the record contains substantial evidence of each element of the crime charged. State v. Randecker, 79 Wash.2d 512, 487 P.2d 1295 (1971); State v. Dugger, 75 Wash.2d 689, 453 P.2d 655 (1969); State v. Braxton, 10 Wash.App. 1, 516 P.2d 771 (1973). The identification of the defendant by the victim is substantial evidence that the defendant was the person who committed the crime. See State v. Lane, 4 Wash.App. 745, 484 P.2d 432 (1971).

The concern expressed by the trial judge about the identification does not derogate from the certainty of his finding but reinforces its validity. His expressions instead mirror conscientious meditation of the evidence. The thoughts and ruminations of a trial judge in an oral opinion are submerged into the formal findings ultimately entered. Ferree v. Doric Co.,62 Wash.2d 561, 383 P.2d 900 (1963); Diel v. Beekman, 7 Wash.App. 139, 499 P.2d 37 (1972).

In like manner, substantial evidence supported the special finding that the defendant was armed with a deadly weapon. The victim testified that a short barreled, snub-nosed gun was taken from the purse of the robber. The victim also described the gun as silver in color, resembling a .38 caliber and as being pointed directly at him...