State v. Jordan
| Decision Date | 11 January 1985 |
| Docket Number | No. 13359-4-I,13359-4-I |
| Citation | 39 Wn.App. 530,694 P.2d 47 |
| Parties | STATE of Washington, Respondent, v. Leland Alfred JORDAN, Appellant. |
| Court | Washington Court of Appeals |
Raymond H. Thoenig, James E. Lobsenz, Washington Appellate Defender Ass'n, Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., Katherine B. Wilcox, Deputy Pros. Atty., Seattle, for respondent.
Leland A. Jordan appeals his conviction for one count of attempted robbery in the first degree and three counts of robbery in the first degree, all while armed with a deadly weapon that was also a firearm. He alleges that the trial court erred (1) in failing to suppress witness identifications made of him at a pretrial lineup, (2) in excluding evidence concerning two counts of first degree robbery that were dismissed before trial, (3) in excluding the testimony of a defense expert witness, (4) in refusing to allow him to represent himself, and (5) in refusing
to suppress a gun found during a search of his car.
A rash of armed robberies occurred in Seattle in early July 1982. On July 3, at approximately 10 p.m., someone attempted to rob James Bernier when he stopped to use a cash machine. A few hours later, on July 4, someone robbed Jeffrey Carlson, Lori Steele and Mark Francis at the same cash machine. On the next day, July 5, Lloyd Dineen was robbed while working at a gas station. On July 7, at about 8 p.m., a Kentucky Fried Chicken restaurant was robbed. On the evening of July 13, another Kentucky Fried Chicken restaurant in Seattle was robbed.
On July 14, 1982, Seattle Police Department Officers Su and Kossian received a radio broadcast stating that two black men and one white woman, driving a 1972 beige and brown Cadillac, Washington license plate number IFJ 013, were wanted regarding the theft of a wallet that had occurred minutes earlier. The officers spotted and stopped the car. Jordan was driving, Lori Wiseman was in the front seat, and Donald Hunter was in the back seat. As Officer Kossian approached the car, he noticed Hunter remove his hands quickly from underneath a blue tote bag on the floor. All three occupants were removed from the car and Hunter and Jordan were handcuffed. Officer Kossian searched the passenger compartment of the car and found the stolen wallet under the blue tote bag, a knife, three purses, and a distinctive silver pistol, which was later identified by a number of witnesses at trial as being very similar to the one used in the rash of robberies.
When arrested on July 14, 1982, Jordan was not yet a suspect in the armed robberies; he was eventually released. A warrant for Jordan's arrest was issued on August 3, 1982, however, and he was arrested in Spokane on August 4, 1982.
A pretrial lineup was held on August 16, 1982. Nine witnesses from the five robberies attended the lineup. Four identified Jordan: Bernier, Carlson, Dineen and Vanetta Jordan moved to suppress the lineup identifications and any subsequent in-court identifications made by lineup witnesses. Hearings were held on November 19 and 22, 1982. Janet Ainsworth, a staff attorney with Seattle-King County Public Defender, testified that she had been assigned to cover lineups conducted by the Seattle Police Department on August 16, 1982. She testified that her responsibilities included listening to the instructions given to the witnesses, examining the people selected to participate in the lineup, comparing the suspect with the other participants selected, making suggestions to enhance the fairness of the lineup procedure, and objecting to suggestive procedures. She testified that she had not been allowed to cover the witness preparation stage of the lineup held that day. On cross examination, she testified that the witness preparation stage had taken about 10 minutes and that she had observed the rest of the lineup procedure and did not recall anything objectionably suggestive.
Willis, an employee of the Kentucky Fried Chicken restaurant robbed on July 7.
Sergeant Charles Scheuffele testified that he had conducted the lineup on August 16, 1982. He testified that he had excluded an attorney from the witness preparation stage of the lineup procedure and that this was his normal practice. When asked why he normally excluded attorneys, he answered, "No particular reason." Sergeant Scheuffele testified that on August 16, 1982, he read standard instructions to the witnesses from a written form and made these additional comments:
I told the witnesses in this case that they would not be criticized if they did not make a pick; that we would not send the wrong man to jail if they inadvertently picked the wrong man, that this was not the only evidence in the case, but that I wished for them to do the very best they could. That it was an important matter. And that was the additional instruction I gave them.
Vanetta Willis also testified. She testified that Sergeant Scheuffele had told the witnesses that "he wouldn't actually [I]t wouldn't--if he would have said that it would bring the punishment upon somebody, that I don't think I would have picked anyone. It was what--was so hard to pick, because I didn't know whether I should pick or not because it looked a lot like him, but I just--I wouldn't have picked him anyway.
send anyone to jail if you did pick anybody if you weren't sure whether to pick him or not." She also testified that
* * *
I picked because I thought I had to pick somebody.
On cross examination, Ms. Willis testified that she had talked with two other witnesses who had not chosen anyone at the lineup and that these discussions had cast doubt on whether she had picked the right person. At one point, she testified that she had felt she had to choose someone, and, later in her testimony, she stated that she had not been pressured. She testified:
I don't know. I just felt that I had to make a pick. I understood that you didn't have to pick at all, but I felt that I had to pick because there was something--there was something about him that really--that really looked a lot like him and I guess I just went on and picked him.
The court denied the motion to suppress, stating that it had not heard persuasive evidence of any reasonable probability that the procedures improperly suggested the identification of Jordan. The court stated that Ms. Willis' testimony could be construed in a couple of different ways, but that it felt that the sum of it was that she knew that she did not have to pick anyone but felt drawn to select Jordan because he looked most like the person who had robbed her.
On March 29, 1983, defense counsel moved in limine to suppress the gun that had been seized in the warrantless search of Jordan's car. This motion was denied.
On April 4, 1983, defense counsel moved in limine to admit expert testimony from Dr. Elizabeth Loftus, a professor of psychology at the University of Washington. The court asked defense counsel whether Dr. Loftus would testify Also on April 4, 1983, the State moved in limine to exclude any mention of the fact that two counts of robbery in the first degree against Jordan had been dismissed without prejudice by the State. Jordan argued that the evidence was relevant because five witnesses to the pretrial lineup had misidentified him as committing the two robberies. The court granted the motion to exclude the evidence.
in general terms regarding the reliability of eyewitness identifications or with particularity concerning any of the State's witnesses. Defense counsel stated that her testimony would be in general terms. The court denied the motion
Soon after the State initially filed charges against him, Jordan requested and received appointed counsel for his defense. On September 22, 1982, however, Jordan requested and received an order permitting him to represent himself, with his appointed counsel acting only as legal advisor. Jordan represented himself with a legal advisor at the pretrial hearings on November 19, 1982 and November 22, 1982. On December 20, 1982 and December 22, 1982, upon Jordan's request, orders were entered allowing Jordan's legal advisor to withdraw and substituting new appointed counsel. Jordan's new appointed counsel represented him at the pretrial hearings on March 29, 1983 and April 4, 1983. Jury selection took place on the afternoon of April 4, 1983 and the morning of April 5, 1983 and the first witness for the State was called on the afternoon of April 5, 1983. On the morning of April 6, 1983, Jordan requested to be allowed to represent himself. This request was denied.
In regard to the attempted robbery on July 3, 1982, James Bernier identified Jordan at trial and testified that he had identified Jordan at the pretrial lineup.
In regard to the July 4, 1982 robbery, Jeffrey Carlson identified Jordan at trial and testified that he had identified him at the pretrial lineup. Lori Steele and Mark Francis also identified Jordan at trial and testified that they had identified him before trial from a photograph of the lineup.
In regard to the July 5, 1982 robbery, Lloyd Dineen In regard to the July 7, 1982 robbery, Vanetta Willis identified Jordan at trial and testified that she had identified him at the lineup. Cecilia Phelan, a manager of the Kentucky Fried Chicken restaurant, testified that she had identified Jordan from a photographic montage before trial, but could not identify him at trial.
identified Jordan at trial and testified that he had identified Jordan at the pretrial lineup.
In regard to the July 13, 1982 robbery, four witnesses testified. Two witnesses positively identified Jordan, one witness tentatively identified him and one witness could not make an identification.
The jury found Jordan guilty of the attempted robbery and all of the other robberies, except the robbery committed on July 7, 1982.
Jordan contends that ...
To continue reading
Request your trial
-
State v. Goodman
...we must consider whether Ringer should be applied retroactively. We are persuaded by Division One's analysis in State v. Jordan, 39 Wash.App. 530, 694 P.2d 47 (1985), and conclude that it should not. In Jordan, the Court concluded that Ringer's abrupt shift from reliance on federal preceden......
-
State v. Jackson
...App. 564, 578, 157 P.3d 406 (2007) (quoting State v. Eaton, 30 Wn. App. 288, 293 n.7, 633 P.2d 921 (1981)): accord State v. Jordan, 39 Wn. App. 530, 539-40, 694 P.2d 47 (1985). A party cannot change theories of admissibility on appeal. State v. Mak, 105 Wn.2d 692, 718-19, 718 P.2d 407 (1986......
-
State v. Coe
...to be within the discretion of the trial court. State v. Guloy, 104 Wash.2d 412, 430, 705 P.2d 1182 (1985); State v. Jordan, 39 Wash.App. 530, 542, 694 P.2d 47 (1985); State v. Barry, 25 Wash.App. 751, 760-61, 611 P.2d 1262 (1980); State v. Brown, 17 Wash.App. 587, 596-97, 564 P.2d 342 The ......
-
State v. Kendrick, 17732-O-I
...to preserve appellate review based on ER 404(b). State v. Fredrick, 45 Wash.App. 916, 923, 729 P.2d 56 (1986); State v. Jordan, 39 Wash.App. 530, 539, 694 P.2d 47 (1985), cert. den'd, --- U.S. ----, 107 S.Ct. 895, 93 L.Ed.2d 847 (1987). Therefore, we reach only the ER 401 The trial court di......