State v. Kysar

• Decision Date: 21 November 1989
• Docket Number: No. 17220,17220
• Parties: STATE of Idaho, Plaintiff-respondent, v. David Jon KYSAR, Defendant-appellant.
• Court: Idaho Supreme Court

Page 859

783 P.2d 859

116 Idaho 992

STATE of Idaho, Plaintiff-respondent, v. David Jon KYSAR, Defendant-appellant.

No. 17220.

Supreme Court of Idaho.

Nov. 21, 1989.

Radin & Webb, Idaho Falls, for defendant-appellant. John L. Radin argued.

Jim Jones, Atty. Gen., Boise, Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent. Michael A. Henderson argued.

BAKES, Chief Justice.

Defendant David Kysar entered a conditional plea of guilty to a charge of robbery pursuant to I.C.R. 11(a)(2), reserving the right to review certain adverse pretrial rulings. Kysar appeals the trial court's denial of separate motions to suppress evidence and to dismiss the information for failure to hold a speedy trial. Kysar also appeals his sentence. We affirm.

I SUPPRESSION OF EVIDENCE

First we address Kysar's appeal of the trial court's denial of his motion to suppress evidence. Kysar asserts that the police had no probable cause to arrest him, that the arrest and interrogation were illegal and that any evidence obtained from him should be suppressed. Kysar also argues that a "show up" conducted prior to the arrest was impermissibly suggestive and that any identification testimony and evidence stemming from it should be suppressed. Finally, Kysar challenges the use of all written and oral statements made by him after his arrest on the grounds that they were taken in violation of the Miranda rule, and that he did not voluntarily and knowingly make those statements.

A. Probable Cause

We first address Kysar's claim that the police had no probable cause to arrest him. A peace officer may make a warrantless arrest when a felony has been committed and "he has reasonable cause for believing the person arrested to have committed it." I.C. § 19-603. Reasonable or probable cause for an arrest exists where the officer possesses information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. State v. Alger, 100 Idaho 675, 603 P.2d 1009 (1979); State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct.App.1984). In evaluating a police officer's determination of probable cause in the field, a court must take into account "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949); State v. Alger, 100 Idaho 675, 677, 603 P.2d 1009, 1011 (1979); State v. Cook, 106 Idaho 209, 215, 677 P.2d 522, 528 (Ct.App.1984). In determining whether there is probable cause for an arrest, an officer is entitled to draw reasonable inferences from the available information in light of the knowledge that he has gained from his previous experience and training. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We conclude that the record contains sufficient evidence to support the trial court's finding that the police officers had reasonable cause to arrest the defendant. Shortly before 9:30 p.m. on February 4, 1987, two individuals wielding knives robbed a Pizza Hut restaurant in Idaho Falls. They took between $558 and $609. The robbers' faces were covered. Only three Pizza Hut employees were present, one of whom apparently was able to report the robbery while it was in progress. Officer Kevan Vanleuven responded to the report and arrived at the Pizza Hut within a minute after the robbers had fled the scene. Officer Vanleuven was told at the scene that the two robbers had fled northeast on foot in the direction of Hansen Avenue and climbed over a fence at the north end of the parking lot. Officer Vanleuven then radioed a hurried description of the robbers given by Bob Rudolph, one of the employees. The report provided the following details: two individuals on foot, both wearing Levi's and white tennis shoes, one wearing a green Army fatigue-type jacket with a U.S. Army patch on the front pocket, the other wearing a dark hooded jacket. Shortly after Officer Vanleuven radioed his report, the dispatcher radioed a citizen's report of persons running on Hansen Avenue, getting into a small yellow Honda, and speeding down Raymond Drive. (Hansen Avenue runs north from the Pizza Hut and comes to a finish at Raymond Drive after curving slightly to the east. The section of Raymond Drive which the car sped down curves southeast, finishing at Skyline Drive which runs north-south.)

Officer Brent Guymon heard the radio reports and drove west along Pancheri Drive toward the scene of the crime in order to close off a possible escape route (Skyline Drive). As he approached Skyline Drive, Officer Guymon spotted a small yellow "Honda looking" car (actually, a Ford Fiesta) with two persons inside. The car was turning quickly left (east) onto Pancheri Drive. His observation came 3 or 3 1/2 minutes after the initial robbery report. Officer Guymon testified that it would take between 2 and 3 minutes to drive from the Pizza Hut to the intersection at Pancheri Drive and Skyline Drive. After the small yellow car passed him, Officer Guymon turned around and followed, eventually ending up in an alleyway near a residence.

After coming to a stop in the alleyway, David Kysar and his twin brother Dale got out of the yellow Fiesta. Officer Guymon then detained them for an investigation. Both wore Levi's and white tennis shoes. Dale wore a green Army fatigue-type jacket with a U.S. Army patch on the pocket. David wore a black T-shirt with no sleeves. Sgt. James Codding, who backed up Officer Guymon, testified that it was very cold that night (February 4, 1987).

While Officer Guymon may have possessed sufficient information at that point to strongly suspect the Kysars' guilt, he did not arrest them until after they had been positively identified by two Pizza Hut employees in a "show up" conducted outside the apartment. Shortly after the detention began, Officer Vanleuven brought the employees, Rudolph and Dorae Burdick, to the scene. With their faces covered by jackets, the Kysars were placed within five or six feet of the eyewitnesses. Burdick identified Dale as being one robber, based on his green Army fatigue-type jacket. Rudolph said the suspects were of the same build as the robbers and that David tied the black shoelaces in his white tennis shoes the same unique way as the robber. Sgt. Codding then arrested the two Kysar brothers. Based upon this identification, which we find was not impermissibly suggestive (see discussion in Part I(B)), and the available information, including eyewitness reports at the Pizza Hut, the radio dispatch of the citizen's report, and Officer Guymon's observation from his car, we hold that the police had reasonable cause to arrest David Kysar.

B.

"Show Up"

Evidence of an out-of-court identification shall be suppressed only where, under the totality of the circumstances, the identification procedure was so impermissibly Kysar's primary complaint is that the "show up" identification was unreliable because it was conducted in a suggestive manner in two respects. First, Kysar claims that covering his head with a jacket was unnecessarily and impermissibly suggestive. However, as the trial court found, the "jacket was held so that the witnesses could not see [the Kysars'] faces but viewed their bodies and clothing from the shoulders down." As previously mentioned, the robbers' faces were covered while in the Pizza Hut. The police did not want the identification to be influenced by the Kysars' facial appearance. This covering up was not impermissibly suggestive.

[116 Idaho 995] suggestive as to give rise to a very substantial likelihood of mis-identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). "[R]eliability is the linchpin in determining the admissibility of identification testimony...." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). Factors to be considered in determining whether the identification is sufficiently reliable include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the identification; and (5) the length of time between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983); State v. Edwards, 109 Idaho 501, 708 P.2d 906 (Ct.App.1985).

Second, Kysar insists that he and his brother were handcuffed while the eyewitnesses were present so that they would resemble guilty criminals. However, police officers present testified that handcuffs were removed before the "show up." Testimony of Sgt. Codding, Officer Guymon, Officer Vanleuven and Detective Forrest differed with Kysar's version. For example, Sgt. Codding testified that he had the handcuffs removed because he "wanted to make it as natural as possible" even though Detective David Forrest said he wasn't really comfortable with the idea because of potential danger. In considering the testimony presented, the trial court as trier of fact did not find that the Kysars were handcuffed, but only that "a jacket was held so that the witnesses could not see their faces...." Unlike an appellate court, the trial court as trier of fact has a special opportunity to judge the credibility of witnesses who appear personally before it. It is widely accepted law that

[t]he triers of the facts may accept all of a witness' testimony, may reject it all, or may accept part and reject part, in accordance with the facts and circumstances bearing on the credibility of the witness.

98 C.J.S. Witnesses § 458 (1957); see Rasmussen v....