State v. Lane, s. 381--
| Decision Date | 19 April 1971 |
| Docket Number | Nos. 381--,840--I,s. 381-- |
| Citation | 484 P.2d 432,4 Wn.App. 745 |
| Parties | STATE of Washington, Respondent, v. Jimmy Otis LANE, Appellant. STATE of Washington, Respondent, v. Claudell EDWARDS, Appellant. |
| Court | Washington Court of Appeals |
Larry L. Barokas, Seattle, Court-appointed, for appellant Jimmy Otis lane.
Edwin S. Stone, Seattle, Court-appointed, for appellant Claudell edwards.
Christopher T. Bayley, King County Pros. Atty., Gerald M. Lorentson, Deputy Pros. Atty., Seattle, for respondent.
Claudell Edwards and Jimmy Otis Lane were charged with two counts of robbery and one count of rape and convicted on each of the three counts. Both defendants appeal their convictions. They had been previously charged with robbery, assault, and rape but that jury was unable to agree upon a verdict.
Lane and Edwards challenge the court's failure to give the jury certain instructions relating to eyewitness identification and its failure to declare a mistrial following an alleged improper comment of the prosecution in rebuttal argument. Edwards challenges the sufficiency of the evidence for his convictions and urges improper line-up and photographic procedures were used to identify him on the second count of robbery. Lane challenges the line-up and photographic procedures used to identify him in the first count of robbery and urges the court erred in its ruling admitting alleged hearsay testimony in commenting on the evidence and in unduly limiting cross-examination. We find the assignments without merit.
On Sunday, April 20, 1969, both Lane and Edwards allegedly entered a cardroom in downtown Seattle with two other accomplices. They ordered everyone to give them money and a woman, who worked on the premises, testified she was taken to a secluded portion of the premises and raped by both Lane and Edwards.
On April 27, Denny's Restaurant on Aurora Avenue was allegedly robbed by Lane and Edwards, who were later identified by two eyewitnesses to the robbery.
An assignment of error common to both appeals is the court's failure to give the jury instructions proposed by the defendants which expanded the concepts necessary for adequate eyewitness identification. 1 It is urged by appellants that these instructions would have allowed them to argue their theory of the case involving reasonable doubt, the certainty of identification, and factors to be considered in evaluating the credibility of the testimony of eyewitnesses. A defendant should be entitled to argue his theory of the case based upon instructions given by the court; however, he is not entitled to put his argument in the court's instructions. State v. Dana, 73 Wash.2d 533, 439 P.2d 403 (1968); State v. Hayes, 3 Wash.App. 544, 475 P.2d 885 (1970). In determining whether the instructions furnish a framework from which a party's theory of the case may be augued, the instructions are to be read and understood as a whole. State v. Jamerson, 74 Wash.2d 146, 443 P.2d 654 (1968); State v. Jackson, 1 Wash.App. 90, 459 P.2d 414 (1969).
The court instructed the jury they were entitled to consider, among other things, the reasonableness or unreasonableness of the story the witnesses related and any fact or circumstance which appealed to their judgment as in anywise affecting the credibility of such witness. These instructions, combined with the court's instructions requiring the jury to find the appellants were present when each crime was committed, gave counsel for both Lane and Edwards the latitude to argue the specific theories they urged in their proposed instructions.
Another common claim of error relates to a comment by the prosecuting attorney during closing argument. He stated, 'You can also be sure if any of the witnesses in identification had positively stated that these people were not the ones that the defense would have had them in with their own subpoenas which they have a right to do.' They contend that inasmuch as no discovery was allowed in the case, there was no way either of the appellants could have known which witnesses did or did not identify them. The request to instruct that appellants did not have knowledge of who was present in the cardroom during the robbery was refused. The rebuttal argument of the prosecutor did not exceed those points raised in the closing argument by appellants' counsel. The argument was made by both Lane and Edwards that the prosecutor tried either intentionally or inadvertently to keep evidence from the jury. There is no showing that any motion for discovery was made following the first trial, and in the first trial appellants both had an ample opportunity to develop leads which could have produced additional witnesses. The scope of closing argument is a matter for the exercise of discretion by the trial court and improper argument by counsel in response to that of another may not be assigned as error. Cranford v. O'Shea, 75 Wash. 33, 134 P. 486 (1913)9
Lane complains of the preline-up procedures used to identify him in the cardroom robbery and the Denny's Restaurant robbery. Edwards complains of the preline-up procedures used to identify him in the restaurant robbery.
The problem posed for the courts is to find the acceptable balance between an ideal photographic identification technique on one hand and an impermissibly suggestive one on the other. Elements of an ideal technique involve presentation of a series of photographs whose arrangement and display in no way suggest which of the pictures is that of the suspect and with sufficient number of different pictures to make a fair test of the witness's ability to make identification. The photographic identification should only be used if the defendant is not available for actual viewing in a properly conducted line-up. If more than one witness is to make identification of the pictures, they should not be allowed to view the pictures in each other's presence. P. Wall, Eye-Witness Identification in Criminal Cases 66--85 (1965).
The validity of the identification procedure is a question of fact for the jury's determination and appellate courts may reverse a determination of the identification issue adverse to the defendant only where the facts establish '(t)he photographic identification procedure * * * (is) so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); State v. Gefeller, 76 Wash.2d 449, 458 P.2d 17 (1969). To suggest is 'to put * * * into the mind:' or 'to seek to influence the mind * * *' Merriam-Webster Third New Int'l Dictionary (1969).
Simmons recognized the inherent hazards of misidentification where photographs are used, but concluded cross-examination exposed the weakness in the process and lessened the danger of convictions based upon misidentification. The court noted circumstances vary so much that each case must be examined on its own facts.
Although the procedures used by the police in this case cannot be said, from the state of the record, to have affirmatively followed all the elements of an ideal technique, they nonetheless appear to strike an acceptable balance between ideal technique on one hand and impermissibly suggestive procedures on the other.
All the witnesses were shown a series of pictures. In some cases, potential witnesses were shown over 100 pictures. Some of the witnesses who identified Lane from his picture as a participant in the cardroom robbery, did so at a time when he was not in custody. Whether Lane was in custody at the time other witnesses initially identified him from his pictures is not clear. The statement of facts also fails to show with clarity whether some of the witnesses who identified Lane's picture did so when other witnesses were present, in a manner that would indicate what their choice had been. It likewise does not reveal whether these witnesses were able to see previous witnesses' initials on photographs they had identified. No witness testified he was influenced by the action of any previous witnesses and there is nothing in the record to compel such an inference.
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