State v. Lewis

• Decision Date: 19 December 1980
• Docket Number: Cr. N
• Citation: 300 N.W.2d 210
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Timothy Roger LEWIS, Defendant and Appellant. o. 702-B.
• Court: North Dakota Supreme Court

Page 210

300 N.W.2d 210

STATE of North Dakota, Plaintiff and Appellee, v. Timothy Roger LEWIS, Defendant and Appellant.

Cr. No. 702-B.

Supreme Court of North Dakota.

Dec. 19, 1980.

Thomas M. Tuntland, State's Atty., and James Johnson, Asst. State's Atty., Mandan, for plaintiff and appellee State of North Dakota.

Charles R. Isakson, Hazen, for defendant and appellant.

VANDE WALLE, Justice.

Timothy Roger Lewis appeals from a judgment of conviction following a trial by jury in the district court of Morton County. Lewis was convicted of robbery under N.D.C.C. Section 12.1-22-01(2), a Class B felony. We affirm.

On October 17, 1978, Donna Ennen, a restaurant employee, while sitting in her car in the restaurant parking lot counting her tip money, was robbed of that money. Three other employees, while leaving the restaurant, witnessed the robbery. These three witnesses testified that as they exited the east door and began walking into the parking lot they saw the defendant, as he was about halfway across the parking lot, running in a northerly direction toward Mrs. Ennen's car. The witnesses also testified that they observed the defendant lean into Mrs. Ennen's vehicle for a few moments, run back across the parking lot in a southerly direction, and enter a late-model brown and black Ford. The testimony revealed that these witnesses were standing 63 to 65 feet from Mrs. Ennen's car while they observed these activities.

Mrs. Ennen testified that as she was sitting in her car counting her money the car door was opened and she felt something being thrust into her ribs; that she looked up and saw the defendant, who asked if she had money and she handed him $12. He then asked if she had any more and she responded in the negative. She further testified that the defendant moved his face close to hers and said: "Kiss me like you love me and don't say anything," and that following this, the defendant left the scene in the Ford.

Soon after the incident, the victim and all three witnesses gave to the police general descriptions of the person they saw commit the robbery. Their descriptions were generally that the robber had been a medium-to-tall, slim black man with a beard and wearing dark clothing. All four stated that he had left the scene in the brown and black Ford, and one witness gave a partial license-plate number on the vehicle.

Later in the evening, after a description of the robber and the car he had fled in had been broadcast to members of the Mandan police department, Lieutenant Moldenhauer of the Mandan police department observed two black men walk from the direction of a vehicle which fit the witnesses' description toward and into a liquor store. Soon afterward, the defendant and a companion came out of the liquor store at which time Lieutenant Moldenhauer asked them for identification. The two men gave Moldenhauer some identification, and after one of the detectives investigating the robbery had arrived at the scene and talked with the two men, both men were taken to police headquarters where they were photographed and placed in custody.

On the same evening, Detective Anderson and Detective Bullinger of the Mandan police department, along with Special Agent Lennick of the Bureau of Criminal Investigation, assembled a photographic display to be shown to the victim and the three witnesses. The display consisted of seven colored photographs of black men. One of the photographs was of the defendant, one was of his companion at the time of his apprehension, and five were obtained from the Bismarck police department. Of the five obtained from the Bismarck police department, two were of the same subject.

Later that evening, Mrs. Ennen, the victim, and Mrs. Sayler, one of the three witnesses, were separately shown the photographic display at the Mandan police department. Mrs. Ennen picked the photograph of the defendant as the image of the man who robbed her. Mrs. Sayler was unable to state that any of the photographs depicted the man she saw in the parking lot earlier that day.

The following day, October 18, 1978, Mrs. Eckroth and Mrs. Ebel, the other two witnesses, were separately shown the photographic display. Mrs. Ebel, like the victim, identified the defendant. Mrs. Eckroth, like Mrs. Sayler, was not able to make an identification from the photographs.

Following the denial of a motion to suppress the pretrial and trial identification of the defendant by the witnesses, Lewis was tried and convicted.

Lewis raises two issues on this appeal:

1. Whether or not the photographic-display identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and, if so, whether or not any subsequent identification of the defendant had a basis independent therefrom which made the identification admissible at trial.

2. Whether or not the photographic display was a critical stage in the prosecution entitling the defendant to representation by counsel during such display.

I

The United States Supreme Court has addressed the issue of initial identification of a defendant by photograph and has established a standard by which this procedure could be measured in an effort to determine whether or not this method of identification has been "so unduly prejudicial as to fatally taint his conviction." Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247, 1252 (1968). The Court in Simmons first observed that, although there are hazards regarding this method of identification, the procedure is widely and effectively used for apprehending guilty persons while simultaneously sparing innocent persons from damage to their reputations by unnecessary arrest. 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253. The Supreme Court further observed that the possibility that this method may result in convictions based on misidentification is tempered by the fact that cross-examination at trial is available to the defendant to expose any inadequacies he believes existed in the procedure.

The standard spelled out by the Supreme Court to test the prejudicial potential of pretrial photo-identification is:

"... that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id.

Furthermore, this court has held that where a victim has had a chance to closely observe the defendant during the commission of the offense, has given a description to the police which fits the defendant, and has identified the defendant shortly after the crime, this may be sufficient to show that the victim's in-court identification of the defendant was not based on the pretrial viewing of him, but had a basis independent of that viewing. State v. McKay, 234 N.W.2d 853 (N.D.1975).

We first address the question of whether or not the photo-identification procedure at issue here passes the Simmons test.

In Simmons v. United States, supra, the case setting forth the standard under which we determine the adequacy of the photographic-display procedure used here, the Court spelled out several considerations regarding the totality of circumstances which we should review in arriving at our determination. 390 U.S. at 383, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

The first consideration deals with whether or not there was substantial vagueness and uncertainty in the original descriptions given by the witnesses to the police. In this case, the victim and the three witnesses gave generally the same descriptions of the man who committed the robbery. All claimed that he was a tall, slim black man with a full beard and wearing dark clothing. The victim and two of the witnesses gave the same description of the car in which the robber fled. While not containing vivid detail, these initial descriptions were not vague and uncertain. This court has determined that it is not necessary for a witness to give an exact, detailed description of an offender for identification purposes. State v. McKay, supra.

Another consideration is whether or not there exist substantial discrepancies between the initial description and the actual appearance of the defendant. This question is easily answered by the defendant's own contention that he was the only person portrayed in the photographic display who fit the general description given by the witnesses. Whether or not his contention is significant is discussed below; however, that contention does serve to point out that Lewis does not raise discrepancies between initial description and actual appearance as an issue.

A third point of consideration is whether or not, in a showing of photographs to the witnesses, the photograph of the defendant was used more than once or was in some way emphasized. This factor lies at the core of Lewis's contention that the display in this case was impermissibly suggestive. Lewis anchors his argument in United States v. Sanders, 479 F.2d 1193 (D.C.Cir. 1973). Lewis dwells on the fact that the photograph of the defendant in Sanders was one of only two among eight photographs which portrayed a man with facial hair and that the defendant's beard in that case looked much more like the one initially described by the witnesses earlier. He suggests that on this basis alone the conviction of the defendant in Sanders was overturned. He reasons that because his was the only photograph appearing in the photographic display at issue here which portrayed a person with facial hair but wearing no glasses, his conviction should likewise be reversed. However, it would appear that Lewis is misinterpreting the "totality of circumstances" standard as one which could be labeled the "totality of the photographs" standard. A review of the...