State v. Mitake

• Decision Date: 12 November 1980
• Docket Number: No. 7358,7358
• Citation: 1 Haw.App. 335,619 P.2d 1078
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Yutaka MITAKE, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1078

619 P.2d 1078

1 Haw.App. 335

STATE of Hawaii, Plaintiff-Appellee, v. Yutaka MITAKE, Defendant-Appellant.

No. 7358.

Intermediate Court of Appeals of Hawai'i.

Nov. 12, 1980.

Dissenting Opinion Nov. 18, 1980.

Reconsideration Denied Dec. 3, 1980.

Certiorari Granted Dec. 24, 1980.

Syllabus by the Court

1. Where it is claimed that there has been an impermissibly suggestive pre-trial identification procedure, the reviewing court must pass upon whether the procedure was unnecessarily suggestive and, if so, whether the identification at trial was nevertheless reliable under the totality of the circumstances.

2. An appellant has the burden of showing that a pre-trial identification procedure was impermissibly suggestive and, in addition, that the identification made at trial was not reliable under the totality of the circumstances.

3. In this case, the appellant failed to show that the pre-trial identification procedure was impermissibly suggestive or that the identification at trial was not reliable under the totality of the circumstances.

4. The Hawaii Rules of Penal Procedure do not dictate any particular form for the handling of a motion to suppress identification on the grounds of an impermissibly suggestive pre-trial identification procedure but leave the matter to the sound discretion of the trial judge.

5. It is not a violation of a criminal defendant's constitutional rights under the Fifth and Sixth Amendments to the United States Constitution and the parallel provisions of the Hawaii State Constitution to deny examination of the identification witnesses to be called at trial during a pre-trial suppression hearing based upon a claim of impermissibly suggestive pre-trial identification proceedings where no showing has been made of any facts indicating impermissible suggestiveness nor of any facts indicating an inability of the appellant to obtain such facts without examining the witnesses at the hearing.

Richard Pollack, Deputy Public Defender, Honolulu, for defendant-appellant.

Christine Kurashige, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before PADGETT, Acting C. J., BURNS, J., and Circuit Judge ACOBA in Place of Chief Judge HAYASHI, disqualified.

PADGETT, Judge.

Appellant, after a jury trial, was convicted of the crime of Theft in the First Degree. He contends here that the identification made of him at trial by five witnesses was the result of constitutionally impermissibly suggestive lineup. He further contends that if it is held that he has not sufficiently shown that the identification arose out of an impermissibly suggestive lineup, that his failure to so show arises from the refusal of the trial court at the pre-trial identification suppression hearing to permit him to examine the five witnesses during that hearing; and that the refusal violated his constitutional rights to due process under the Fifth Amendment to the United States Constitution and to compulsory process under the Sixth Amendment to the United States Constitution and the equivalent provisions of the Constitution of the State of Hawaii. We affirm the judgment below.

On the morning of June 1, 1978, two men walked in to Zales jewelry store in the Pearlridge Mall Shopping complex and, using a hammer, smashed in a glass case containing diamonds. They scooped up the diamonds, fled the store through the Mall Building, across the parking lot, down a wall, across the watercress farm, across Kamehameha Highway and into an automobile in Shakey's Pizza Parlor parking lot on the makai side of that Highway. At trial, defendant was identified as one of the two thieves by two women working in the shop, one woman who was standing outside of the San Francisco Rag Shop next door as the thieves ran past, a man who was taking voter registrations at a booth in the Mall past whom the thieves ran and by an employee of Shakey's Pizza Parlor, where the thieves entered an automobile.

On June 23, 1978, prior to indictment, appellant appeared in a lineup along with four other oriental men with moustaches who were of similar size and height, all wearing aloha shirts. Appellant's counsel was present and indeed selected the other persons appearing in the lineup. The five witnesses were in a room together with appellant's counsel, who testified that no conversation took place between the witnesses. Appellant's counsel asked, but was not allowed, to question the witnesses prior to or after the lineup at the police station. He complained that of the five persons appearing in the lineup only appellant had acne. The two pictures taken of the persons in the lineup together appear in evidence as defendant's exhibit B.

Subsequently, appellant's counsel moved for an order suppressing and precluding for use as evidence at the trial, any identification of the defendant made by any witness on the grounds that "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." The Motion stated that it was made pursuant to Hawaii Rules of Penal Procedure (HRPP) 41(e) and 12 and was based on the record and files and the affidavit of counsel attached. The affidavit contained nothing that in any way supported the claim that there was a substantial likelihood of irreparable misidentification. Apparently, the term "photographic identification procedure" was a misnomer on the part of appellant's counsel since the June, 1978 identification proceeding was by a live lineup.

By stipulation, the motion for suppression was heard by the trial judge on the morning the trial was to commence. At the hearing, appellant's counsel called and examined both the attorney who had represented appellant at the lineup and the detective in charge of it. No evidence that the lineup was suggestive was adduced other than the attorney's contention that his client was the only one with acne. After these witnesses had been called, appellant's counsel sought to call the five identification witnesses and was asked by the court to make an offer of proof prior to doing so. The offer which he made stated no facts indicating that the lineup had been impermissibly suggestive. The court, after examining the pictures taken of the lineup, denied the request to call the five witnesses on the ground that nothing in the nature of suggestiveness had been shown. The trial then proceeded.

At trial, the prosecution did not allude in any form to the lineup identification on direct examination. Appellant's counsel, however, introduced the lineup photos and cross-examined about the lineup identification. During the cross-examination, the first witness, Cathy Cox, stated that appellant was the only person in the lineup who looked like the person she had seen at Pearlridge. Alida Canencia testified that appellant's face was what called her attention to him in the lineup. Lawrence Baker said the same thing. Linda Chang Wyrgatsh also testified that she immediately recognized appellant at the lineup. Mellinger said that he picked the appellant out in the line because he appeared to be someone he had seen before.

While all five of the witnesses positively identified appellant as one of the two men and all, based on the testimony, had a good opportunity to see him at the time of the incident, there were discrepancies in their testimony and the degree of positiveness of the identification varied among them. Common experience at trials indicates that such discrepancies are not unusual but, in fact, are to be expected. The jury convicted the appellant.

Where it is claimed that a criminal defendant's rights have been infringed because of an impermissibly suggestive pre-trial identification procedure, a two-fold question is raised: first, whether the procedure was unnecessarily suggestive; and second, whether, even so, the identification at trial was reliable under the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). We see nothing in the record before us that indicates either that the lineup was impermissibly suggestive or that in the totality of the circumstances, the identifications made at trial were not reliable or, stated differently, that there was a substantial likelihood of misidentification.

Appellant, in his briefs, suggests that the fact that he was the only person in the lineup with acne is of significance, but none of the witnesses at trial either on direct or on cross-examination about the lineup even mentioned the fact that the appellant had acne. As a matter of fact, appellant's counsel did not inquire on the subject. Appellant also urges that the fact that the witnesses were all present in the same room at the time of the lineup is fatal. We do not agree. According to appellant's own counsel's testimony, there was no conversation among the witnesses during the lineup and we fail to see how there could be a constitutionally impermissible lineup based upon the mere presence of the witnesses (without conversation) in the same room during the lineup. Practicality must enter in to matters of this nature and there obviously is nothing inherently wrong with the procedure followed here. The lineup therefore was not shown to be suggestive and, as appellant concedes, it is his burden to establish that fact.

Moreover, of the five witnesses who identified him at trial, those who were closer, with a better opportunity to observe at the time of theft, made more positive identifications. Those who were further away admitted some doubt and indeed the defense produced one witness who was at some distance who could not made the identification. There being no showing of a substantial likelihood of misidentification, the evidence was properly allowed to go to the jury. Neil v. Biggers, supra.

Appellant contends, however, that he had a constitutional right, under the Fifth and ...