State v. Morris

• Decision Date: 26 September 1989
• Docket Number: No. 17747,17747
• Citation: 116 Idaho 834,780 P.2d 156
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Douglas W. MORRIS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 156

780 P.2d 156

116 Idaho 834

STATE of Idaho, Plaintiff-Respondent, v. Douglas W. MORRIS, Defendant-Appellant.

No. 17747.

Court of Appeals of Idaho.

Sept. 26, 1989.

Terry S. Ratliff, Mountain Home, for defendant-appellant.

Jim Jones, Atty. Gen., Jack B. Haycock (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

This is an appeal by Douglas W. Morris from his conviction for robbery, I.C. § 18-6501, following a jury trial. The sole issue on appeal concerns the victim's in-court identification of Morris as the robber, when, prior to trial, the victim had identified Morris from his pictures in a series of photographic lineups. We affirm.

Morris was charged with the April 7, 1988, robbery of the Foothills Motor Inn in Elmore County. The victim, a clerk on duty at the motel, testified that a man entered the motel office at about 3:50 a.m. and demanded money. The clerk gave him $132 and the robber fled. The clerk immediately called the police. Police arrived at the motel and began searching the area. The clerk told the officers that the robber was wearing an orange stocking cap and a blue-gray jacket. One officer left the motel to conduct a search of the area and a short distance down the highway found an orange stocking cap in the road. He turned onto another road and found a blue-gray jacket on the side of the road. The officer picked up these items and returned to the motel, where the clerk recognized the items as similar to those worn by the robber. Later, Morris' fingerprint was found on a pair of sunglasses in the jacket pocket. During the same search of the area, the officers also found a maroon GMC Sprint vehicle. The vehicle was unoccupied but its engine compartment was still warm from recently being driven. Evidently, the vehicle had transmission problems. Some loose currency in denominations like those taken in the robbery was found in and near the vehicle. Upon a records check, the police found that the vehicle was registered to Douglas Morris.

Officers showed the clerk three different photo lineups over the next few days. The first lineup was about five hours after the robbery, the second was the following day, and the third was four days after the robbery. The lineups consisted of six photographs of different individuals each time (a total of eighteen photographs), except that each of the three sets contained one photograph of Morris; however, different photographs of Morris were used in each lineup. Although the clerk had described the robber as clean-shaven, the only photos of Morris available for the first two photo lineups showed Morris with a mustache. Similarly, all other individuals in those two lineups wore mustaches. The clerk picked Morris' photo in each of those lineups; however, she was not "100 percent certain" because the robber did not have a mustache. The third lineup was composed of photos of men without mustaches, including one recently taken of Morris. The clerk selected the photo of Morris from that lineup without hesitation. There is no indication in the record that the source of Morris' photos was ever disclosed to the victim of the robbery. ¹

During trial, the clerk made an in-court identification of Morris as the robber. The jury found Morris guilty of the robbery. After he was sentenced to prison, he filed this appeal.

The sole issue for determination in this appeal is whether the photographic lineups presented to the motel clerk improperly prejudiced and influenced the clerk's ability to identify Morris as the robber. ² Before discussing this issue on its merits, we are faced with the threshold inquiry whether the issue is reviewable on appeal because no motion to suppress or objection to the evidence was made at the trial level. Ordinarily, the failure to move to suppress evidence prior to trial pursuant to I.C.R. 12(b)(3) and the failure to object to its admission would prevent us from addressing the issue on appeal. State v. Kay, 108 Idaho 661, 701 P.2d 281 (Ct.App.1985). However, where a fundamental error has been committed in a criminal trial, this court may consider it even though no objection was made before the trial court. Id. "Fundamental error" is one which so profoundly distorts the trial that it produces manifest injustice and deprives the accused of his constitutional right to due process. State v. Koch, 115 Idaho 176, 765 P.2d 687 (Ct.App.1988). In State v. Kay, supra, we decided to examine the lineup procedure used in that prosecution to determine whether fundamental error had occurred, even though the trial court was never presented with a timely motion or objection which could have given that court the opportunity to avoid unfairness to the defendant at trial. Accord, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). We likewise will entertain the issue in this case.

We recently stated the standard for examining the nexus between a pretrial lineup procedure and a later, in-court identification of an accused. We said:

Generally speaking, due process requires the suppression of an eyewitness identification obtained as a result of confrontations "so unnecessarily suggestive" that they are "conducive to irreparable mistaken identification." Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380, 34 L.Ed.2d 401 (1972) (quoting Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18...