State v. Nelson, 970163-CA

• Court: Court of Appeals of Utah
• Writing for the Court: WILKINS
• Citation: 950 P.2d 940
• Parties: STATE of Utah, Plaintiff and Appellee, v. Diane Marie NELSON, Defendant and Appellant.
• Docket Number: No. 970163-CA,970163-CA
• Decision Date: 26 December 1997

Page 940

950 P.2d 940 STATE of Utah, Plaintiff and Appellee,
v.
Diane Marie NELSON, Defendant and Appellant. No. 970163-CA. Court of Appeals of Utah. Dec. 26, 1997.

Page 941

Rebecca C. Hyde and Richard P. Mauro, Salt Lake City, for Defendant and Appellant.

Jan Graham and Marian Decker, Salt Lake City, for Plaintiff and Appellee.

Before WILKINS, Associate P.J., and BENCH and GREENWOOD, JJ.

OPINION

WILKINS, Associate Presiding Judge:

Defendant Diane Marie Nelson appeals her conviction for aggravated robbery, a first degree felony in violation of Utah Code Ann. § 76-6-302 (1995). Specifically, defendant challenges the trial court's denial of her motion to suppress eyewitness identification and argues the evidence is insufficient to support the charge of aggravated robbery. We vacate the conviction and remand for a new trial.

BACKGROUND

On July 1, 1996, at approximately 10:00 p.m., Amy Brown parked her truck in the vicinity of 300 West and 300 South in Salt Lake City. Brown stated that, at the time, "it was pretty dark outside," but there were some scattered street lights in the area. While walking to her apartment a "few feet" away, Brown passed a woman and two men standing by a dumpster on the southeast corner of her apartment complex. When Brown came within five to six feet of the threesome, the woman commented on Brown's shoes, stating, "nice shoes" and "I like your shoes." Brown ignored her and kept walking. As Brown passed them, she looked out of the corner of her eye and heard the woman say, "I want those shoes." Brown continued walking, ignoring them. Then in a more demanding tone, the woman said, "Get them for me." One of the men then pulled a knife from behind his back, pointed it at Brown, and said, "Give her the shoes." Because she was so frightened, Brown ran towards her apartment and did not look back. The man followed for some distance and then ran off towards Pioneer Park. When Brown reached her apartment, she ran in and called 911.

About fifteen to twenty minutes later, police arrived at Brown's apartment. Brown could not calm down and was, as she described, "very hysterical." Brown described the incident to the officers, stating that the entire incident lasted about thirty seconds. Although Brown said that she paid more attention to the men than to the woman, she described the woman as "black," with curly black hair, standing about five feet six inches tall, "nicely dressed ... not wearing shorts or anything like that," but wearing pants and a shirt. Brown provided no other information.

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Based only on that description, the police left to search the area. About ten to twenty minutes later, the police returned and asked Brown to identify a woman, defendant. Defendant is African-American, with black curly hair, and is five feet two inches tall.

Police presented defendant to Brown for identification a few feet outside of Brown's apartment. Defendant was the only woman presented for identification. She was handcuffed, surrounded by police, placed next to a patrol car, and her face illuminated by a flashlight. Upon seeing defendant, Brown became very "hysterical." Brown, who is Caucasian, identified defendant as the woman by the dumpster. As defendant was taken to jail, defendant stated, "I didn't do anything. I didn't do anything. Maybe Cody or Brad did something, but I didn't do anything."

Before trial, defendant filed a motion to suppress the eyewitness identification as unreliable under both the Utah and Federal Constitutions. At the suppression hearing, defendant was prepared to proffer expert testimony regarding the reliability of eyewitness identification. The expert was prepared to testify regarding factors affecting the three stages of identification: acquisition, retention, and recall. Defendant intended to show that under the circumstances of this case--Brown's stress, the fast-moving, thirty-second encounter in which Brown admittedly "ignored" the woman by the dumpster, her admitted focus on the man with the weapon, the lack of lighting, and the problems associated with cross-racial identification--Brown's acquisition of the information was questionable. Further, defendant argued, because of the weak acquisition of information, Brown's memory could have been easily influenced by suggestion, which would lead to misidentification. The trial court stated that the eyewitness identification was a jury issue of "reliability" and therefore denied the motion. Defendant again requested the trial court consider the evidence proffered by the expert, but the trial court stated that the motion was denied regardless of the expert's opinion. The trial court made no factual findings and made no legal determination as to the constitutional reliability of the eyewitness identification.

The trial court admitted the eyewitness identification testimony, along with the expert's testimony, and gave to the jury defendant's requested jury instruction addressing the limitations of eyewitness identification as required by State v. Long, 721 P.2d 483 (Utah 1986). The jury found defendant guilty of aggravated robbery, a first degree felony under Utah Code Ann. § 76-6-302 (1995). Defendant was sentenced to serve a five-to-life term of imprisonment and pay a $10,000 fine. The sentence was stayed and a three-year probationary term imposed. Defendant appeals her conviction.

ANALYSIS

Defendant challenges her conviction on two grounds. First, defendant argues the trial court's failure to make findings of fact and failure to perform the required constitutional reliability analysis before admitting the eyewitness identification violated her due process rights under the Utah Constitution. ¹ Second,...