State v. Nettles

• Decision Date: 07 September 1972
• Docket Number: No. 42323,42323
• Citation: 81 Wn.2d 205,500 P.2d 752
• Parties: STATE of Washington, Respondent, v. David L. NETTLES, Petitioner,
• Court: Washington Supreme Court

Page 205

81 Wn.2d 205

500 P.2d 752

STATE of Washington, Respondent, v. David L. NETTLES, Petitioner,

No. 42323.

Supreme Court of Washington, En Banc.

Sept. 7, 1972.

Rehearing Denied Oct. 26, 1972.

Girolami, Skidmore & Self, Durward E. Self, Tacoma, for petitioner.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., and Eugene G. Olson, Chief Crim. Deputy Pros. Atty., with him on the brief) for respondent.

FINLEY, Associate Justice.

Defendant (appellant) appeals from a judgment upon a jury conviction of two counts of robbery, challenging the constitutional validity of certain pre-trial identification procedures.

The robberies for which defendant was charged occurred in the early morning hours of May 2, 1970. The victims, Brown, King, and Malone, all servicemen stationed at Fort Lewis, were waiting to catch a bus back to the base after spending an evening in downtown Tacoma, when they were approached by defendant Nettles and co-defendant Turner. One of the defendants halted a passing car driven by two girls who had been in the company of the defendants earlier in the night. Everyone, including the victims, got into the car and proceeded to one of the girls' homes for the purpose of having a party. It was at this house that Brown and King were beaten and robbed. An attempt was made to rob Malone, but it proved unsuccessful.

Defendant was arrested on May 7, 1970, and the trial of defendant and co-defendant Turner began on June 22, 1970. The jury was unable to reach a verdict as to Turner, but defendant Nettles was convicted of two counts of robbery. The court of appeals affirmed the convictions. State v. Nettles, 6 Wash.App. 257, 492 P.2d 567 (1971). We granted appellant's petition for review, for the purpose of resolving an alleged conflict between the decision of the court of appeals in Nettles and the decisions of that court in State v. Ferguson, 3 Wash.App. 898, 479 P.2d 114 (1970), and State v. Lane, 4 Wash.App. 745, 484 P.2d 432 (1971), and clarifying the constitutional requisites of photographic identification procedures.

The circumstances of the photographic identifications in the instant case are as follows: Approximately two weeks before trial, While defendants Nettles and Turner were in custody, the victim Brown was shown four photographs at the Tacoma Police Station. Two of these were of men and two of women. One of the two photographs of men was of defendant Nettles; the other was of defendant Turner. Appellant Nettles contends that the victim's identification of the defendant from these photographs was constitutionally invalid and rendered the victim's subsequent in-court identification of defendant similarly invalid. We do not agree.

In the first place, we are convinced that the showing of photographs to a witness or victim of a crime is not a 'critical state' of a criminal proceeding requiring the presence of counsel under the sixth amendment to the United States Constitution, even if the defendant has been arrested and charged with the crime. State v. Searcy, 4 Wash.App. 860, 484 P.2d 417 (1971); United States v. Williams, 436 F.2d 1166 (9th Cir. 1970); United States v. Bennett, 409 F.2d 888 (2d Cir. 1969); McGee v. United States, 402 F.2d 434 (10th Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); United States v. Robinson, 406 F.2d 64 (7th Cir. 1969); United States v. Ballard, 423 F.2d 127 (5th Cir. 1970); Rech v. United States, 410 F.2d 1131 (10th Cir. 1969).

The rationale behind the rule set forth in the above cited cases is that photographic identification involves no actual confrontation of the accused himself, at which the presence of counsel might be required to protect the rights of the accused against infringement by those confronting him. And even if a photographic identification procedure is regarded as a species of 'confrontation in absentia,' the exhibited photographs provide admissible and readily visible evidence with which defense counsel can support an in-trial argument that the photographic 'confrontation' was impermissibly suggestive and violative of due process under the rule of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In United States v. Clark, 289 F.Supp. 610, 621 (E.D.Pa.1968), the Court said:

While it is true that photographic displays, such as the one challenged here, do present somewhat greater opportunities for prejudice than do the other types of pre-trial investigatory stages which the Supreme Court in Wade and Gilbert distinguished from confrontations, the dangers inherent in these procedures have been recognized by the Court which has developed a body of precedent which requires the suppression a(t) trial of any identification testimony produced by '. . . unnecessarily suggestive . . .' pretrial procedures such as photographic displays. . . . Moreover, it is likely that if any form of prejudice taints this type of procedure it is prejudice which arises from the nature and/or type of photographs displayed. By using these photographs in his cross-examination of government witnesses, defense counsel easily can reveal such prejudice and thereby impugn the related identification testimony.

If the alleged prejudice arises, as it presumably does in the instant case, from the small number or limited sampling of photographs shown to the witness, this fact can also be brought out at trial. The presence of counsel at such an identification procedure would not provide significant additional protection of the defendant's rights.

We therefore follow the decision of the court of appeals and the majority rule of the federal courts of appeal, in holding that the right to counsel does not extend to out-of-court photographic identification, regardless of the fact that defendant may be in custody and under arrest at the time.

Appellant next contends that the photographic identification procedures in the instant case were violative of the United States Constitution by serving to deprive defendant of his liberty without due process of law. We do not agree.

The test for determining whether an identification procedure violates due process is set forth in Simmons v. United States, Supra, 390 U.S. 377, at 384, 88 S.Ct. 967, at 971:

(E)ach case must be considered on its own facts, and . . . 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.

We agree with the court of appeals that the photographic identification procedure in the instant case was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The acquaintance of the victims with the defendant was not of the 'fleeting glimpse' variety characteristic of the typical armed robbery; on the contrary, they spent some time together in a car and attended a party together. At no time did defendant make any effort to disguise himself. Furthermore, the photographic identification was not a tentative recognition but a positive identification by an individual who had spent a considerable amount of time in the company of defendant.

We cannot commend the identification procedure which was used in this case. Where a defendant is in custody and available for a line-up, a line-up identification procedure would usually be a more effective, less questionable law enforcement technique, and should be used, following the requirements or standards prescribed in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Where a line-up is impracticable, photographic identification should be conducted with the maximum...