State v. Newman

• Decision Date: 31 March 1971
• Docket Number: No. 200--II,200--II
• Citation: 484 P.2d 473,4 Wn.App. 588
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. James Frances NEWMAN, Appellant.

Page 588

4 Wn.App. 588

484 P.2d 473

The STATE of Washington, Respondent, v. James Frances NEWMAN, Appellant.

No. 200--II.

Court of Appeals of Washington, Division 2.

March 31, 1971.

Review Denied May 26, 1971.

James B. Gorham, of Sawyer & Gorham, Court appointed, Puyallup, for appellant.

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

PETRIE, Chief Judge.

On the evening of November 6, 1969, David Nelson, the attendant, and Michael Masella, his friend, were in the process of closing Harold's Service Station in Tacoma. As Masella was removing his car from the garage and parking it, two young men entered the station office and forced Nelson to empty the cash register. Masella re-entered to find the robbery in progress. Nelson was then forced to open a safe in a rear room. The robbers removed the money therefrom and fled. During the subsequent investigation, Masella identified the photographs of James Frances Newman. He also identified Newman on the basis of his appearance and voice at a lineup and again at trial. On the other hand, Nelson was unable to make an identification at any time.

At trial, Masella's identification was the only link between Newman and the crime. The appellant offered an alibi witness but did not take the stand himself. The jury found him guilty of robbery and found that he was armed with a deadly weapon. Newman appeals.

Because the only evidentiary link between Newman and the crime was the eye-witness identification, the appellant subjected the identification procedures to a rigorous attack at trial; it continues on appeal. The facts of the identification are as follows: Masella was shown a group of 12 photographs by the police on the day following the robbery. He selected Newman's picture. At a subsequent lineup, which appellant's counsel attended, Masella identified Newman on the basis of both his appearance and his voice. At trial, he again identified the appellant.

When the use of photographs for identification in a criminal investigation is questioned, the primary inquiry ¹ is directed toward whether or not the use of these photographs was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This is a legal question to be resolved by the court--the answer to which, however, is determined by the totality of the factual circumstances in each case. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

We have examined the photographs and reviewed the record as to police conduct at the time of showing these photographs. It is our opinion that neither the content of the photographs nor the conduct of the police can be characterized as impermissibly suggestive. Accordingly, we hold that the appellant was not denied due process of law.

Appellant also contends that these photographs were admitted without proper foundation. This question arises because of an internal police procedure whereby a 'book' of photographs is maintained for continuing use in criminal investigation. In its daily use, photographs are removed from the book and either replaced by others of later returned. It is this use of the book which leads to the present question. The record maintained by any officer using this book is based on the police identification numbers on the photographs therein at the time he shows it to a witness. According to the record, these identification numbers are assigned to a person at the time of his first photographing; should he at some future time again be photographed, this original number will be used.

Appellant argues that since many of the persons whose photographs were in the book used in this case have admittedly been photographed on other occasions, the record kept by the officer is only a basis for the statement that these are the men whose photographs were in the book, and is not sufficient foundation for the statement that these are the precise photographs which were shown to the witness. Undoubtedly, this question would not now be before us had the police used both the identification number and the date of the photograph as a means of record-keeping. However, the detective who testified herein stated that he was certain these were the same photographs which he had shown to Masella and Nelson. The trial court decided to admit the photographs. The general rule is that the admission of photographs is discretionary with the trial court and its decision, absent gross abuse, will not be disturbed on appeal. State v. Griffith, 52 Wash.2d 721, 328 P.2d 897 (1958). We are unable to say that the trial court abused its discretion in this matter.

Appellant's final contention regarding these photographs is that the admission of his photographs denied him a fair trial. It was plainly marked with a police identification number and a date several months prior to the robbery herein; it was what is often referred to as a 'mug shot.' In another case we might possibly find this admission constituted prejudicial error. See State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968); State v. Allen, 72 Wash.2d 38, 431 P.2d 590 (1967); State v. Kritzer, 21 Wash.2d 710, 152 P.2d 967 (1944). However, counsel for the appellant made no objection specifically directed to this problem; indeed, in voir dire examination of the detective prior to the admission of these photographs, counsel for the appellant brought to the attention of the jury the fact that these photographs were of men who had been arrested on other occasions. That was a tactical decision to elicit this testimony as support for his objection to the foundation for admission of these photographs. While counsel appointed on appeal was not counsel at trial, he is nevertheless bound by the tactical decisions of his predecessor. We must conclude on the basis of this record that any error in the admission of these photographs was invited by counsel for appellant.

Of the remaining assignments of error, only two require discussion. First, appellant contends that a video-tape recording of his lineup was admitted without proper foundation. He places great reliance on State v. Williams, 49 Wash.2d 354, 301 P.2d 769 (1956), contending that the standards outlined therein were not observed in this case. ²

But that case dealt specifically and expressly with audio wire or tape recordings. The issue then is whether or not the stringent requirements for the admission of audio wire or tape recordings in Williams should also be applied to video-tape recordings. ³ Our research reveals no case in this state in which the Williams standards have been held applicable to the admission of either still-photographs or sound movies. To lay a proper foundation for such demonstrative evidence, it is only required that some witness, not necessarily the photographer, be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portrays the subject illustrated, State v. Tatum, 58 Wash.2d 73, 360 P.2d 754 (1961). It is then admissible in the sound discretion of the trial court, State v. Tatum, Supra. See also Roberts v. Goerig, 68 Wash.2d 442, 413 P.2d 626 (1966) (movie film strip).

In our effort to determine how the courts of other states have considered this question, we have been able to discover only one case in which the foundation for admission of video-tape evidence was discussed. In Paramore v. State, 229 So.2d 855 (Fla.1969), the Florida Supreme Court was faced with the question of whether the trial court had properly admitted a videotape confession of the defendant when the state had not shown continuity of possession of the video-tape. The court held that the rule governing admissibility into evidence of photographs applies with equal force to the admission of motion pictures and video-tapes, and that since the accuracy of the video-tape had been established, it was properly admitted.

We agree. The requirements for the admission of video-tapes should be similar to those for photographs. In the present case, the detective witness testified concerning the circumstances of the video-tape recording of the lineup and also testified that it was a fair and accurate reproduction of the appellant's lineup. The court then...