State v. Norrid

• Decision Date: 25 May 2000
• Docket Number: No. 990308.,990308.
• Citation: 2000 ND 112,611 N.W.2d 866
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Leonard Eugene NORRID, Defendant and Appellant.
• Court: North Dakota Supreme Court

611 N.W.2d 866

2000 ND 112

STATE of North Dakota, Plaintiff and Appellee, v. Leonard Eugene NORRID, Defendant and Appellant.

No. 990308.

Supreme Court of North Dakota.

May 25, 2000.

Wade L. Webb, Assistant State's Attorney, Fargo, for plaintiff and appellee.

Monty G. Mertz, Fargo, for defendant and appellant.

MARING, Justice.

[¶ 1] Leonard Norrid appeals from a judgment of conviction resulting from his conditional pleas of guilty under N.D.R.Crim.P. 11(a)(2) to charges of burglary, aggravated assault, and terrorizing. We conclude the eyewitness identification procedure employed in this case was not unnecessarily or impermissibly suggestive and Norrid's statements to law enforcement were voluntary. We affirm.

I

[¶ 2] At approximately 10:00 p.m. on June 6, 1999, a man entered Eileen Olson's apartment through a patio door and robbed her. According to Olson, the man was in her apartment for about ten to fifteen minutes. The man hit Olson, cut her with a knife, and threatened to kill her. Olson described her assailant as a 45 year old white male wearing a baseball hat, a dark plaid shirt, and blue jeans. Olson was treated for her injuries at a Fargo hospital, where police officers showed her a picture of Norrid, a suspect they had detained and photographed near her apartment. Olson did not have her glasses at the hospital, and she was unable to positively identify Norrid as her assailant. After officers retrieved her glasses from her apartment, she was still unable to positively identify Norrid as her assailant, and she indicated "it was hard for me to look at those pictures cause my glasses were so bent out of shape." At approximately 12:30 a.m., Olson was taken to a location near the scene of the crime to personally view Norrid. Olson indicated "[t]hey put a spot light on him and asked me if that was the man that had assaulted me. And I said I was 99 percent sure, I said I just—I just—I hated to think that I would get an innocent man or anything and I wanted to stay and make sure. So we sat for a long time until I was positive it was him."

[¶ 3] Prior to Olson's identification of Norrid as her assailant, police officers detained him and gave him warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After Olson identified Norrid, he was taken to the police station at approximately 3:00 a.m. and again given Miranda warnings. Detective Jim LeDoux interviewed Norrid at the police station. Norrid initially denied involvement in the incident, but at 6:15 a.m., he signed a written statement implicating himself in the incident.

[¶ 4] The State charged Norrid with burglary, aggravated assault, and terrorizing. Norrid moved to suppress Olson's identification of him, arguing it was unduly suggestive and violated his due process rights under the Fourteenth Amendment of the United States Constitution. Norrid also moved to suppress statements he made to police officers, arguing the statements were extracted through deception and coercion and violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments. The trial court denied Norrid's motions. Norrid entered conditional pleas of guilty to the charges, reserving his right on appeal to review the trial court's denial of his motions to suppress.

II

[1] [¶ 5] In State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827 (citations omitted), we outlined our standard of review of a trial court's denial of a suppression motion:

The trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. That standard of review recognizes the importance of the trial court's opportunity to observe the witnesses and assess their credibility, and we "accord great deference to its decision in suppression matters."

III

[¶ 6] Norrid argues Olson's identification of him violated his due process rights.¹ He argues Olson's identification of him was not reliable and was inadmissible as evidence, because it was made in a suggestive atmosphere and the State failed to prove it was reliable under the totality of circumstances.

A

[¶ 7] Although an eyewitness identification is powerful and compelling evidence in a criminal prosecution, identification evidence may be riddled with innumerable dangers and variables which may seriously impinge a fair trial. See 2 Wayne R. LaFave, et al., Criminal Procedure § 7.1 (2nd ed.1999). In United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (footnotes omitted), the United States Supreme Court described the perils of eyewitness identifications:

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: "What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent—not due to the brutalities of ancient criminal procedure." The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that "[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined."

Moreover, "[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial."

In Wade, at 237-38, 87 S.Ct. 1926, the Court held the Sixth Amendment guarantees an accused the right to counsel at a post-indictment lineup, and the absence of counsel at such a lineup renders trial testimony about the lineup identification inadmissible. See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)

.

[¶ 8] In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), a companion case to Wade and Gilbert,² the Court held identification testimony must be suppressed if, under the totality of the circumstances, the procedure for identification "was so unnecessarily suggestive and conducive to irreparable mistaken identification" to constitute a denial of due process. In Stovall, at 295, 87 S.Ct. 1967, a victim of a stabbing was hospitalized for major surgery to save her life, and the defendant was arrested for the offense and brought to the victim's hospital room for a single-person show up. As the Court explained, the defendant was the only Negro in the room and was handcuffed to one of five police officers who, with two members of the District Attorney's office, brought the defendant to the hospital room. Id. From her hospital bed, the victim identified the defendant after being asked by an officer whether he "`was the man" and after the defendant repeated a "`few words for voice identification.'" Id. At trial, the victim and the police officers testified about the victim's identification of the defendant in the hospital room, and the victim also made an in-court identification of the defendant. Id. The Court condemned "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup," but concluded, under the totality of the circumstances, the immediate hospital identification was imperative. Id. at 302, 87 S.Ct. 1967. The Court said the victim was the only person who could exonerate the defendant; the hospital was not far from the jail; no one knew how long the victim might live; and, faced with the responsibility of identifying the attacker, the need for immediate action, and the knowledge the victim could not visit the jail, the police followed the only feasible procedure and took the defendant to the hospital room. Id.

[¶ 9] Since Stovall, the Court has explained that, when the issue is whether a witness at an earlier identification can identify the defendant at trial, the analysis focuses on whether the prior identification was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court recognized that, while the phrase "substantial likelihood of irreparable misidentification" was coined as the standard for deciding the admissibility of an in-court identification in the wake of a suggestive out-of-court identification, the phrase works equally well, with the deletion of "irreparable," as the standard for the admissibility of testimony concerning an out-of-court identification.

B

[¶ 10] Under the Stovall due process test, the determination of the admissibility of an identification involves a two-pronged analysis of (1) whether the identification procedure is impermissibly suggestive, and (2) if so, whether the identification nevertheless is reliable under the totality of the circumstances. See Manson v. Brathwaite, 432 U.S. 98, 109-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)

; Biggers, 409 U.S. at 198-99,

93 S.Ct. 375; Simmons, 390 U.S. at 384-85,

88 S.Ct. 967. See also State v. Syvertson, 1999 ND 137, ¶¶ 26-27, 597 N.W.2d 644,

cert. denied, ___ U.S. ___, 120 S.Ct. 383, 145...