State v. Padilla

• Decision Date: 12 July 1976
• Docket Number: No. 5717,5717
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Rodney PADILLA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 357

552 P.2d 357

57 Haw. 150

STATE of Hawaii, Plaintiff-Appellee, v. Rodney PADILLA, Defendant-Appellant.

No. 5717.

Supreme Court of Hawai'i.

July 12, 1976.

Syllabus by the Court

1. Conviction based on eyewitness identification at trial, following a pretrial identification by photographs, will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

2. Where robbery had been effected at the point of a gun with threat to kill, the jury was entitled to infer that the gun was loaded and capable of being fired, and there was no failure of proof that the robber was armed with a dangerous instrument within the meaning of HRS § 708-840.

3. Prosecutor's statement in closing argument referring to the failure of defendant to call witnesses did not of necessity refer to the failure of defendant to take the stand since defendant was not the only possible person who could contradict the testimony of the wtinesses for the prosecution.

4. Refusal to give requested instructions relating to eyewitness testimony was not an abuse of discretion where the cross-examination of the prosecution witnesses, the arguments to the jury and the instructions which the court gave to the jury had already adequately directed the jury's attention to the identification evidence.

5. Where defendant sought to draw an adverse inference from prosecution's failure to present a witness, the prosecution was entitled to explain that the reason for the nonproduction was the defendant's objection to allowing the prosecution to reopen its case for the purpose of calling the witness.

David W. Hall, Honolulu (Hart, Leavitt & Hall, Honolulu, of counsel), for defendant-appellant.

Reina A. Grant, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Defendant appeals from a judgment of conviction of robbery in the first degree. The questions presented by the appeal are: whether the pretrial use of a photographic identification procedure fatally tainted an in-court identification; whether a charge of robbery with a dangerous instrument, based upon use of a firearm, required proof whether certain arguments made to the jury by the prosecutor constituted impermissible comments on defendant's failure to take the stand; whether, after defendant's counsel had commented on the prosecution's failure to call an eyewitness, the prosecution was entitled to inform the jury that defendant had prevented the prosecution from calling the witness; and whether the jury should have been specially instructed with respect to the reliability of eyewitness identification. We affirm.

The robbery took place on July 22, 1973. The robber entered a cafe, waved and pointed a gun while threatening to kill anyone who moved, seized the manager of the cafe, forced him at gunpoint to open the cash register and departed with an undisclosed amount of currency taken from the cash register. The gun, described in the testimony as a 'handgun' and as a 'revolver', was not fired during the robbery and there was no evidence of its capability of firing or inflicting harm.

The arresting officer testified, without objection, that while on patrol shortly after the time of the robbery he had received a police broadcast describing a station wagon and its occupants, and that he then noticed a parked vehicle and checked with 'dispatch' which confirmed that 'this was the vehicle involved' in the robbery. The broadcast had included the information that the vehicle sought had four occupants, including a female driver with blond hair. When the officer approached the car, defendant and two other males were standing to the rear of the station wagon and a female driver with blond hair was in the vehicle. All were placed under arrest. A search of the station wagon disclosed a revolver in a woman's handbag, loose currency totaling $436, and a poncho resembling the one worn by the robber. There was no other testimony linking the revolver and the money found in the station wagon with the revolver and money involved in the robbery.

Defendant was positively identified in court by an eyewitness as the robbert. A second eyewitness testified that defendant had the same characteristics as the person he saw commit the robbery but that he was unable at the time of the trial to say whether or not defendant was the same person. A third eyewitness testified that defendant did not 'look like the person' who committed the robbery.

On the fifth day after the robbery, the two eyewitnesses by whom defendant was later identified at the trial were asked to examine three sets of photographs. Each set contained 10 photographs of male individuals and each photograph bore a date at the bottom of the picture. One of the sets contained the photograph of defendant and each of the other sets contained the photograph of one of the two men with whom defendant had been arrested. The photographs of defendant and his two companions bore the date 7/23/73, the day following the robbery, while the other photographs in the three sets bore varying dates, none later than 3/24/73. The set of 12 photographs in which defendant's photograph was placed included two bearing dates of 1/5/73 and none of later date except that of defendant. The eyewitness who failed at the trial to identify defendant as the robber had not been shown the sets of photographs. The eyewitness who supplied the more positive in-court identification of defendant selected defendant's photograph and exhibited no difficulty in making her selection. The eyewitness who was less positive in his identification of defendant first selected two photographs, one of which was the photograph of defendant, and finally selected the photograph of defendant as 'more likely' than the other although 'he didn't want to commit himself to a positive identification.' There was no inquiry at the trial as to whether the witnesses were in any way influenced by the dating of the photographs in making their identifications or whether the witnesses were aware that the photographs bore dates. The eyewitness who more positively identified defendant as the robber testified that she believed that her identification was independent of her examination of the photographs but that she was 'not really sure.' The eyewitness who less positively identified defendant testified that his prior identification of the photograph had 'a great deal to do' with his identification of the defendant in court.

Defendant did not take the stand an presented but one witness, who testified only to prior statements of a prosecution witness. The allegedly improper statements of the prosecutor and the jury instructions which the court rejected are described in parts III and IV of this opinion.

I

Defendants contends that the current dates, placed on the photographs of defendant and his two companions, tainted the photographic identification procedure by conveying the suggestion that they were under suspicion and thus increased the likelihood of misidentification. It is clearly possible that both of the identifying eyewitnesses were assisted by their recollection of the prior photographic identifications in arriving at their in-court identifications. If they had been led by the suggestiveness of the dates on the photographs to erroneously select the photograph of defendant, the later in-court identifications could have been the result of the prior error and not entitled to belief. The danger that the use of photographic identification procedures may result in misidentification at trials has troubled the courts. It is now clear that the use of eyewitness identification at the trial may deny a defendant due process of law and require reversal where the in-court identification was preceded by an impermissibly suggestive photographic display to the witness.

The applicable rule was announced in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), as follows:

(W)e hold that each case must be considered on its own facts, and that 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. ¹

The rule of Simmons was applied to stationhouse showup in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where it was held that the admission of evidence of a suggestive confrontation does not in every instance offend due process, and that testimony of an out-of-court identification was properly received, despite suggestiveness in the procedure, where examination of the record before it convinced the Court that there was no substantial likelihood of misidentification. In so holding, the Court laid down criteria for evaluating the effect of a suggestive pretrial identification procedure which are equally applicable to photographic identification:

We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to veiw the criminal at the time of the crime, the witness' degree of attention, the accuravy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. . . . (409 U.S. at 199, 200, 93 S.Ct. at 382.)

Evaluation of the facts of the present case in light of these factors ² leads us to the conclusion that the photographic...