State v. Scabbyrobe

• Decision Date: 18 March 2021
• Docket Number: No. 37124-7-III,37124-7-III
• Parties: STATE of Washington, Respondent, v. Haven Mary SCABBYROBE, Appellant.
• Court: Washington Court of Appeals

482 P.3d 301

STATE of Washington, Respondent,

v.Haven Mary SCABBYROBE, Appellant.

No. 37124-7-III

Court of Appeals of Washington, Division 3.

FILED MARCH 18, 2021

PUBLISHED OPINION

Lawrence-Berrey, J.

¶ 1 Haven Scabbyrobe appeals her conviction for theft of a motor vehicle. She argues she received ineffective assistance of counsel because trial counsel failed to move to suppress the victim's showup identification of her. We disagree and affirm.

FACTS

¶ 2 Jeffery Huff left his car running in his driveway early one mid-November morning. From inside his house, he saw his car backing away. Huff hurried outside and saw a woman inside his car. The woman backed into a telephone pole and large rock, the latter interfered with her driving away.

¶ 3 Huff was able to get into his car through the front passenger door and yelled for the woman to get out. She said she was unable to, and Huff noticed that a mailbox blocked the driver's side door from opening. He also noticed a dark tattoo on the top of her left hand. Huff directed the woman to crawl over him. Once out, she began to dig in her pockets. Huff thought she might be looking for a weapon, so he told her if she pulled out anything he would knock her out. The woman then left, walking very fast down the road, then turning down a second road and out of sight.

¶ 4 Huff called 911 and Sergeant Joseph Vanicek responded within one or two minutes. Huff described the woman as a Hispanic female with long dark hair, wearing a black coat, and carrying two backpacks. Sergeant Vanicek forwarded this description to other officers, including Officer Damon Dunsmore, who was in the area.

¶ 5 A few minutes later, Officer Dunsmore saw a woman running and looking behind her. She was wearing basketball-style shorts, no coat, and open toe sandals. Because she was not properly clothed for the near freezing temperature and because her shoes did not suggest she was exercising, Officer Dunsmore stopped her and alerted Sergeant Vanicek that he had a woman who might be the suspect.

¶ 6 Huff accompanied Sergeant Vanicek to Officer Dunsmore's location. While en route, Sergeant Vanicek said, "just because [you are] going to look at a female suspect, it doesn't necessarily mean it [is your] suspect." Clerk's Papers (CP) at 82.

¶ 7 When they arrived, Huff saw a woman in handcuffs standing next to an officer, both about 30 to 40 feet away. Huff noticed that the woman was not wearing the same clothes, did not have any backpack, and her hair was up instead of down. Nevertheless, he identified the woman with "100 percent" confidence as the one who had tried to steal his car. Report of Proceedings at 282, 311. Huff also said the woman should have a tattoo on the top of her hand. Officer Dunsmore looked at the woman's hand and said she did have a tattoo on the top of her hand.

¶ 8 The woman, Scabbyrobe, identifies as Native American, not Hispanic. She also had a smaller-than-pupil-sized green heart tattoo under her right eye, and a nearby small mark that might have been an old tattoo.

¶ 9 The State charged Scabbyrobe with theft of a motor vehicle. During the State's case-in-chief, Huff again identified Scabbyrobe as the woman who tried to steal his car. Defense counsel elicited from Huff that he had not noticed anything distinctive about the thief's face.

¶ 10 During closing, defense counsel argued Scabbyrobe was not the same woman Huff had seen in his car. The defense emphasized that Scabbyrobe was wearing different clothes than the thief, she was not carrying two backpacks, and she had a distinctive tattoo on her face. The State argued that Scabbyrobe, trying not to be caught, may have discarded or hidden her coat, pants, and backpacks before she was seen by Officer Dunsmore.

¶ 11 The jury deliberated for two to three hours and declared they were at an impasse. The trial court directed them to continue deliberating. Eventually, they returned a guilty verdict. Scabbyrobe timely appealed.

ANALYSIS

¶ 12 Scabbyrobe contends her trial counsel was ineffective for not moving to suppress the showup identification.

¶ 13 A criminal defendant is entitled to effective assistance of counsel. U.S. CONST. amend. VI ; WASH. CONST. art. I, section 22 ; State v. Lopez , 190 Wash.2d 104, 115, 410 P.3d 1117 (2018). To show ineffective assistance of counsel, a defendant must show that counsel's representation was deficient, and the deficiency was prejudicial. State v. McFarland , 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). In order to show actual prejudice "by counsel's failure to move for suppression, [a defendant] must show the trial court likely would have granted the motion if made." Id. at 333-34, 899 P.2d 1251.¹

SUPPRESSION OF IDENTIFICATION

¶ 14 A due process challenge to a pretrial identification procedure is a two-step inquiry. A defendant asserting that a police identification procedure denied him or her due process must first show that the procedure was unnecessarily suggestive. Foster v. California , 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). If such a showing is made, the court will consider the totality of the circumstances to determine whether the suggestiveness created a substantial likelihood of irreparable misidentification. Manson v. Brathwaite , 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

First step—not unnecessarily suggestive

¶ 15 Scabbyrobe argues the showup procedure used here was impermissibly suggestive because it focused on one person—a person selected based on Huff's description of her. We disagree.

¶ 16 The procedure used here did not run afoul of what courts have generally recognized to be impermissibly suggestive procedures. "Generally, courts have found lineups or montages to be impermissibly suggestive solely when the defendant is the only possible choice given the witness's earlier description." State v. Ramires , 109 Wash. App. 749, 761, 37 P.3d 343 (2002) ; State v. Burrell , 28 Wash. App. 606, 611, 625 P.2d 726 (1981) (suspect described as having "frizzy Afro" hairstyle; defendant was the only subject in montage with that distinctive characteristic). Here, had police told Huff the suspect was stopped because she was running in open toe sandals, this detail could have impermissibly suggested she was the thief. Instead, police suggested the opposite by telling Huff, "just because [you are] going to look at a female suspect, it doesn't necessarily mean it [is your] suspect." CP at 82.

¶ 17 We have previously recognized a "prompt identification procedure frequently demonstrates good police procedure [because it] best guarantees freedom for innocent subjects." State v. Bockman , 37 Wash. App. 474, 482, 682 P.2d 925 (1984). Here, had Officer Dunsmore arrested Scabbyrobe prior to Huff positively identifying her, this would have been an unconstitutional seizure. For all Officer Dunsmore knew, the woman he stopped may not have been the thief. A showup identification was a proper procedure to protect Scabbyrobe's constitutional right from an unconstitutional seizure and to ensure her prompt release had Huff not identified her as the thief.

¶ 18 Scabbyrobe argues that Officer Dunsmore could have taken her picture, released her, and sometime later shown Huff her picture in a photomontage with other women. We agree that Officer Dunsmore could have done that. But simply because a different procedure could have been used does not mean the procedure actually used was impermissibly suggestive. The "admission of evidence of a showup without more does not violate due process." Neil v. Biggers , 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

¶ 19 We conclude that the showup procedure used here was not unnecessarily suggestive. For this reason, the trial court likely would have denied a motion to suppress and defense counsel was not ineffective for failing to bring such a motion.²

Second step—no substantial likelihood of irreparable misidentification

¶ 20 We address the second step of the two-step inquiry so Scabbyrobe can be assured she did not receive ineffective assistance of counsel.

¶ 21 In Manson , the court eliminated a line of federal case law that required the per se exclusion of pretrial identification through unnecessarily suggestive identification procedures. State v. Vaughn , 101 Wash.2d 604, 608, 682 P.2d 878 (1984). The Brathwaite court held that reliability was the linchpin for admissibility and required that the corrupting effect of the suggestive identification be balanced against certain factors indicating reliability. Id. at 607-08, 682 P.2d 878. These factors, often referred to as the Biggers factors, are (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Biggers , 409 U.S. at 199-200, 93 S.Ct. 375 ; see also Vaughn , 101 Wash.2d at 608, 682 P.2d 878.

Application of the Biggers factors

¶ 22 First, Huff had the opportunity to view the thief up close during the crime. One does not need to see a person for longer than one minute to recognize the person 10 minutes later. This factor weighs in favor of admissibility.

¶ 23 Second, Huff paid attention to the thief. He focused on her and only her for a couple of minutes. This factor also weighs in favor of admissibility.

¶ 24 Third, Huff's description of the thief differed somewhat from Scabbyrobe. He identified her as Hispanic, but Scabbyrobe identifies as Native American. He said she would have a tattoo on the top of her hand and she did; but he did not notice the very small tattoo under her right eye or the nearby small faded mark. With respect to clothes, this is not determinative. Although Scabbyrobe was not wearing pants and a coat, she was wearing shorts and open toe sandals—inappropriate clothes for running in the cold. This suggests, as the State argued below,...