State v. Scott

• Decision Date: 03 January 1980
• Docket Number: No. 45055,45055
• Citation: 93 Wn.2d 7,604 P.2d 943
• Parties: The STATE of Washington, Respondent, v. Johnie William SCOTT, Kevin Paul Sample and Roger Brian Benson, Appellants.
• Court: Washington Supreme Court

Page 7

93 Wn.2d 7

604 P.2d 943

The STATE of Washington, Respondent, v. Johnie William SCOTT, Kevin Paul Sample and Roger Brian Benson, Appellants.

No. 45055.

Supreme Court of Washington, En Banc.

Jan. 3, 1980.

Muscek, Adams, Baker & Gagliardi, Thomas M. Baker, Jr., W. Stephen Gregorich, William N. Goodwin, Tacoma, for appellants.

Don Herron, Pierce County Pros. Atty., Joseph D. Mladinov, Sp. Deputy Pros. Atty., Tacoma, for respondent.

WRIGHT, Justice.

Appellants Johnie Scott, Roger Benson and Kevin Sample appeal first-degree robbery convictions, raising several questions.

About 1 a. m. on March 25, 1977, the Tacoma business known as "The Office Tavern" was robbed by armed men. Two men entered the tavern. One of the customers in the tavern ran outside when the robbers left and gave police a description on the car, a late-model dark Plymouth, used to depart the scene. A similar vehicle, a black 1968 Plymouth Barracuda, had been used in a robbery a few days before and on that occasion the police had obtained the license number of the car and traced it to a Tacoma address.

Based upon the description of The Office Tavern robbery vehicle, the police immediately acted. Police cars took up checkpoints nearby and on South 12th and K Streets, at places they expected the vehicle to pass when going to that address. About 15 minutes after the robbery the 1968 black Barracuda was sighted and stopped near the corner of South 12th and K Streets.

Appellants were arrested and charged the same day with first-degree robbery. On April 1, 1977, a lineup was held in which Benson and Sample, but not Scott, appeared. Scott was not included because he was not believed to have been inside the tavern at robbery time. Instead, he was believed to have been the getaway-car driver.

Numerous questions are raised by one or more of the appellants. Those questions are considered below.

PROPRIETY OF ARREST

The only issue urged by all of the appellants is the alleged impropriety of the initial arrest. We affirm the trial court and hold there was probable cause.

The description of the automobile used in the robbery (a dark, late-model Plymouth) was similar to that of the car which was stopped (a 1968 black Barracuda). See State v. Berkins, 2 Wash.App. 910, 471 P.2d 131 (1970). Moreover, the decision was reinforced by information that a 1968 model year black Barracuda had been used in a robbery a few days earlier. The modus operandi in the earlier robbery was similar and there was substantial evidence linking the 1968 black Barracuda to the earlier robbery. The police had learned the vehicle owner's identity and had gone to his residence to look at the car so it could be identified. One of the officers who assisted in stopping the car had previously identified it.

We have often said the probable cause test is one of reasonableness. In State v. Cottrell, 86 Wash.2d 130, 542 P.2d 771 (1975), we said:

The standard of probable cause required to justify a warrantless arrest is well recognized, State v. Gluck, 83 Wash.2d 424, 426, 518 P.2d 703 (1974), and has often been considered at length. See, e. g., State v. Poe, 74 Wash.2d 425, 428-29, 445 P.2d 196 (1968); State v. Green, 70 Wash.2d 955, 958, 425 P.2d 913, Cert. denied, 389 U.S. 1023, 88 S.Ct. 598, 19 L.Ed.2d 670 (1967). The following quotation from State v. Todd, 78 Wash.2d 362, 365, 474 P.2d 542, 544 (1970), summarizes the basic elements of probable cause to arrest without a warrant:

In order to be justified in arresting without a warrant, an officer must believe and must have good reason to believe that a person has committed or is about to commit or is in the act of committing a felony. Not only must the officer have a real belief that the person is guilty, but that belief must be based upon reasonable grounds. Proper cause for arrest has often been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Palmer, 73 Wash.2d 462, 438 P.2d 876 (1968); State v. Easton, 69 Wash.2d 965, 422 P.2d 7 (1966); State v. Miller, 151 Wash. 114, 275 P. 75 (1929).

See State v. Gluck, supra; State v. Hughlett, 124 Wash. 366, 368, 214 P. 841 (1923).

Probable cause is based upon the totality of facts and circumstances within the knowledge of the arresting officer. It is not necessary that the knowledge or evidence establish guilt beyond a reasonable doubt, "for in this area the law is concerned with probabilities arising from the facts and considerations of everyday life on which prudent men, not legal technicians, act." State v. Parker, 79 Wash.2d 326, 328-29, 485 P.2d 60 (1971).

The test is one of reasonableness considering the Time, the Place, and the Pertinent circumstances. Plancich v. Williamson, 57 Wash.2d 367, 357 P.2d 693 (1960). The standard of probable cause . . . is to be applied in the light of everyday experience, rather than according to strict legal formulae.

State v. Baxter, 68 Wash.2d 416, 420, 413 P.2d 638, 641 (1966). See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Furthermore, the arresting officer's special expertise in identifying criminal behavior must be given consideration.

(P)robable cause for arrest should be examined in the light of the arresting officer's special experience, and . . . the standard should be, not what might appear to be probable cause to a passerby, but what would be probable cause to a reasonable, cautious, and prudent officer.

State v. Todd, supra, 78 Wash.2d at 367, 474 P.2d (542) at 545.

Considering all of the facts and circumstances the action of the police was reasonable. The trial judge said in his oral opinion: "(I)t never ceases to amaze me that the police have the intuition to place themselves some place where their professional judgment tells them the defendants or the suspects might go by and, sure enough, the suspects did go by." We find the arrest was proper. There is no merit in appellants' contention that it was not.

LINEUP VALIDITY

Appellants Benson and Sample challenge the lineup procedure for two reasons. Benson objects because different colors of ski masks were used in the lineup. Sample objects that Scott was not in the lineup.

Ski masks of different colors were used because it was impossible to find six identical masks in Tacoma. It is apparent that on April 1, 1977, the skiing season was drawing to a close so retail stores probably did not have large stocks of ski wear.

There was no attempt to use the differing masks for any improper purpose. Three men wore identical black ski masks and three wore identical red masks. The suspects wore different colors; Sample had red and Benson had black. All persons in the lineup were of similar appearance, were dressed identically, and performed the same movements. Thus, the lineup conformed with standards approved by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 236 n. 26, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

We believe the statement in State v. Christianson, 17 Wash.App. 264, 562 P.2d 671 (1977) is applicable here. There the court said:

The existence of irreparable prejudice to an accused from a suggestive identification procedure is a factual question, to be determined case by case from the totality of circumstances. We conclude the totality of circumstances surrounding the present pretrial lineup and in-court identification were not so suggestive and conducive to misidentification as to amount to a denial of due process. Evidence arising from the identification procedure was properly admissible, for it was not derived from a tainted source.

17 Wash.App. at 268, 562 P.2d at 673 (Footnote omitted).

Sample's objection is wholly without merit and is not supported by citation of authority. Scott was not in the lineup because he was not alleged to have been in the tavern so he could not be seen by any of the witnesses. No purpose would be served by his presence in the lineup.

We affirm the trial court on the lineup issue.

ADMISSION OF PHOTOGRAPH

Appellant Sample objects to the admission of a photograph of the "mug shot" type from which all identifying information had been removed. The photograph is no more than a picture of a man wearing overalls, with nothing to suggest it was a police photograph. Its admission was necessary and relevant because Sample had materially changed his appearance by a haircut between arrest and trial time. Under these circumstances the use of "mug shots" had been approved in State v. Wheeler, 22 Wash.App. 792, 593 P.2d 550 (1979) and State v. Tate, 74 Wash.2d 261, 444 P.2d 150 (1968). The use of the photograph was permissible.

COMMENT ON FAILURE TO TESTIFY

During closing argument the deputy prosecuting attorney said: "The only defendant we heard from was Mr. Benson, Mr. Baker's client." Appellants Sample and Scott claim this is a proscribed comment on their failure to testify.

This claimed error must be viewed in light of the surrounding circumstances. The subject which the deputy prosecuting attorney was discussing in his argument was the credibility of a state's witness, Ms. Cserepes. He was alluding to the argument of Mr. Baker in which Baker had questioned the credibility of Ms. Cserepes, and had relied on the testimony of his own client, Benson. In that context the words used were not intended as a comment on the failure of Scott and Sample to testify, and could not reasonably be so understood by the jury. An examination of the record shows adequate reason to mention both Mr. Baker and his client, Benson, and to question the latter's credibility. The statement was not "of such character that the jury would naturally and necessarily accept it as a comment on defendant's failure to testify." State v. Crawford 21 Wash.App. 146, 152, 584 P.2d 442, 446 (1978); State v. Bennett, 20 Wash.App. 783, 786, 582 P.2d 569 (1978).

We desire, however, to...