State v. Taylor

• Decision Date: 29 July 1976
• Docket Number: CA-CR,No. 1,1
• Citation: State v. Taylor, 554 P.2d 926, 27 Ariz.App. 330 (Ariz. App. 1976)
• Parties: STATE of Arizona, Appellee, v. Terrance TAYLOR, Appellant. 1329.
• Court: Arizona Court of Appeals

Page 926

554 P.2d 926

27 Ariz.App. 330

STATE of Arizona, Appellee, v. Terrance TAYLOR, Appellant.

No. 1 CA-CR 1329.

Court of Appeals of Arizona, Division 1, Department B.

July 29, 1976.

Rehearing Denied Sept. 16, 1976.

Petition for Review Denied Oct. 5, 1976.

Bruce E. Babbitt, Atty. Gen. by Shirley H. Frondorf, Asst. Atty. Gen., Phoenix, for appellee.

George M. Sterling, Jr., Phoenix, for appellant.

OPINION

WREN, Judge.

After a trial by jury, appellant was convicted of robbery and sentenced to not less than 12 nor more than 15 years in the Arizona State Prison. A survey of the record and appellant's argument on appeal requires a resolution of the following issues:

1. Was the pretrial photographic lineup unduly suggestive?

2. Was the in-court identification the 'fruit' of an illegally obtained confession?

3. Did the discrepancy between the victim's original description of the robber and appellant's appearance make the in-court identification inadmissible?

4. Were appellant's statutory or constitutional rights to a speedy trial violated?

The facts essential to the Court's resolution of these issues are as follows: On September 23, 1974, shortly after 6:00 p.m., Morris Chez was robbed by two black males. The victim gave a description of both robbers to the police. The following day appellant was arrested on a different charge. Because his appearance matched the description of one of the robbers, a Phoenix police officer, Kenneth D. Patterson, interrogated appellant about the crime. Appellant originally denied committing the robbery, but later claimed that he was present when the robbery occurred and gave chase to the robber. Ultimately, he admitted that he robbed the victim, but stated that he was alone. Officer Patterson was not sure that appellant adequately understood his rights, and apparently had some doubts as to the reliability of his confession.

The following day, Officer Patterson asked the victim to come to the police station and view some photographs. After being handed six photographs of young black males, the victim picked out appellant, stating that 'he looks familiar, but I can't say for sure.' Officer Patterson then showed the victim two other sets of six photographs each. The victim did not recognize anyone in these two sets. According to the victim, after he identified appellant, he was told appellant's name. The victim testified at the trial that his identification of the picture was positive and without any doubt.

The next time the victim saw appellant was at the preliminary hearing when he positively identified him as one of the robbers. Although he testified that the photo lineup 'helped' in his identification of appellant, he claimed that the name of the appellant did not assist him. He stated that he could have identified appellant at the preliminary hearing without the photo lineup and that there was nothing suggestive within the photo display. The trial court denied appellant's motion to suppress the victim's in-court identification of appellant without specifying its reasons.

PHOTOGRAPHIC LINEUP

Our initial inquiry is to determine whether the photo lineup was unduly suggestive. Whether there has been a reliable in-court identification of the defendant, untainted by prior identification procedures, is preliminarily a question for the trial court which will not be disturbed on appeal unless there is clear and manifest error. State v. Murray, 106 Ariz. 150, 472 P.2d 19 (1970); State v. Darby, 105 Ariz. 115, 460 P.2d 9 (1969).

In setting forth the standard for reversing a conviction based on eye-witness identification, the United States Supreme Court has stated 'convictions based on eyewitness identification at pretrial identification by photograph will be set aside on that ground (that the preliminary identification procedures were improper) only if the photographic identification procedure 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, 971, 19 L.Ed.2d 1247 (1968). The same test was used by the Arizona Supreme Court in State v. Yehling, 108 Ariz. 323, 498 P.2d 145 (1972).

We find nothing in the record before us to indicate that the photo lineup was unduly suggestive. Officer Patterson did not tell the victim that he had a suspect in mind when he showed him the photographs. Further, although reproductions of only the first set of photos is included in the record on appeal, an examination of that set reflects nothing to indicate any undue suggestiveness in the type of photographs selected. In fact, Officer Patterson testified that he tried to select photographs similar in appearance. Moreover, appellant does not contend that the selection of photographs was unduly suggestive. There was no suggestion as to which was the appellant and the victim testified that there was nothing done or said by the officer to suggest that he should pick the appellant's photo. In the absence of any evidence that the lineup was unduly suggestive, we cannot say that the trial court erred in permitting the in-court identification. See State v. Yehling, supra (Defendant picked from six black and white photos.); State v. Richie, 110 Ariz. 590, 521 P.2d 1136 (1974) (Defendant selected out from a photo lineup of six photographs.); State v. McDonald, 111 Ariz. 159, 526 P.2d 698 (1974) (Defendant identified from a photo lineup consisting of five photos.)

In support of his contention that the officer improperly gave the identifying victim the appellant's name after the lineup was shown, appellant cites State v. Lang, 107 Ariz. 400, 489 P.2d 37 (1971). However, in Lang, the police told the victim Lang's name Prior to the photo lineup, and was then shown three photos, one of which contained a name other than Lang's, and in which the individual had a mustache. The court held that the victim in effect was selecting from only two photographs and therefore the lineup was unduly suggestive. Further, the court noted that the robbers wore disguises and the police were therefore required to exercise the 'utmost care' in the identification process. In the current case, the victim was shown 18 photographs and appellant was not disguised. Further, the victim testified that the name did not help him to identify appellant.

In addition, our Supreme Court has held that where the lineup is not unduly suggestive in the first place, a subsequent comment that the victim has correctly identified the suspect cannot taint an initially fair identification procedure or the in-court identification. State v. McDonald, supra; State v. Richie, supra; State v. Murray, supra. We feel that the providing of appellant's name is not reversible error in the current case.

Having determined that the photo lineup was not unduly suggestive, there is no need to determine whether the requirements of State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969 cert. denied 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970) were met. Nor, having determined that the confrontation procedure was not suggestive, is there any need to examine the requirements of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The victim's ability to otherwise observe and identify the robbers is sequential to a suggestive procedure. State v. Harris, 23 Ariz.App. 358, 533 P.2d 569 (1975); United States v. Hurt, 155 U.S.App.D.C. 217, 476 F.2d 1164 (1973); United States v. Kimbrough, 481 F.2d 421 (5th Cir. 1973).

The second issue that we need to decide in disposing of appellant's appeal is whether, since he was in custody at the time of the photographic lineup, a physical lineup was required instead. In support of this contention, appellant cites several Illinois cases which hold that the police should use photo lineups only when they can show extenuating circumstances. People v. Williams, 60 Ill.2d 1, 322 N.E.2d 819 (1975); People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462 (1973); People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634 (1970). Preliminarily, appellant did not make this argument to the trial court, and therefore the police had no need to show any extenuating circumstances which might have justified the use of the photographic identification. Moreover, appellant was not in custody for the present offense. Although he had made a 'confession', Officer Patterson could have had doubts about its veracity because the confession conflicted with the victim's story. Accordingly, it could be that Officer Patterson was still attempting to narrow the field of suspects rather than to develop evidence specifically against appellant. Under these circumstances, we cannot say that the photo lineup was misused even under the Illinois authorities.

Further, the general rule appears to be that it is permissible to use photographic lineups even where appellant is in custody. Tafoya v. Eyman, 315 F.Supp. 204 (D.Ariz.1970), aff. 455 F.2d 1265 (9th Cir. 1972); United States v. Jackson, 166 U.S.App.D.C. 166, 509 F.2d 499 (1974). To require physical lineups in every case where the defendant is in custody on any charge would be to place an undue burden on the police and substantially hamper their investigatory efforts. As noted in Jackson, a photographic lineup is not constitutionally impermissible because unnecessary.

On the other hand, it has been stated that the use of photographic lineups may increase the danger of misidentification. In Simmons v. United States, the court reasoned:

'Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons...