State v. Williams, 2904
| Decision Date | 26 September 1974 |
| Docket Number | No. 2904,2904 |
| Parties | STATE of Arizona, Appellee, v. Oscar Charles WILLIAMS, Appellant. |
| Court | Arizona Supreme Court |
N. Warner Lee, Atty. Gen., Phoenix, by Wm. Michael Smith, Yuma County Atty., Yuma, for appellee.
Paul E. Hunter, Jr., Yuma, for appellant.
The appellant, Oscar Charles Williams, hereinafter referred to as the defendant, appeals from a conviction in the trial court of first degree rape. Defendant first contends that the search warrant obtained by the police for the purpose of searching Williams's home for articles of clothing tending to prove the identity of the assailant was fatally defective in two respects: the issuing magistrate failed to sign the warrant, and certain factual allegations made in the warrant were later found to be false. The first issue was disposed of by this court in Yuma County Attorney v. McGuire, 109 Ariz. 471, 512 P.2d 14 (1973), and need not be again considered. As to the second issue, none of the falsehoods alleged affected the integrity of the warrant, I.e., the search warrant was not materially defective in its allegations and will therefore be upheld. State v. Cox,110 Ariz. 603, 522 P.2d 29 (1974).
The next issue raised by defendant concerns the photographic lineup conducted by the police. On the second day after the incident, a police detective presented a stack of 146 pictures from which the victim was to try to identify her assailant. In this stack of pictures was a Polaroid photograph of the defendant. The victim had previously described her assailant as being a black male of medium build in his twenties. The photographic lineup was composed of all the photographs that the Yuma police department had in the mug and ID file of black males in their twenties, including 12 to 14 photographs of rape suspects from rapes that had occurred in the past. The defendant had been discussed and dismissed by the police as a primary suspect, however, because he was no longer thought to be in the Yuma area. The victim picked out the picture of defendant and perhaps the picture of another individual. Most of the pictures were identical in size and in the manner of having been taken. In arguing that his photograph was unique in being a Polaroid and somewhat smaller, the defendant ignores the fact that other pictures in the stack of 146 also differed from the majority in their composition. The testimony is uncontradicted that the detective present at the time made no comment to the victim with regard to any of the pictures.
A recognized ground for attack is the claim that the identification technique employed was 'so unnecessarily suggestive and conducive to irreparable mistaken identification that (the defendant) was denied due process of law.' Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Questions as to whether there has been an accurate in-court identification of the defendant untainted by prior identification procedures and whether such procedures were fair to the defendant are preliminary questions for the trial court. State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). In this case, the trial court held a hearing and found that the procedures utilized by the police were proper. The trial court's determination will not be disturbed on appeal unless there is clear and manifest error. State v. Murray, 106 Ariz. 150, 472 P.2d 19 (1970). A photographic identification will be set aside only if the 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). A photographic identification that is reasonably imperative for a proper police purpose and which comports with fairness in the number, type, general physical similarity, and nonemphasis of any particular suspect will not be precluded. State v. Lang, 107 Ariz. 400, 489 P.2d 37 (1971)....
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