Taul v. State
| Citation | 862 P.2d 649 |
| Decision Date | 05 November 1993 |
| Docket Number | No. 93-3,93-3 |
| Parties | Kerry Kent TAUL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Leonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel, argued, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and D. Michael Pauling, Sr. Asst. Atty. Gen., argued, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
Kerry Kent Taul was convicted by a jury of one count of aggravated robbery. Taul asserts that various errors occurred during his trial which mandate reversal of his conviction.
We affirm.
Appellant raises the following issues:
ISSUE I
Was the appellant's constitutional right to due process violated by the admission of evidence concerning the identification of his photograph and the subsequent trial identification?
ISSUE II
Did the court err in permitting the prosecution to improperly impeach two defense witnesses thus denying the appellant his right to a fair trial?
ISSUE III
Does irrelevant, inflammatory, and prejudicial testimony and exhibits introduced
by the prosecutor violate W.R.E. 401, 402, 403 and 901, requiring reversal?
ISSUE IV
Was the evidence produced at trial insufficient to prove beyond a reasonable doubt that the appellant committed the robbery?
ISSUE V
Did the prosecutor's improper remarks in closing argument deny appellant his right to a fair trial?
ISSUE VI
Was it an abuse of discretion for the trial court to deny appellant's motion for new trial?
ISSUE VII
Did the various errors in the admission and exclusion of evidence have a cumulative impact which requires reversal?
On the night of March 20, 1992, Gary Simonton (Simonton) was working as a clerk at Rips Convenience Store on Highway 30 East in Evanston, Wyoming. At approximately 9:05 p.m., a man wearing a long green military style jacket, a dark colored stocking cap, and cowboy boots entered the store. After exchanging pleasantries, the man reached into his jacket and pulled out a .45 caliber handgun. He pointed the gun at Simonton and said He ordered Simonton to open the cash register and lie on the floor. The man then took $304.30 from the till and left the store.
While the robbery was in progress, Misty Pierce (Pierce) and her cousin, Danielle Cox, drove up to the store. While Cox went into the store for a pop, Pierce noticed the robber standing in front of the counter. She thought the robber might be someone she knew since he was wearing a coat that looked familiar. While trying to determine whether she knew the man, she saw the clerk drop behind the counter. Realizing that something was wrong, Pierce determined to get a look at the man. Pierce got a good look at his face as he came out the front door of the store; and, because she had training as an artist, she paid particularly close attention to his features.
Later that night, Simonton and Pierce went to the police station and assisted the police in creating a composite drawing of the suspect. Three days later, on March 23, two Evanston police officers were driving around town when they noticed a man who fit the description of the robbery suspect. The officers made contact with the man and learned that his name was Kerry Kent Taul (Taul).
After the officers had interviewed Taul, they obtained permission to search the apartment where he was staying. During the search, the officers found a blue stocking cap, a long green military style coat, and a black B.B. gun.
The officers took a picture of Taul and put it in a photo lineup with five others. The other photographs in the lineup were specifically included because they resembled the description of the suspect. One of the photographs was included because Taul remarked that he was often mistaken for him.
The police showed the photographs to Simonton and Pierce. Both witnesses selected Taul's picture. Pierce knew three of the other men in the photo array. However, at the time they made the lineup, the officers were not aware of that fact. Both witnesses again identified Taul as the robber at trial.
After a four-day jury trial, Taul was convicted of one count of aggravated robbery. He was sentenced to a term of not less than five years nor more than seven years in the Wyoming State Penitentiary. He now appeals.
Appellant contends that the pretrial identification procedures were unconstitutionally suggestive and unreliable. His complaint focuses on the photographic lineup used by the police. Appellant asserts that the lineup was suggestive because of police conduct in creating and showing the Appellant contends that the identification by Pierce was suggestive and unreliable because she knew at least three of the men in the photo array. Taul also complains that when Pierce selected his photo, she was uncertain because he looked "too white" but that the police tried to explain that away by claiming it was glare from the camera.
lineup. He contends that it was error for the police to show the jacket to Simonton before he was shown the lineup, not that Simonton's identification was unreliable. Appellant also complains that the officers slapped hands after his picture was selected.
Appellant asserts that these improper procedures, combined with the witnesses' uncertainty in their identifications and the discrepancies between their descriptions of the robber and Taul's appearance, result in an unreliable and suggestive identification. Therefore, according to Taul, the in-court identifications, which were a product of the impermissible lineups, should not have been allowed.
Pretrial identification procedures violate due process if, under the totality of the circumstances, they are "so unnecessarily suggestive as to create a very substantial likelihood of an irreparable misidentification." Green v. State, 776 P.2d 754, 756 (Wyo.1989). If the procedures were not unnecessarily suggestive, then we need not make further inquiry. However, if the procedures are unnecessarily suggestive, then
we weigh a number of factors against the corrupting influence of the identification procedure. We consider whether time and environmental conditions gave the witness an ample opportunity to view the perpetrator of the crime at the scene. We also examine the degree of the witness' attention to the perpetrator at that time, giving due regard to whether the witness was casually or intimately involved in the criminal event, and whether the witness had any special training or experience in making observations or identifications. Next, we analyze the accuracy of any description the witness may have given prior to identifying a suspect, in terms of the time lapse between the event and the description, the extent of the characteristics described, and the extent to which those characteristics peculiarly identify the suspect. Finally, we consider the certainty with which the witness identified the suspect and the time that elapsed between the criminal encounter and the later identification.
We hold that the pretrial identification procedures used in this case were not unnecessarily suggestive. The police used photographs of men who were similar in appearance to the description given by the witnesses. State v. Smith, 520 So.2d 1305, 1307-08 (La.App.1988) (); State v. Dixon, 153 Ariz. 151, 735 P.2d 761, 764 (1987) (). The photograph of appellant was not marked or distinguishable in any way from the others. Nor did the police attempt to direct the witnesses toward selecting appellant's picture.
Whether or not Simonton was shown the jacket prior to his viewing the lineup was the subject of dispute at trial. Either way, it does not matter because the police never told Simonton where they got the jacket or if the person they got it from was in the lineup. In fact, the police testified that they told Simonton that the suspect may or may not be in the lineup before they showed it to him. The hand slapping by the police, which occurred after Simonton selected appellant's picture, did not make the lineup suggestive.
It is true that Pierce knew some of the men in the photo array. However, the police did not know that when they created the lineup, and the officers testified they would not have included those photographs if they had known. The officer's explanation to Pierce about the "whiteness" of appellant's photo came after she had selected his picture. Consequently, their comments In a town the size of Evanston, the quantity of pictures available for a police lineup that are similar to a particular suspect's description is necessarily limited. Thus, the police were constrained in their ability to create a photo array. Still, Pierce had to select appellant's photograph out of the remaining three. Nave v. State, 808 P.2d 991, 993 (Okl.Cr.1991) (); State v. Humphrey, 789 S.W.2d 186, 196 (Mo.App.1990) (). We cannot say that under these circumstances, the lineup was unnecessarily suggestive.
had no bearing on the identification of appellant.
We point out that even if we assumed the procedures were suggestive, the factors favor the admission of the photo identifications. Both witnesses had adequate time and lighting to observe appellant. One witness had special training in observing the human face, the other was intimately involved in the crime. Both witnesses gave detailed descriptions of the suspect within hours of the...
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