Opinion
No. 63883-1-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-8-02650-9, Christopher A. Washington, J., entered June 26, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Cox and Schindler, JJ.
Although a defendant is entitled to a fair identification process, there is no requirement for any formal identification procedure before trial. Here, Sean Seals fails to demonstrate error in the trial court's denial of his CrR 4.7 motion for a lineup nearly seven months after his arrest based on his claim that police failed to determine whether any other available witness would identify Seals after a police officer identified him at a single show-up. We affirm.
FACTS
While on patrol in West Seattle on the evening of June 17, 2008, Seattle Police Officer Jason McKissack received a dispatch call regarding a disturbance nearby. As Officer McKissack approached the reported location, he observed two males fighting and attempted to pull them apart. One man backed away but the other attacked Officer McKissack, punching him repeatedly. During the ensuing struggle, Officer McKissack forced the man down to the ground, straddled his chest, and attempted to subdue him.
Meanwhile, a third male punched Officer McKissack in the head and backed away two times. On his third approach, the young man ran toward Officer McKissack and kicked him in the face like "someone kicking off at a football game or someone kicking a soccer ball." The young man ran away as other officers began to arrive.
Based on descriptions provided by Officer McKissack and other witnesses, officers arrested Sean Seals nearby and placed him in a patrol car. Officer McKissack identified the suspect in the car, Seals, as the man who kicked him.
The State charged Seals, a juvenile, with third degree assault and obstructing a law enforcement officer. Nearly seven months later, in January 2009, Seals filed a motion under CrR 4.7 seeking a pretrial lineup for all the State witnesses. The court denied the motion after a contested hearing.
At a fact finding hearing, Officer McKissack testified that while he was struggling with the man on the ground, he stared at the face of the young man who approached to punch and kick him, "was concentrating on his face," and "had an image of his face locked in my mind." When he saw Seals in the patrol car, Officer McKissack was "[a] hundred percent" certain that Seals was the person who kicked him.
The trial court found Seals guilty of the assault but not guilty of obstructing. Seals appeals.
ANALYSIS
Seals complains that the State's case rested on the single, suggestive show-up identification by Officer McKissack and there were several other witnesses who were not asked to identify the perpetrator before trial. He argues that the court's denial of his motion for a lineup violated his right to present a defense and his right to a fair trial by denying him the opportunity to gather "the only reasonably available persuasive evidence" to counter the State's case.
An out-of-court identification violates due process if it is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. But there is no constitutional or due process right to any particular pretrial identification procedure. CrR 4.7(b)(2)(i) provides that "the court on motion of the prosecuting attorney or the defendant, may require or allow the defendant to . . . appear in a lineup[.]" This rule leaves the matter to the trial court's discretion, which is abused only when no reasonable person would reach the same determination.
Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Maupin, 63 Wn. App. 887, 896-97, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992).
State v. Dukes, 56 Wn. App. 660, 662-64, 784 P.2d 584 (1990) ("[N]o Washington court has held that there is a constitutional right to a lineup," and "[n]either does the denial of a lineup constitute a due process violation.").
Dukes, 56 Wn. App. at 664.
Seals complains that (1) the police did not attempt to obtain an identification from any other witness; (2) Officer McKissack had suffered a head trauma and was very angry when he identified Seals; (3) lineups are more reliable than show-ups involving a single suspect handcuffed and detained in a police car; (4) Seals did not have counsel present at the show-up; (5) Officer McKissack had limited opportunity to view the perpetrator during the incident and could not identify his clothing; (6) eyewitness certainty is not necessarily related to accuracy; (7) cross-racial identifications are problematic; and (8) other witnesses, determined to be credible by the trial court, did not identify Seals as the perpetrator at the fact finding hearing.
But all these concerns go to the sufficiency of Officer McKissack's identification of Seals, not its propriety. Seals had the opportunity to cross-examine witnesses about these matters and present such arguments to the fact finder. As the trial court observed at the CrR 4.7 hearing, the outcome of the case would depend on "whatever testimony is provided in court," and requiring a lineup "doesn't change that." And none of Seals' citations to authority from other jurisdictions or to articles or treatises establishes an abuse of discretion here. Seals fails to establish error in the court's denial of his motion for a lineup.
Dukes, 56 Wn. App. at 664.
Seals next contends that the trial court improperly admitted three recordings of 911 calls under ER 803(a)(1), the present sense impression exception to the hearsay rule. A present sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," and may be admitted regardless of whether the declarant testifies. We review the trial court's evidentiary ruling for abuse of discretion.
ER 803(a)(1).
State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997)
Seals argues that certain statements made by the witnesses during the 911 calls in response to questions, such as those requesting descriptions of persons involved, were not admissible as present sense impressions. He relies on the following statement in State v. Martinez: "An answer to a question is not a present sense impression." InMartinez, three officers presented conflicting testimony about whether an informant volunteered a statement identifying a suspect or a particular vehicle or agreed that he recognized the person or the car when it arrived. Because the informant's statement identifying either the suspect or the vehicle, whether volunteered or in response to a question, was "relevant only when coupled with his memory and belief, based on a prior course of conduct, that [the suspect] was arriving in a particular vehicle from which he had previously sold [the informant] drugs," it was not a present sense impression.
105 Wn. App. 775, 783, 20 P.3d 1062 (2001), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003).
Martinez, 105 at 783-84 (emphasis omitted).
But here, it is undisputed that each of the callers described the events and suspects as he or she "was perceiving" Officer McKissack struggle with the men or "immediately thereafter." The trial court did not abuse its discretion when it admitted the calls as present sense impressions and Martinez does not require a different result. Seals fails to establish error.
Affirmed.