Opinion
No. 63983-8-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-12061-5, Jim Rogers, J., entered July 24, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Spearman, JJ.
Dewayne Morris appeals from his two convictions for Violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, contending that the trial court erred by admitting a photographic identification and an in-court identification. Finding no error, we affirm.
I
On a sunny afternoon in early April 2007, a cooperating witness (the CW) and Seattle Police Detective Bretton Smith participated in a controlled narcotics buy operation. Detective Smith and the CW had been working together on controlled narcotics buy operations since 2005.
In a known "drug market area," Detective Smith directed the CW to attempt to purchase $60 worth of cocaine from a group of four men. The CW purchased the cocaine from a man who introduced himself as "D." The CW described the dealer as a "light skinned [black male], about 30 years old, 6-0 [feet tall], 190 lbs, with a goatee . . . wearing a light blue t-shirt, brown pants, and had neck tattoos." Detective Smith observed the transaction. He described the dealer as a "black male . . . about 35 years [old], light skin, black hair, goatee, about 6-0 [feet tall], 180 lbs, wearing a light blue t-shirt, and brown pants." After the exchange between the CW and the dealer, the CW returned to Detective Smith's undercover vehicle.
Roughly twenty minutes later, Detective Smith directed the CW to purchase $40 worth of cocaine from a different group of men at a nearby location. After an unsuccessful attempt to purchase cocaine from that group, the CW began walking toward the location of his original purchase in order to meet up with Detective Smith. En route, the CW encountered the same dealer from the earlier transaction. The CW again purchased cocaine from "D." Detective Smith also observed this transaction. The CW then returned to Detective Smith's vehicle.
Soon thereafter, Detective Smith and the CW then located "D" at a nearby espresso stand. Detective Smith requested that a uniformed police officer, Officer Chris Kelley, contact "D" and obtain his identification. Officer Kelley contacted "D," and another uniformed officer indicated that the suspect's name was Dewayne Morris. While Morris was standing with Officer Kelley, Detective Smith and the CW conducted a "showup," meaning that Detective Smith drove the CW past Morris to see if the CW could identify him as the correct suspect. The CW did not have any doubt that Morris, the person stopped by Officer Kelley, was the same individual who had twice sold the CW cocaine earlier that day.
Detective Smith created a photograph montage containing six photographs, one of which pictured Morris. Morris was the only individual shown in the photomontage who had neck tattoos. Three days later, on April 9, 2007, the CW identified Morris in the photomontage.
One of the neck tattoos reads "DeWayne."
Morris was subsequently charged with two counts of a Violation of the Uniform Controlled Substances Act. Morris sought to suppress the photographic identification, the showup identification, and an in-court identification. After a pretrial hearing, the trial court denied the motion.
At trial, prior to viewing the photomontage, the CW identified Morris as the person who had sold the CW cocaine on April 6, 2007. The CW testified at trial that he was absolutely certain that the person he selected out of the photomontage was the man who sold him cocaine on April 6, 2007.
On cross-examination, the CW testified that whenever he views photomontages, he goes in with doubt and looks at each picture carefully to ensure that any identification he makes is accurate.
A jury convicted Morris as charged. Morris appeals.
II
Morris contends that the trial court erred by admitting evidence of the photomontage. We disagree.
We review for abuse of discretion a trial court's admission of identification evidence. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001).
Admission of an out-of-court photographic identification violates a defendant's due process rights if the photographic identification is "`so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.'"State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002) (quoting State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999)). The defendant bears the burden of establishing both that the identification procedures were impermissibly suggestive and that, as a result, there is a substantial likelihood that misidentification occurred.State v. Courtney, 137 Wn. App. 376, 385, 153 P.3d 238, 243 (2007), review denied, 163 Wn.2d 1010 (2008).
Where the photomontage is impermissibly suggestive, the trial court must then determine whether there is a substantial likelihood of misidentification. Courtney, 137 Wn. App. at 385-86. In making this determination, the trial court is to consider the following factors:
(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.
Linares, 98 Wn. App. at 401; see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
Here, as the trial court found, the photomontage was suggestive. The only photograph in the photomontage showing a person with a neck tattoo was the photograph of Morris.See, e.g., Kinard, 109 Wn. App. at 433-34 (holding that photomontage was suggestive where only photograph showing a person with prominent gapped teeth was of the defendant).
A suggestive procedure is "one that directs undue attention to a particular photo." State v. Eacret, 94 Wn. App. 282, 283, 971 P.2d 109 (1999).
However, as the trial court found, there was not any likelihood of misidentification. The trial court found that, within a thirty minute time period, the CW twice purchased suspected cocaine from a man he described as a light-skinned black male, approximately 30 years old, with a goatee, a light blue short sleeved shirt, tan pants, and neck tattoos. The trial court also found that the CW identified Morris as the seller during the showup, that the CW identified Morris as the seller in the photomontage, and that the CW was certain that Morris was the person who had twice sold him cocaine. The trial court found that the CW had two opportunities to see the dealer and, although the transactions were brief, the CW was able to identify the dealer the second time that he saw him. The trial court also found that the time between the crime and the confrontation was a short period of time. While the trial court indicated that the CW's prior description and Detective Smith's prior description were "not entirely congruent," the only distinctions are a slightly different estimate in the dealer's weight and that Detective Smith, from his observation point, 75 to 100 feet away from the transaction, did not report that the dealer had neck tattoos. The trial court's findings of fact are all supported by substantial evidence in the record.Kinard, 109 Wn. App. at 434.
The trial court properly applied the required test.Kinard, 109 Wn. App. at 434. Although the photomontage identification was suggestive, this suggestiveness did not create a substantial likelihood of misidentification. Accordingly, the trial court did not abuse its discretion in admitting evidence of the photographic identification.
III
Morris also contends that the trial court erred by allowing the CW to make an in-court identification. We disagree.
The showup identification was not impermissibly suggestive and the photographic identification did not create a substantial likelihood of misidentification. Therefore, the earlier out-of-court identifications could not have tainted the CW's in-court identification. See State v. Vaughn, 101 Wn.2d 604, 610-12, 682 P.2d 878 (1984).
Affirmed.