Opinion
No. 5-214 / 04-0546
Filed June 15, 2005
Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown and R. David Fahey, Judges.
Osborn challenges the district court's ruling denying his motion to suppress. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Christopher Osborn challenges the district court's denial of his motion to suppress a photo array. We affirm.
Osborn also challenged a restitution order, but withdrew the challenge after the State agreed to a reduced sum.
I. Background Facts and Proceedings
This case arises out of a burglary at the West Burlington home of Virgil Scott. Scott arrived home to find a van parked in his driveway and two men inside. Scott was attacked by one of the men and placed in the basement. He described his attacker as a "[l]ight skinned African American wearing white pants and . . . red hat." The burglars took a variety of items. After the house was clear, Scott called the police.
Police apprehended Osborn the same day. Early the following morning, officers asked Scott to identify his attacker from a six-picture photo array. Scott identified Osborn.
The State charged Osborn with burglary in the first degree. Iowa Code §§ 713.1, 713.3(1) (2003). Osborn moved to suppress the photo identification as "unnecessarily suggestive." The district court denied the motion and the case proceeded to trial before a jury. Osborn was found guilty as charged and sentenced accordingly. This appeal followed.
II. Suppression Ruling
Osborn contends that Scott's identification from a photo array violated the due process clauses of the United States and Iowa Constitutions. See U.S. Const. amend. XIV, Iowa Const. art. I, § 9. Because constitutional rights are implicated, we must independently evaluate the totality of the circumstances shown by the record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
The Iowa Supreme Court has described the applicable test as follows:
We use a two-step analysis of challenges to out-of-court identifications. First, we decide whether the procedure used for the identification was impermissibly suggestive. If we find that it was, we must then decide whether "under the totality of [the] circumstances the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification." The critical question under the second step is whether the identification was reliable. . . .
On the question of reliability, we give weight to five factors: (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.
State v. Taft, 506 N.W.2d 757, 762-63 (Iowa 1993) (internal citations omitted). The court has applied this test to challenges under both the United States and Iowa Constitutions. Id.
It appears that at least one federal court has also required a showing that the out-of-court identification was "necessary." See, e.g., Sumner v. Mata, 449 U.S. 539, 556, 101 S. Ct. 764, 774, 66 L. Ed. 2d. 722, 736-37 (1981) (Brennen, J., joined by Marshall and Stevens, JJ., dissenting) (discussing Ninth Circuit's adoption of this requirement). The Iowa Supreme Court alluded to this requirement in State v. Neal, 353 N.W.2d 83, 87 (Iowa 1984), but subsequent opinions speak only of the cited two-part test.
Osborn claims that the photo lineup is impermissibly suggestive because (1) "a yellow background" makes his photo "leap off the page/exhibit/photo array" in comparison with the other photos, and (2) Osborn was the "only light-skinned black male" — the description given by Virgil Scott — in the line-up. We disagree that Osborn was the only fair-skinned man in the array but, even if he was, this type of difference in physical appearance has not supported a finding of suggestiveness. See State v. Neal, 353 N.W.2d 83, 88 (Iowa 1984) (noting that even "startling differences" may not satisfy "suggestiveness" standard); State v. Nagel, 458 N.W.2d 10, 13 (Iowa Ct.App. 1990) (rejecting claim of suggestiveness based on distinctive physical characteristics of defendant). As for the photo's background, we agree with Osborn that the yellow shading of his photo accentuates that photo relative to the blue backgrounds of the other five pictures. This fact, however, does not render the array impermissibly suggestive. Neal, 353 N.W.2d at 89 (stating "characteristics of a photo such as a darker background or greater or sharper contrast are of no consequence in a suggestiveness claim"). The test is whether the " procedure used for the identification was impermissibly suggestive." Taft, 506 N.W.2d at 762 (emphasis added). The procedure used here was not impermissibly suggestive. The officer who prepared the photo array used a computer program to collect photos of black males in Osborn's age, height, and weight range. From that pool, he selected five pictures of individuals who, in his view, looked similar to Osborn. The officer turned the photo array over to another officer. The second officer provided Scott with a written advisory stating, "[t]he fact that the photographs are shown to you should not influence your judgment. You should not conclude or guess that the photographs contain the picture of the person who committed the crime." The presenting officer did not verbally supplement the information contained in the written advisory. Cf. Neal, 353 N.W.2d at 87 (stating a "statement by an officer that a lineup or array includes a possible suspect is a factor to be considered in determining whether the procedures were suggestive," but, "alone [it] does not taint the identification procedures"). Scott signed and dated the advisory. He was then shown the photo array. He immediately identified Osborn as his attacker.
There are numerous empirical studies and scholarly critiques of simultaneous photo arrays. See, e.g., David L. Feige, I'll Never Forget that Face: The Science and Law of the Double-Blind Sequential Lineup, CHAMPION, Jan./Feb. 2002 at 28. (Jan./Feb., 2002) (advocating use of sequentially presented rather than simultaneously presented photo arrays); Jake Sussman, Suspect Choices: Lineup Procedures and the Abdication of Judicial and Prosecutorial Responsibility for Improving the Criminal Justice System, 27 N.Y.U. Rev. L. Soc. Change 507 (2001-02). However, the United States Supreme Court and our courts have upheld the use of these arrays under various factual circumstances.
The previous day, this officer was called to the scene of a vehicle stop that resulted in Osborn's arrest. The fact that he knew who the attacker was before he showed Scott the photo array does not render the photo array impermissibly suggestive in the absence of evidence that the officer coached Scott. See Neal, 353 N.W.2d at 87 (noting officer "gave no indication which photograph depicted the suspect").
We conclude the officers made "[a] reasonable effort to harmonize" the photo array. See State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). This "is normally all that is required." Id.
Assuming the array could be deemed impermissibly suggestive, the question becomes whether, under the "totality of the circumstances," the identification procedures gave rise to a "very substantial likelihood of irreparable misidentification." Taft, 506 N.W.2d at 762. On this question of reliability, the record reveals the following facts; while the burglary was occurring, Scott saw the attacker's face for approximately one minute. Shortly after the burglary occurred, Scott told police that one of the perpetrators was a light-skinned black male wearing white pants and a red hat. At the police station, Scott signed an advisory essentially admonishing him not to draw conclusions from the photographs that were selected. Scott viewed the photo array approximately ten hours after the crime. Within a minute of viewing the photo array, and with no comment from the officer, Scott identified Osborn's picture.
We conclude there is little risk that the identification procedure "gave rise to a very substantial likelihood of irreparable misidentification." See State v. Thornton, 506 N.W.2d 777, 780 (Iowa 1993) (noting two witnesses picked defendant's picture within two hours of crime and showed no hesitation in making identification); Taft, 506 N.W.2d at 763 (finding identification reliable where identifying victims were "riveted to their assailant" in the midst of the crime and "would therefore remember defendant," and where witnesses' description was good enough to lead to defendant's arrest).
We reach this conclusion notwithstanding Scott's equivocation on the question of whether the photo presented at the suppression hearingwas the same as the one he was shown when he made his identification. Specifically, Scott testified that he could not "honestly say whether this is the exact one or not," but he believed, to the best of his recollection, that it appeared to be the same photo. Despite this equivocation, Scott was adamant that "[i]t's the same person" in both photographs. In addition, the officer who presented the photo array testified that the copy introduced at the suppression hearing was a "fair and accurate copy" of the array shown to Scott hours after the criminal act. Further, the officer that prepared the photo array testified that the police department had only one photo of Osborn. Under a totality of the circumstances test, Scott's uncertainty does not sufficiently counter the reliability of the identification procedure.
Finding no constitutional infirmity with the photo array, we affirm the district court's denial of Osborn's motion to suppress that array and affirm his judgment and sentence.