Opinion
Nos. 26665-2-II, c/w 26635-1-II.
Filed: May 17, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-04499-3, Hon. Terry D. Sebring, October 27, 2000, Judgment or order under review.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney At Law, 2522 No. Procter St, Box 304, Tacoma, WA 98406.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Dep Pros Atty, Rm 946, 930 Tacoma Ave, Tacoma, WA 98402-2171.
Russell Pernell appeals his conviction of second degree burglary, claiming he was denied a fair trial because the trial court admitted impermissibly suggestive photomontage evidence, and denied him the opportunity to secure a witness essential to his defense. We affirm.
This court consolidated Pernell's personal restraint petition, No. 26635-1, with this appeal. His petition also challenges the trial court's decision to continue the trial without an essential witness.
Facts
Following a suppression hearing, the superior court entered extensive undisputed findings of fact. Because they are undisputed, we recite them here, adding additional facts developed during the trial:
Pernell faced a charge of second degree burglary, a violation of RCW 9A.52.030. That statute provides:
(1) A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling.
(2) Burglary in the second degree is a class B felony. 3Washington case law has developed out of three Supreme Court cases: Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
These factors are:
(1) the witness's opportunity 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.
State v. Maupin, 63 Wn. App. 887, 897, 822 P.2d 355 (1992).
THE UNDISPUTED FACTS
On September 27, 1999 Patricia Lautenschlager and Sheila Swanson were teaching at Lowell Elementary School in Tacoma, Washington. At approximately 12:15 pm. they returned from lunch and entered Lautenschlager's classroom. Lautenschlager then walked into the coat room of her classroom and found herself face to face with a black male squatting down as if he were hiding. The man was approximately five feet away from her when they looked directly at each other. The two teachers immediately ran from the room and began screaming for someone to call the police. The man was also observed by Robin Soto, who had heard the teachers screaming while she was walking with her daughter near the school.
According to the police testimony, the teachers described the man as a 20-25 year old, light-skinned, black male with black braided hair, a plaid shirt and vest and was 6'2' tall and weighed 170 pounds. The defendant is 35 years of age, but looks younger. The report was silent regarding who described him as having braided hair. There was no mention of facial hair except that he appeared unshaven. There was no description of the man by Robin Soto in the police reports, but she described the car in which the suspect made his getaway and a description of the car was contained within the police reports. Robin Soto was approximately 40-50 feet away from the suspect when she observed him. When Detective Lynch interviewed the witnesses later and showed them a photo montage none of them mentioned the suspect having braided hair.
Based upon the police reports and his prior knowledge of the defendant's appearance and crimes he had committed in the past, Detective Lynch determined that the defendant was a suspect in the burglary and began looking for him. He located the defendant on September 29, 1999, and had the defendant stopped by a patrol unit. The car in which the defendant was driving matched the description given by Robin Soto. The vehicle observed by Robin Soto at the scene of the burglary had the same license number as the car in which the defendant was stopped on September 29, 1999, except for the last letter. Robin Soto also reported that when the black male entered the car for his escape he entered through the drivers side window. When Detective Lynch contacted the defendant on September 29, 1999, the defendant exited the vehicle through the driver's side window. At the time the defendant was stopped on September 29, 1999 he did not have braids, he did have facial hair and his hair was described as a blondish, light brown.
Detective Lynch then prepared a photographic montage and showed the montage to Patricia Lautenschlager and Robin Soto. He did not show it to Sheila Swanson because she indicated she did not get a good enough look at the person to identify him. Patricia Lautenschlager identified the defendant and Robin Soto identified another person in the montage after having difficulty determining whether the defendant or another person should be picked from the montage.
Clerk's Papers (CP) at 174-77.
At trial, Soto and Lautenschlager identified Pernell in court as the person they had seen on September 27, 1999. Lynch testified that Pernell denied any involvement, stated that he had been with his girlfriend all day, and claimed that it was a case of mistaken identity.
Kenneth Chang, the owner of the Travel Inn Motel in Tacoma, testified that Pernell stayed at his motel on September 25 and 26, 1999, and that Pernell checked out before 11:00 a.m. on the 27th. He also testified that Pernell did not register a vehicle and that his policy is to tow away all unregistered vehicles.
Bobbi Jean Kinard, Pernell's sister, testified that Pernell and his girlfriend visited her about 11:30 a.m. on September 27, 1999; that they stayed about five minutes; and that they then left on foot to go to the girlfriend's father's house a few blocks away. Chang, Kinard, and Pernell's hairdresser testified that they had never seen Pernell with braided or black hair.
In preparation for trial, defense counsel served Sandra Horace with a subpoena on August 4 and August 9, 2000. Horace was Pernell's girlfriend on September 27, 1999, and apparently would have testified that she spent the evening of September 26, 1999, and all day September 27, 1999, with him.
Defense counsel contacted Horace's father on August 9 and August 10 and both times her father said that he would remind her about court. But when trial commenced on August 10, 2000, Horace did not appear and the police officers were unable to locate her. On Tuesday, August 15, defense counsel moved for a continuance until the following Monday because he had learned that Horace could possibly be in an out-patient program at a local alcohol treatment facility. The trial court signed a subpoena for the facility to release information on whether Horace was a patient, but denied the continuance motion. Instead, it allowed defense counsel until the next morning to see if he or the police could locate Horace.
The next morning, Wednesday, August 16, defense counsel moved again for a continuance because Horace was supposed to attend A.A. meetings at the treatment center on Tuesdays and Thursdays. The treatment center provided addresses for Horace, but these were the same addresses the police officers had already tried. The court denied the motion, ruling:
I guess what I'm saying, to put it succinctly, is I don't have any belief that waiting another day is going to increase our odds of having this witness present. I stated my concerns yesterday, not about defense counsel participating, but just the fact that this is the defendant's girlfriend and she's apparently not willing to come down and testify, according to the representations given to others.
. . . .
I really don't know what's going on and I'm just reluctant to take another day. We've already had an additional day, in effect, granted because I had to go to Port Orchard. I'm not willing to drag it out another day, so I'm denying the Defense request.
Report of Proceedings at 235-36. Pernell then moved for a mistrial, which the court denied. The defense then rested and the jury returned a guilty verdict.
Analysis 1. Photomontage
Pernell first argues that the trial court erred in admitting evidence that Lautenschlager picked out his photograph from a photomontage and that Soto had narrowed her choice to Pernell or another subject before choosing the other subject. He argues that the police procedure was impermissibly suggestive and created a substantial likelihood of irreparable misidentification. United States v. Wade, 388 U.S. 218, 302, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (improper photomontage can violate due process).
We recently clarified the standard of review on the admissibility of photomontage evidence in State v. Vickers, 107 Wn. App. 960, 967, 29 P.3d 752 (2001), review granted, No. 71667-6 (2002):
An out-of-court court photographic identification meets due process requirements if it is not so impermissibly suggestive as to create a substantial likelihood of irreparable misidentification. State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999) (citing State v. Vaughn, 101 Wn.2d 604, 682 P.2d 878 (1984)), review denied, 140 Wn.2d 1027, 10 P.3d 406 (2000); State v. Weddel, 29 Wn. App. 461, 476-77, 629 P.2d 912 (1981). Vickers bore the burden of first showing that the procedure was impermissibly suggestive. Linares, 98 Wn. App. at 401 (citing Vaughn, 101 Wn.2d 604). When a defendant fails to show impermissible suggestiveness, the inquiry ends. Vaughn, 101 Wn.2d at 609-10.
Vickers, at 967. We further explained that '[o]nly after the defendant first shows impermissible suggestiveness does the inquiry turn to whether the identification was nevertheless reliable, using the Biggers factors.[3] Vaughn, 101 Wn.2d at 610-11.' Vickers, at 967 n. 10.
As to the first step:
A defendant objecting to a photomontage as suggestive, must show that the montage directs undue attention to a particular photograph. State v. Eacret, 94 Wn. App. 282, 283, 971 P.2d 109 (1999). Generally, courts have found lineups or montages to be impermissibly suggestive solely when the defendant is the only possible choice given the witness's earlier description. See State v. Traweek, 43 Wn. App. 99, 103, 715 P.2d 1148 (1986), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991) (robber described as blond; defendant was the only blond man in lineup); State v. Burrell, 28 Wn. App. 606, 611, 625 P.2d 726 (1981) (suspect described as having frizzy Afro hairstyle; defendant was the only subject in montage with that distinctive characteristic).
State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343, petition for review pending, No. 72237-4 (2002). Here, the trial court made three findings on suggestiveness:
1. The photographs in the montage show individuals with physical characteristics similar to the defendant.
. . .
3. The photo montage was not unduly suggestive.
4. The procedures used in creating and presenting the photo montage were not unduly suggestive.
CP at 176.
Pernell argues that the photomontage was unnecessarily suggestive because: (1) he is the only subject resembling the eyewitnesses' description; (2) he appears younger than the other subjects and the only one appearing to be 20-25 years old; (3) he is the only light-skinned black male; (4) he and only one other subject appear to be tall and skinny as would be a six-foot-two, 170 pound man; (5) he is the only one with hair long enough to braid; (6) he is the only subject without facial hair; (7) his photograph stands out by being in the corner next to the only subject that could conceivably match the description; and (8) none of the subjects have facial features similar to his.
But the record and our review of the photomontage support the trial court's decision. First, the photomontage is black and white, which appears to minimize differences in tone color, as all the subjects have similar skin tone. All the photographs are the same size, all have the same background, and all are of black males. Three of the subjects have short hair and three have longer hair, none have braids, including Pernell. All have some facial hair, including Pernell. All appear to be the same height and only one appears to be heavier than 170 pounds. While the subjects appear to vary in age, Pernell is not the only subject who appears to be in his early-to-mid twenties.
We also note that Detective Lynch testified that the photomontage was computer-generated based on photographic comparisons, not based on the witnesses' descriptions. There was no evidence at trial that the procedure of creating and generating the photomontage was unduly suggestive and there was no evidence that Detective Lynch made any verbal or physical suggestion that the witnesses should choose Pernell's photograph. Thus, the only issue is whether the photomontage itself was unduly suggestive. We find no error in the trial court's decision because Pernell's photograph was not the only possible choice given the witnesses' earlier description. Ramires, 109 Wn. App. at 761.
Because Pernell failed to show that the photomontage was unnecessarily suggestive, we need not address whether the identifications were reliable. Vickers, 107 Wn. App. at 967.
2. Defense Witness
Pernell next argues that the trial court's denial of his final motion for a continuance in order to secure Horace's attendance at trial denied him his right to compulsory process in violation of the United States and Washington State Constitutions.
When a defendant alleges that the trial court's decision to deny a continuance deprived him of his constitutional right to compulsory process, we examine whether the accused can show that the denial caused him prejudice and/or that the trial result would have differed had the continuance been granted. State v. Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123 (1994). In other words, the critical inquiry is whether the decision denied the defendant a fair trial because he would not have been convicted had the witness testified. State v. Lane, 56 Wn. App. 286, 296, 786 P.2d 277 (1989).
Here, we find no error. As set out above, defense counsel, the court, and the police took significant efforts to secure Horace's testimony. And there is no alleged lack of diligence.
Further, Pernell's claim is speculative. Nothing in the record shows that if the trial court had granted another continuance, Horace would have testified. Even assuming the police had been able to find Horace, arrest her, and hale her into court, there is no basis to conclude that she would have testified as Pernell postulates. What the record does show is that Horace did not want to testify; it does not show that she would have provided Pernell an alibi.
Nevertheless, Pernell was able to present a defense. The motel owner testified that Pernell was staying there on September 27 and Pernell's sister testified that he came to visit her that day. Further, Detective Lynch testified that when he questioned Pernell about the burglary, Pernell explained that he was with his girlfriend that day and did not commit the burglary. Further, both the motel owner and Pernell's sister testified that Pernell and his girlfriend were on foot and did not have a car that day.
Further, the State's evidence was strong. Lautenschlager, who had the best look at Pernell, identified him in both the photomontage and in court. While Pernell was older than the suspect description, he actually appeared much younger than his age. He was tall and thin as described and his car matched the suspect's. Both Pernell and the suspect entered and exited the car through the driver's side window and the license plate number of the get-away vehicle was identical except for one letter. Given the speculative nature of Horace's testimony and the strength of the State's case, we find no likelihood that Horace's testimony would have changed the trial outcome.
Affirmed, petition denied.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: BRIDGEWATER, J., ARMSTRONG, J.