Opinion
No. 54239-7-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-05452-2. Judgment or order under review. Date filed: 04/23/2004. Judge signing: Hon. Joan B Allison.
Counsel for Appellant(s), Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Deavondia Taylor was convicted of one count of first degree robbery and one count of second degree robbery. He challenges the former on grounds that the trial court erred by admitting impermissibly suggestive and unreliable identification evidence, and the latter on grounds that the conviction is unsupported by sufficient evidence. We reject both arguments, and affirm.
BACKGROUND
Deavondia Taylor was charged with two counts of first degree robbery and one count of second degree robbery for his participation in a series of robberies that occurred during one night in March 2003. Taylor was acquitted of the first of these offenses; we describe the facts only as to the two for which he was convicted.
Brendan Barr was approached at night by three young African-American men while he waited for a bus near Northgate mall. The men asked Barr the time and the bus's anticipated arrival time. Then one pulled out a gun and demanded Barr turn over his property. Two of the men began grabbing for Barr's shoulder bag, and Barr gave them his wallet. Barr watched the men as they ran to a newer white four-door car and drove away. Barr took the bus home and called 911.
Later the same night, Abraham Castillo was confronted by three young African-American men as he walked along 15th Avenue N.E. One of the men pulled him to the ground from behind. Two of the men shouted at him, grabbed at his pockets, and threatened to shoot him. Castillo testified that the third man said nothing, but appeared to be supervising. This man had a bulge sticking out of his shirt that Castillo believed was a gun. When the men had taken Castillo's property, a white car pulled up and stopped. The men threw Castillo's property in the trunk and got in the car. Castillo was able to read the car's license plate when it stopped for a stop sign. He called 911 from a pay phone and reported the license number and a limited description of his assailants.
Officer Jason Thompson spotted a white sedan with a close variation of the license plate number reported by Castillo. The car pulled into a driveway on Aurora and the four occupants began to get out. Thompson pulled in behind them, activated his emergency lights and exited the car, and ordered the men to the ground. One of the men ran, but the others complied. After backup officers arrived, some were sent to bring the robbery victims to the scene for a show-up identification.
The officer who brought Barr to the location informed him that the suspects he would view might have been involved in other robberies that night. Barr stated he was "fairly certain" Taylor was the person with the gun, but could not identify any of the other men he was shown. Like Barr, Castillo was informed the three suspects were possibly involved in other robberies. Castillo later testified this gave him confidence when he identified all three men as the robbers.
Before trial, Taylor and his codefendants moved to exclude the eyewitness identification evidence on grounds that the procedures employed by police were impermissibly suggestive and resulted in unreliable identifications. As to Barr, the court found the identification procedures were impermissibly suggestive, but admitted the evidence because there was no substantial likelihood of irreparable misidentification. The court suppressed the evidence of Castillo's identification, finding the procedure was both impermissibly suggestive and unreliable.
After a jury trial, Taylor was acquitted of the charge stemming from the first robbery, and otherwise convicted as charged.
DISCUSSION
Identification Evidence. Taylor first contends the court erred by admitting evidence of Barr's identification of Taylor at the show-up. We review the trial court's findings of fact on a motion to suppress to determine whether they are supported by substantial evidence, and if so, whether the findings support its conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
To establish a due process violation, a defendant must show that an identification procedure is suggestive; upon such showing, the court must determine whether, under the totality of the circumstances, the suggestiveness created a substantial likelihood of misidentification. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999) (citing State v. Vaughn, 101 Wn.2d 604, 682 P.2d 78 (1984)). In making this determination, courts consider: (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. Brathwaite, 432 U.S. at 114; Linares, 98 Wn. App. at 401.
As noted above, the trial court concluded the procedures employed during Barr's identification were impermissibly suggestive. We turn, therefore, to the five factors concerning the reliability of the identification. First, although Barr's opportunity to view the perpetrator at the time of the crime was brief, Barr testified he looked at the face of the man with the gun for a "long moment." Report of Proceedings (RP) (Feb. 26, 2004) at 4. Second, the record indicates Barr was attentive during the encounter even though he was scared. Barr testified his attention was fixated on the person with the gun, and while he was more fixated on the gun, he was looking at the man's face as well. As for the third factor, the court found there had been no evidence presented about the accuracy of Barr's prior description. The fourth factor concerns the witness's level of certainty. Barr testified he was "fairly certain" about the person he identified with the gun. RP (Feb. 26, 2004) at 11. As Taylor points out, Barr initially told police he was "very certain" of his identification, but changed his report because he did not want "to seem overzealous and say that I was absolutely certain when there was still some question in my mind." RP (Feb. 26, 2004) at 22. This clarification does not undermine the reliability of Barr's identification, but rather demonstrates the witness's carefulness and appreciation of the consequences of his identification. Finally, less than two hours had passed between the robbery and the identification.
The State does not challenge this finding, which is a verity on appeal. Ross, 106 Wn. App. at 880.
The State developed this evidence at trial. Barr described the gunman as having a goatee and possibly glasses; a photograph admitted at trial shows Taylor with a goatee at the time of his arrest. See Exhibit 26, Clerk's Papers at 135, 139.
Considering these factors, we agree with the trial court that the suggestive show-up procedures did not create a substantial likelihood of irreparable misidentification. If it had, it is likely Barr would have identified all of the suspects. That he did not lends strength to the reliability of his identification. Moreover, the court found that Barr was a credible and conscientious witness who endeavored not to overstate the facts. We find no error.
Sufficiency of the Evidence. Taylor next contends there is insufficient evidence to support his conviction of second degree robbery as either principal or accomplice in the incident involving Abraham Castillo. The test for determining the sufficiency of the evidence is whether, after viewing all evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Taylor of second degree robbery, the jury had to find that he, or an accomplice, unlawfully took personal property from Castillo against his will by the use or threatened use of immediate force, violence, or fear of injury. RCW 9A.56.190. The bulk of the evidence on this charge comes from Castillo's testimony. Castillo testified he was robbed by three young African-American men who were all taller than five foot six. One of the men pulled him to the ground from behind. Two of the men shouted at him and demanded his property, threatening to shoot him if he did not comply. Castillo testified the third man did not say anything and did not physically take anything from him, but appeared to supervising the other two. The same man had a bulge in his shirt that Castillo believed to be a gun. Castillo saw the three men get into a white car that drove up after the robbery, and was able to note the vehicle's license plate. Castillo was able to give a limited description of his assailants: one wore a jacket with logos or patches, one wore an oversized blue and white shirt, and one wore a white or silver beanie. Castillo reported this information when he called 911.
Officer Thompson found that a car matching the description given by Castillo was registered under almost exactly the license plate number Castillo reported. When the officer stopped that car, Taylor was occupying the front passenger seat and wearing a blue and white beanie. Some of Castillo's belongings were at Taylor's feet, and a realistic looking air gun was found in the pouch behind the driver's seat. From this evidence, the jury could easily infer that Taylor was present during the robbery. Taylor argues that Castillo's inability to attribute any particular act to him proves at most his mere presence during the robbery, and correctly points out that mere presence at the scene of the crime is not enough to establish accomplice liability. State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981). Castillo's testimony indicates, however, that all three of the men present at the scene played a role in the robbery. If Taylor was there, then he was either one of the two grabbing at Castillo's pockets and shouting at him to give over his property, or he was the person acting as a supervisor with what appeared to be a firearm under his shirt. Taylor points out Castillo had reported neither his impression regarding the third man's supervisory role, nor his belief that the man carried a concealed firearm to the police at the time of the robbery. However, Castillo was cross-examined on this point and his credibility was an issue for the jury. Viewing the evidence in the light most favorable to the State, we are satisfied a reasonable fact finder could find Taylor guilty of robbery as either a principal or accomplice.
Castillo had mistaken a Q for an O in the license number, which Officer Thompson testified is a common error.
Affirmed.
ELLINGTON, APPELWICK and BAKER, JJ.