State v. Taylor
State v. Taylor
Opinion of the Court
Anthony W. Taylor appeals his convictions for first degree burglary and first degree assault, contending the trial court erred in (1) admitting evidence of a pretrial photographic identification by the victim and (2) excluding the proposed testimony of his expert witness as to factors affecting the reliability of eyewitness identification. We reverse and remand for a new trial.
Facts pertinent to this appeal are as follows: Late in the evening of June 4, 1985, Frank Price, a 79-year-old widower, was awakened by a noise and his dog's barking. He got up, looked around the house, and went back to bed. When he was reawakened by his dog's growling, he got up, turned on the light above his bed, went to the foot of the bed, and was confronted by a man pointing a gun at him. Mr. Price was standing 6 to 8 feet away from the man. He could not see the man's face because he was holding the gun directly in front of his face. The man fired the gun twice, but it misfired. He then asked Mr. Price where he kept his money; he told him it was in the lower drawer in
Mr. Price was able to crawl to his next-door neighbor's for help at approximately 11:30 p.m. The neighbors called 911; the police and an aid car arrived shortly thereafter. Mr. Price described his assailant to a police officer as a white male, 35 years of age, 5 feet 8 inches tall, and with long hair. He told the officer he did not know the assailant.
Detective Glen Gilbert compiled 29 arrest photographs to show Mr. Price. Although he usually uses only 6 photos, he chose 29 because he had no idea of the intruder's identity and was seeking identification factors. He did not contemplate that "the suspect" was within those photographs. He admitted in all probability none of those pictured was 35 and they were probably considerably younger. Two of the photos were of Mr. Taylor; one other man also appeared twice. The detective included Mr. Taylor's photos because he was told by another detective, who had had contact with Mr. Taylor, that he was a good suspect. One of the photos of Mr. Taylor was taken in 1981 and the other about a week before this incident.
Detective Gilbert visited Mr. Price in the hospital on June 7. He testified Mr. Price's face and nose were swollen, one eye was completely shut, the other eye barely open, he had an I.V. in his arm, a mask on his face, and his speech was slow and garbled. The hospital listed his condition as critical. Mr. Price carefully looked at the photographs and set four aside. He studied the four he had set aside and picked Mr. Taylor's photo, taken a week before this incident, and commented, "that's him, but I don't remember the mustache." Mr. Taylor was arrested later that day.
In an effort to confirm this identification and to satisfy himself of Mr. Price's selection, Detective Gilbert returned to the hospital 3 days later and again showed Mr. Price the
At trial, Mr. Price testified that the shooting had affected his eyesight, his senses of smell and taste, and left one side of his face paralyzed. He also had double vision in his left eye. He remembered having been shown the photographs one time, not two, and stated he was "fairly sure" he had chosen the photo of the man who had shot him. The prosecutor brought Mr. Taylor forward to stand in front of Mr. Price. When asked if this was the man who had shot him, Mr. Price replied: "His eyes look a little like the man who shot me, but I don't know if he had a mustache. It looks a lot like him. I'm not positive this is the man." When asked how sure he was, Mr. Price said "80 percent."
There is other testimony that Mr. Taylor worked at several fast food restaurants sometimes frequented by Mr. Price; that Mr. Price lived within a few blocks of Mr. Taylor's residence; that experts were unable to identify any screwdriver marks on Mr. Price's window with the screwdrivers found in Mr. Taylor's possession and did not find any paint chips or other materials from Mr. Price's house on Mr. Taylor's clothing. The police had found some cigarette butts on Mr. Price's lawn which were of the same generic brand as a cigarette package found in Mr. Taylor's car. However, there was no evidence of a saliva test or any other type of test that would connect the cigarette butts from Mr. Price's curtilage to Mr. Taylor.
Mr. Taylor first contends the trial court erred in admitting evidence of the pretrial photographic identification by Mr. Price. Such a procedure may violate due process if the procedure, under the totality of circumstances, is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968)). Although the findings of the trial court are of great significance, this court must independently evaluate the evidence. State v. Rogers, 44 Wn. App. 510, 515, 722 P.2d 1349 (1986). Reliability is the linchpin in determining the admissibility of pretrial identifications. Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); State v. Hanson, 46 Wn. App. 656, 664, 731 P.2d 1140 (1987). We must first determine whether the procedure was impermissibly suggestive; if so found, then we must review the totality of the circumstances to determine whether that suggestiveness created a substantial likelihood of irreparable misidentification. State v. Traweek, 43 Wn. App. 99, 103, 715 P.2d 1148, review denied, 106 Wn.2d 1007 (1986); State v. McDonald, 40 Wn. App. 743, 746, 700 P.2d 327 (1985).
We do not find the photographic procedure to have been impermissibly suggestive. First, although the photographs displayed probably did not match the initial description given by Mr. Price, the purpose of the display was not to identify a suspect, but was an effort to compare facial characteristics and perhaps obtain a composite description that would ultimately identify the assailant. Thus, the number
Given the light color of Mr. Taylor's mustache, it is understandable why Mr. Price might not have observed it while confronting an intruder pointing a gun at him in his bedroom shortly after 11 p.m. While there is a difference in the age description given and Mr. Taylor’s true age, we find nothing unusual about that. Last, although Mr. Price claimed his assailant had long hair, a 79-year-old may have his own interpretation of what is long hair and what is not.
Second, the fact that two of the photographs included in the stack were of Mr. Taylor is not significant. The two photographs were taken 4 years apart and Mr. Taylor's appearance had changed considerably. Furthermore, the fact that these were 2 of 29, not 2 of 4 or 6, reduces the chance that the repetition is suggestive. Thus, under these circumstances, the fact Mr. Taylor was pictured twice would not make Mr. Price more likely to choose him.
Third, the fact the second identification involved the same 29 photographs, in and of itself, is not impermissibly suggestive. Although we recognize that recurrent photographic identification procedures may be suggestive in that they increase the risk of misidentification,
Mr. Taylor next contends the trial court erred in excluding the proposed testimony of Dr. Geoffrey Loftus, a psychologist, as to factors affecting the reliability of eyewitness testimony. His offer of proof indicated Dr. Loftus would testify as to the effects of stress (including violence and fear), age, and weapon focus on human memory and perception. Also, he would explain the doctrine of unconscious transference whereby a witness may recognize a person because he saw him elsewhere around the time of the crime and now mistakenly identifies that person as having committed the crime. There was nothing in the offer of proof relating to Mr. Price's individual characteristics since Dr. Loftus neither had interviewed Mr. Price nor was overly cognizant of the facts of this crime.
ER 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
First, the admissibility of expert testimony is always within the sound discretion of the trial court and its admissibility or denial will be reversed only on an abuse of that discretion. Group Health Coop. of Puget Sound, Inc. v. Department of Rev., 106 Wn.2d 391, 397, 722 P.2d 787 (1986). "'If the reasons for admitting or excluding the opinion evidence are "fairly debatable", the trial court's exercise of discretion will not be reversed on appeal.'" Group Health, at 398 (quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)).
Recently, however, this court in State v. Moon, 45 Wn. App. 692, 697, 726 P.2d 1263 (1986) recognized a growing trend in other jurisdictions that the exclusion of such testimony is an abuse of discretion in a very narrow range of cases: "(1) where the identification of the defendant is the principle issue at trial; (2) the defendant presents an alibi defense; and (3) there is little or no other evidence linking the defendant to the crime." See United States v. Moore, 786 F.2d 1308 (5th Cir. 1986); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); United States v. Smith, 736 F.2d 1103 (6th Cir. 1984); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); People v. Brown, 40 Cal. 3d 512, 726 P.2d 516, 230 Cal. Rptr. 834 (1985); People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal. Rptr. 236 (1984); Bloodsworth v. State, 307 Md. 164, 512 A.2d 1056
First, there is no dispute the identification of Mr. Taylor as Mr. Price's assailant was the principle issue at trial. Second, Mr. Taylor presented an alibi defense supported by his wife and his mother-in-law. Third, as explained previously, there was little other evidence linking Mr. Taylor to the shooting of Mr. Price. The difference in the description given by Mr. Price and Mr. Taylor's actual appearance — his degree of certainty in his identification and the fact that most of this time the weapon was in his face — further supports our conclusion the testimony of Dr. Loftus was critical to Mr. Taylor's case. See Moon, at 698-99. Mr. Price's identification of Mr. Taylor, who lived in the same neighborhood as Mr. Price, may be plausibly explained by the doctrine of unconscious transference.
State v. Johnson, 49 Wn. App. 432, 439, 743 P.2d 290 (1987) has added one criterion to Moon, namely, "they will involve fact patterns which are close and confusing, and which 'cry out' for an explanation". (Footnotes omitted.) In those instances, expert testimony may be of assistance to the jury. While in Johnson, the court had exercised its discretion in allowing some of this testimony and excluding other, here, the court excluded all of Dr. Loftus' testimony. Further, in Johnson there were four separate victims of four separate crimes, each of whom identified the defendant. We find, on this record, that the testimony regarding
Recognizing that neither Moon nor Johnson had been decided when this case was tried, we are constrained to find an abuse of discretion in not allowing Dr. Loftus' testimony.
We reverse and remand for new trial.
Webster, J., concurs.
See, e.g., State v. Boucino, _ Conn. _, 506 A.2d 125, 133 (1986); People v. Kubat, 94 Ill. 2d 437, 447 N.E.2d 247, 262 (1983); State v. Dillard, 355 N.W.2d 167, 174 (Minn. Ct. App. 1984); State v. Maher, 72 Or. App. 543, 696 P.2d 573, 575 (1985).
Neither party raises the applicability of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), although the standard for determining the admissibility of scientific evidence has been adopted in Washington. See State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984) (hypnotically aided testimony); State v. Canaday, 90 Wn.2d 808, 812-13, 585 P.2d 1185 (1978) (retesting of Breathalyzer ampules); State v. Woo, 84 Wn.2d 472, 473, 527 P.2d 271 (1974) (polygraph examination). The applicability of Frye is discussed in some of the cases cited in this opinion, but because that standard is not raised here, we need not discuss it.
Dissenting Opinion
I dissent. The trial court's exclusion of the expert testimony on eyewitness identification was proper, and I would affirm.
The offer of proof by Dr. Geoffrey Loftus was, for the most part, an extremely general discourse on memory. Specifically, Dr. Loftus only opined in conclusory fashion that (1) stress can impair mental functioning, (2) older individuals are substantially less able to carry out any task involving cognitive abilities, (3) the term "weapon focus" means that one will "tend to pay attention to the weapon at the expense of other objects . . . such as the face," and (4) "unconscious transference" refers to a phenomenon in which "you remember — you recognize information, let's say a face that you have seen before . . . but you place it at the wrong place in time."
The trial court noted that the testimony
doesn't add anything to what has already happened here. I might feel differently if he had more information about this particular case, if he had in fact talked to the victim . . . because the issue isn't so much whether or not what he had to say is true but whether or not the concerns of memory would apply to this case.
The court concluded that the testimony would not assist the trier of fact.
Turning to the case before us, I see no serious discrepancies requiring explanation. The victim described his assailant as about 35 years old and 5 feet 9 inches to 5 feet 10 inches. Taylor is 24 years old and 5 feet 8 inches. The physical differences between a man in his mid-twenties and mid-thirties are frequently subtle, and may seem particularly so to a 79-year-old. This is hardly the sort of "discrepancy" which requires expert explanation.
While this may be a weak case, it is not confusing. Furthermore, Dr. Loftus' proffered testimony would still have to be of assistance to the trier of fact in order to compel the admission of the expert testimony. Here, the jury could easily conclude that being robbed and shot in one's own bedroom is a stressful event which could affect memory. Likewise, the prominence of the weapon was acknowledged by the victim's own testimony, making any further testimony on "weapon-focus" superfluous. The victim's physical impairments, advanced age, and the generally tentative nature of his testimony also established in themselves the possibility
Finally, there was an insufficient factual foundation for admission of testimony on the doctrine of "unconscious transfer." Defense counsel elicited from the victim only the fact that he had, at some unspecified time, gone to Denny's, Wendy's, and Chicago Red Hots in the Lake City area. The record is totally silent on how often, when, and which ones. The defendant then testified only that he had, at one time
In summary, this case does not fall within the narrow range of cases where exclusion of the testimony was error. I would affirm.
Dr. Loftus also discussed a number of other influences on memory, such as the use of drugs, the effect of amnesia, and the effect of bias in questions or tests, none of which bore any apparent connection to the facts in this case.
The confusion over the mustache is not a "discrepancy" of the sort discussed in Moon. Here, it was the victim himself who spontaneously noted, while making his initial identification of Taylor, that he didn't remember the mustache. Thus, no unconscious forces appeared to be at work which required explanation.
Dr. Loftus' testimony would have added little more, since Dr. Loftus had never interviewed the victim or obtained any specific information about his cognitive functioning. Thus, nothing connected these generalities about older persons with the particular person in this case.
The record is replete with evidence that Taylor's work record was one of employment for very brief periods.
Reference
- Full Case Name
- The State of Washington, Respondent, v. Anthony William Taylor, Appellant
- Cited By
- 15 cases
- Status
- Published