Opinion
No. 20474-0-III.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 01-1-00958-9. Judgment or order under review. Date filed: 08/31/2001.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.
Counsel for Respondent(s), Lauri Mcintire Boyd, Attorney at Law, Yakima Co Crths-Appel Div, 128 N 2nd St. Rm 211, Yakima, WA 98901-2639.
A jury found Fernando Joe Armendariz guilty of one count of residential burglary. Mr. Armendariz contends (1) a lengthy delay in preparing the verbatim report of proceedings violated his due process rights to a timely appeal, and (2) the trial court erred in admitting a suggestive photomontage. We affirm.
FACTS
On May 31, 2001, the State charged Mr. Armendariz with one count of residential burglary. Mr. Armendariz moved to suppress an identification of him through a photomontage. Subsequent to a CrR 3.6 hearing, the trial court denied the motion. The trial court later entered the following undisputed finding of fact:
On May 21, 2001, at approximately 9:30 p.m. Traci Mallory was home alone in her basement room at 1611 Summitview when she hear[d] noises coming from the upstairs. She walked upstairs and into the hallway and looked into her roommates bedroom and observed a Hispanic male carrying electronic equipment from the bedroom. They came face to face to one another, coming with[in] 5-8 feet, for approximately 30 seconds. Within a half an hour of the burglary, Traci Mallory described the male to Officer Michael Lindgren as Hispanic, wearing a white shirt and grey pants, approximately 5'-5' to 5'-8' in height, and 140-150 pounds in weight. His hair was short, his face was very pocked marked or had sores, and he had the word `Popeye' tattooed on his neck.
Clerk's Papers (CP) at 15.
On August 8, 2001, the jury found Mr. Armendariz guilty. On August 31, 2001, the trial court entered the above-quoted finding of fact from the CrR 3.6 hearing. On that same date, the trial court sentenced Mr. Armendariz to 84 months of confinement at the top of the standard range. Mr. Armendariz filed a timely appeal.
Court reporter Kelli Strickler was responsible for transcribing the report of proceedings for August 7 and 8, 2001, but she failed to produce them by the November 29, 2001 deadline. This court extended the deadline to December 16, 2001. After that deadline passed without compliance, this court imposed terms and extended the deadline again to January 7, 2002. When Ms. Strickler failed to comply with that deadline and failed to pay terms, this court imposed additional terms and ordered her to appear for a telephonic hearing before a commissioner of this court on April 2, 2002, continued to July 9, 2002, to show cause why the work was not completed and the terms not paid.
This court struck the telephonic hearing upon being advised Ms. Strickler would file the report of proceedings on July 9, 2002. She did not file the report of proceedings as promised; consequently, this court ordered Ms. Strickler to appear before the chief judge of this court in Yakima to show cause why she should not be held in contempt.
This court cancelled the show cause hearing upon being advised that the trial court arranged for an alternate court reporter to prepare the required report of proceedings. On October 9, 2002, the alternate court reporter submitted a report of proceedings she prepared from Ms. Strickler's transcription notes. Unfortunately, Ms. Strickler's notes were inadequate, which resulted in an unsatisfactory report of proceedings.
This court then ordered Ms. Strickler to appear before the chief judge of this court in Yakima on January 23, 2003, and show cause why she failed to complete her work and pay previously imposed sanctions. Ms. Strickler did not appear as ordered; consequently, this court found her in civil contempt and remanded the matter to the superior court `for the purpose of conducting proceedings consistent with the circumstances and premises of this order to achieve production of the necessary records.' Order (January 29, 2003). Finally, after incarceration, Ms. Strickler filed the required verbatim report of proceedings on March 14, 2003.
ANALYSIS A. Delayed Report of Proceedings
The issue is whether the delay in preparation of the verbatim report of proceedings constituted a violation of Mr. Armendariz's due process rights.
`Washington guarantees the right to appeal criminal prosecutions, and substantial delay in the appellate process may constitute a due process violation.' State v. Lennon, 94 Wn. App. 573, 577, 976 P.2d 121 (1999) (citing Const. art. I, sec. 22 (amend. 10); Coe v. Thurman, 922 F.2d 528, 530 (9th Cir. 1990)). In determining whether a delayed appeal denies due process, the appellate court considers `[1] the length of the delay, [2] the reason for the delay, [3] the defendant's diligence in pursuing the right to appeal, and [4] the prejudice to the defendant.' Lennon, 94 Wn. App. at 578 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Coe, 922 F.2d at 531-32; Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir. 1980)). `The length of the delay acts as a triggering mechanism, meaning that unless the delay is unreasonable under the circumstance, there is no necessity to inquire further.' Lennon, 94 Wn. App. at 578 (citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Barker, 407 U.S. at 530)). `In extreme circumstances, an inordinate delay may give rise to a presumption of prejudice.' Lennon, 94 Wn. App. at 578 (citing Doggett, 505 U.S. at 655-57).
In Lennon, this court reasoned a delay of 10 months was `not on its face unreasonable.' Lennon, 94 Wn. App. at 578. Here, the delay was more than 15 months, a period of delay closer to the point where consideration of the other three factors becomes necessary. See United States v. Smith, 94 F.3d 204, 209 (6th Cir. 1996) (discussing cases where appeal delays of 2 to 13 years were deemed to be egregious enough to require further inquiry). Given that the State concedes the delay in this case was `unusual,' discussion of additional factors is appropriate. Respondent's Br. at 7; see also Smith, 94 F.3d at 209 (accepting government's concession that three year delay justified further inquiry).
The reason for the delay was simple and frustrating to Mr. Armendariz, the State, and this court. For unexplained reasons, the court reporter delayed submitting her portion of the verbatim report of proceedings notwithstanding multiple warnings and sanctions from this court. See Lennon, 94 Wn. App. at 578. The delay was not the fault of either the State or this court. Id.
The State necessarily concedes the next factor; assisted by able counsel, Mr. Armendariz has been most diligent in pursuing his appeal. See id.
Notwithstanding the delay in preparation of the verbatim report of proceedings, Mr. Armendariz fails to show resulting prejudice. See id. The question of prejudice concerns three interests of a convicted defendant seeking a prompt appeal: (1) to prevent oppressive incarceration pending review; (2) to minimize the defendant's anxiety and concern; and (3) to limit the possibility that the grounds for the appeal or the defenses in the case of a retrial might be impaired. Lennon, 94 Wn. App. at 578-79 (citing Barker, 407 U.S. at 532; Smith, 94 F.3d at 207; United States v. Johnson, 732 F.2d 379, 382 (4th Cir. 1984); Rheuark, 628 F.2d at 303 n. 8).
Mr. Armendariz has merely alleged that he is unfairly incarcerated. In the delayed appeal context, more is required to show prejudice; incarceration after a finding of guilt does not implicate the same speedy trial concerns present when a defendant is awaiting trial. Lennon, 94 Wn. App. at 579. `His incarceration during the appeal does not require the same degree of consideration as the Sixth Amendment imposes on the period between arrest and trial.' Lennon, 94 Wn. App. at 579 (citing State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, 1226 (1983)). `It is not unusual for appellants to serve their entire sentences before their appeals are heard.' Lennon, 94 Wn. App. at 579.
Here, Mr. Armendariz has served a little over two years of a seven-year sentence. Without persuasive supported argument that the delay caused undue anxiety and concern, and that the delay had an adverse impact on the substantive underpinnings of his appeal, Mr. Armendariz `cannot show the degree of prejudice necessary to trigger due process protection.' Id.; see also Smith, 94 U.S. at 207.
B. Photomontage Identification
The issue is whether the trial court erred in admitting Ms. Mallory's photomontage identification of Mr. Armendariz.
`Admission of a photo identification or a photomontage is, reduced to its essence, the admission of evidence in a criminal case.' State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001) (citing State v. Tatum, 58 Wn.2d 73, 75, 360 P.2d 754 (1961)), review denied, 146 Wn.2d 1022 (2002). `It should therefore be subject to the sound discretion of the trial court.' Kinard, 109 Wn. App. at 432 (citing State v. Harris, 97 Wn. App. 865, 870, 989 P.2d 553 (1999)). `And the test, a deferential test, is whether there are tenable grounds or reasons for the trial court's decision.' Kinard, 109 Wn. App. at 432 (citing Harris, 97 Wn. App. at 870).
`An out-of-court photographic identification meets due process requirements if it is not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' State v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109 (1999) (citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977)); see also Kinard, 109 Wn. App. at 432-33.
`A two-step test is employed to determine whether a photo identification is so impermissibly suggestive that it creates a substantial likelihood of irreparable misidentification.' Kinard, 109 Wn. App. at 433. `First, the defendant must show that the identification procedure was suggestive.' Id. (citing State v. Barker, 103 Wn. App. 893, 905, 14 P.3d 863 (2000)). `The court must then determine if the suggestiveness created a substantial likelihood of irreparable misidentification.' Barker, 103 Wn. App. at 905 (citing State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999)).
Here, the trial court found the identification procedure was suggestive. The State does not contest that finding. We agree; Mr. Armendariz stands out in the photomontage because of his heavy acne scarring, a feature emphasized by Ms. Mallory but not so apparent in the photographs of the other suspects, and the tattoo, of which Ms. Mallory was informed prior to her viewing the photographs, and a feature absent from the other men depicted in the array. See Kinard, 109 Wn. App. at 433-34 (agreeing with trial court that photomontage was suggestive). `The next question is whether the suggestive montage created a substantial likelihood of irreparable misidentification.' Id. at 434 (citing Barker, 103 Wn. App. at 905; Linares, 98 Wn. App. at 401).
In determining whether a photomontage creates a substantial likelihood of irreparable misidentification, the court considers (1) the opportunity of the witness to gain a live view of the suspect prior to the photomontage viewing; (2) the witness's degree of attention at the initial live encounter; (3) the accuracy of the witness's prior description of the suspect; (4) the level of certainty demonstrated at the time of the photomontage viewing; and (5) the time between the initial live observation and the photomontage viewing. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Kinard, 109 Wn. App. at 434; Barker, 103 Wn. App. at 905; Linares, 98 Wn. App. at 401. `Each requires a factual finding.' Kinard, 109 Wn. App. at 434. The substantial evidence standard applies to challenged findings of fact. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); Kinard, 109 Wn. App. at 434. Unchallenged findings are verities on appeal. Hill, 123 Wn.2d at 644; Kinard, 109 Wn. App. at 430.
Here, Mr. Armendariz challenges four factual findings resolving disputed facts. The first challenged finding is more appropriately characterized as a conclusion of law that the suggestive photomontage was `not so suggestive as to give rise to a substantial likelihood of irreparable misidentification.' CP at 17. We will discuss that finding later in connection with the nearly identical challenged conclusion of law on that point. See Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986) (noting that the appellate court reviews a conclusion of law erroneously described as a finding of fact as a conclusion of law).
The second challenged finding partly states: `The defendant's photo is the only one of someone with a tattoo on his neck that is visible. However, in the photographs displayed, the tattoo is not particularly outstanding at first view of the photographs. It almost appears to be a shadow.' CP at 17. The first statement is correct; no other tattoos are visible in the photomontage. The second statement is a closer question; nevertheless, no reasonable person can dispute that the tattoo shown in the photomontage is very faint and all but illegible. At most, this court can make out a `y' and some illegible vowels. Ex. A. A person glancing at the photographs could easily overlook the tattoo. The trial court was correct in characterizing the tattoo as `not particularly outstanding at first view.' CP at 17. And a reasonable observer of the photograph could agree with the trial court that the faint tattoo `almost appears to be a shadow.' CP at 17. In sum, substantial evidence supports the challenged finding.
The third challenged finding states:
Traci Mallory testified that she did not focus or notice the tattoo in the photo until after identifying Mr. Armendariz. Ms. Mallory's attention was recognizing the face and in the particular features of the face including the pock-marks or scarring. The photo of Mr. Armendariz is not the only one in the montage with individuals having a pock-marked face. CP at 17.
The finding accurately reflects Ms. Mallory's testimony. She was most heavily focused on the facial scarring of the intruder. Her testimony at the CrR 3.6 hearing indicates she did not actually see the tattoo at the time of the burglary. The tattoo was mentioned to her by another witness. Nevertheless, Mr. Armendariz's face was the primary source of identification; the tattoo was little more than an afterthought.
Whether other individuals depicted in the photomontage were `pock-marked' is a closer question. CP at 17. Although Mr. Armendariz obviously displays the most facial scarring (photo number 5), the individuals depicted in photos 3 and 6 show some evidence of acne scarring. The individual depicted in photo 6 could fairly be considered to have a pock-marked face although his scarring is not as severe as Mr. Armendariz's. Allowing proper deference for the trial court's weighing of the evidence, we conclude substantial evidence supports the trial court's conclusion that Mr. Armendariz is not the sole person depicted with a `pock-marked' face. CP at 17.
The fourth challenged finding states:
In photograph No. 1 it appears that the man could have some kind of acne or pock-marks on his left side. No. 2 is more pronounced in terms of such a facial feature. No. 3 also has pock-marks, as does No. 6. On No. 4, there appears to be no scarring or markings. CP at 17.
Again allowing deference to the trial court's weighing of the evidence, a reasonable trier of fact could arrive at the same conclusion. Although rather faint, it does appear the man in photograph No. 1 `could' have some slight blemishes. CP at 17. Blemishes are more pronounced in photo No. 2. The facial scarring is much more pronounced in photographs No. 3 and 6, particularly the latter. The gentleman depicted in photo No. 4 appears to have no blemishes. Consequently, substantial evidence supports this challenged finding.
Moreover, unchallenged findings support the misidentification factors in the State's favor. First, Ms. Mallory had ample opportunity to view the intruder and was attentive.
`She had a good direct look at the subject in a well-lit setting, six to ten feet away for several seconds. He[r] attention was specifically devoted to him, and was not inadvert[e]nt. She looked at him long enough to be able to describe to the court that she could even tell that he was sweating.'
CP at 18.
Her description of the intruder's short hair and `pock marked' face was accurate. CP at 15. As noted, the tattoo was a feature spotted by another witness rather than Ms. Mallory. But, Ms. Mallory's identification relied most heavily on the intruder's face.
Ms. Mallory displayed a high level of certainty at the photomontage viewing. `She picked out the picture of Fernando Armendariz after looking at the montage for less than 3 seconds. She indicated certainty in the identification.' CP at 16.
Finally, the crime occurred at approximately 9:30 p.m. The photomontage viewing occurred in the afternoon of the next day, less than 24 hours after the crime. In Kinard, this court accepted a photomontage identification that took place within a day or two of the crime. Kinard, 109 Wn. App. at 434.
The trial court's findings gave a tenable basis for its conclusion of law that `the photo montage was not so suggestive to give rise to a substantial likelihood of irreparable [mis]identification.' CP at 18. `Given these findings, the court did not abuse its discretion by admitting evidence of the photo identification.' Kinard, 109 Wn. App. at 434 (citing Harris, 97 Wn. App. at 870).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and SCHULTHEIS, J., concur.