Appeal from Superior Court of King County. Docket No: 95-8-04481-8. Date filed: 10/04/95. Judge signing: Hon. Deborah D. Fleck.
PER CURIAM. Lonnie Davis, a juvenile, appeals the Disposition finding him guilty of robbery in the first degree while armed with a firearm, alleging various issues. He challenges the out-of-court identification procedure employed by police, the adequacy of the charging document, and the sufficiency of the evidence to support the robbery conviction and firearm enhancement. We affirm because the "showup" identification was not impermissibly suggestive, any defect in the charging document was harmless, and there was sufficient evidence to sustain the Disposition.
On the afternoon of July 18, 1995, Seattle Police Officer Guenther was dispatched to investigate a robbery complaint. The police officer contacted the alleged robbery victim, Elsa Pascua, who described the circumstances surrounding the robbery. Ms. Pascua told the officer that a group of approximately six male teenagers approached her and that one of the teens, later identified as Davis, pointed a pistol at her and told her to give him her money or else he would shoot her. Ms. Pascua described the robber's physical appearance as well as what he was wearing. She was also able to give a description of one of the other teenagers in the group.
Officer Guenther drove to where Ms. Pascua had last seen the robbery suspects and observed a group of seven males, two of whom matched the descriptions given by Ms. Pascua. The officer detained the suspects, but separated Davis and another individual from the group and placed them in patrol cars. After Ms. Pascua was transported to the scene, Davis was removed from the patrol car to face Ms. Pascua and then returned to the patrol car. The procedure was repeated with the second individual in the other police vehicle. The rest of the group were allowed to stand together in front of the patrol cars. Ms. Pascua identified Davis as being the person who robbed her. She also identified the other person in the patrol car. Ms. Pascua was not, however, able to identify anyone else in the group of seven. Davis was arrested and later charged with one count of robbery in the first degree.
At the fact finding hearing, Davis moved to suppress the in-court identification of him on the ground that the showup identification procedure used by police was impermissibly suggestive. Davis argued that the showup tainted the subsequent in-court identification of him as the armed robber. The court denied the motion to suppress.
Ms. Pascua testified at the hearing that she was walking to a laundromat near her residence when she noticed a group of five or six male teenagers approaching from the opposite side of the street. She testified that Davis, who was one of the individuals in the group, rushed up to her, held a gun to her head, and said, "Give me your money or else I will kill you." According to Ms. Pascua, Davis held the gun in one hand and had the other arm wrapped around her neck. She stated that, after she took off a fanny pack she was wearing and gave it to Davis, he hit her on the head with the gun and fled from the scene. Ms. Pascua testified that the other juveniles in the group were laughing and followed Davis as he ran off.
Officer Guenther testified that he spoke with Ms. Pascua about the robbery on July 18, 1995. The officer stated that she had a wound on the back of her head and was visibly upset. Officer Guenther testified that he arrested Davis after Ms. Pascua identified him as the individual who held a gun to her head and robbed her. Davis was found guilty as charged. This appeal followed.
Davis first contends the juvenile court erred in refusing to suppress Ms. Pascua's showup identification of him. He argues the identification procedure was unnecessarily suggestive and created a substantial likelihood of misidentification.
"Evidence of an identification should be excluded only if the identification procedure was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification." *fn1 Although the practice of showing suspects singly to persons for purposes of identification is generally considered to be suggestive, showup identifications are not per se impermissibly suggestive. *fn2 While the showup used by police in this case was suggestive, the identification procedure was not so unduly suggestive as to call into question the reliability of the identification. "The key inquiry to admissibility of the identification is reliability." *fn3 Factors to be considered in determining the reliability of eyewitness identification include:
(1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty of the identification; and (5) the length of time between the crime and the confrontation.
State v. Bockman, 37 Wash. App. at 482.
Here, the robbery took place in broad daylight. Ms. Pascua stated that she was able to get a good look at the robber. She was confident as to the accuracy of her identification. The clothing and physical description of the robbery suspect given by Ms. Pascua matched Davis' appearance at the time of his arrest. Finally, the showup identification took place only minutes after the robbery. When these factors are viewed together, they support the Conclusion that the showup identification was not so unnecessarily suggestive as to render the identification unreliable. Thus, the juvenile court properly denied the motion to suppress the identification testimony.
We also reject Davis' contention that the charging scheme in this case violated due process. Davis contends his due process rights were violated when he was convicted of an offense not charged. He argues the second amended information charging him with first degree robbery while armed with a firearm was constitutionally defective because it did not give him adequate notice of the ...