Appeal from Superior Court of Pierce County. Docket No: 95-1-01867-1. Date filed: 07/24/95. Judge signing: Hon. Thomas R. Sauriol.
Authored by Elaine M. Houghton. Concurring: Carroll C. Bridgewater, Visiting Judge.
The opinion of the court was delivered by: Houghton
HOUGHTON, C.J. -- Jay Dereke Shea appeals from his conviction of theft in the second degree on grounds the trial court erred in denying his motion to suppress an identification, or in the alternative to dismiss the charges, and in making an evidentiary ruling. We affirm.
At about 3 a.m. on April 17, 1995, Jay Dereke Shea and an accomplice, Jonathan Jackson, broke into a truck and removed several pieces of stereo equipment. The victim of the crime, Michael McKay, watched the theft from his bedroom window 15 feet away and called the police on his cellular telephone.
McKay watched the suspects leave the scene and heard the sound of a loud car exhaust system. An officer arrived within minutes and was in the process of obtaining a description from McKay when a car drove by with a loud exhaust system. McKay identified the sound of the car and the officer pulled the car over. Two white males and several pieces of stereo equipment were found inside.
McKay was taken to where the suspects stood handcuffed on the side of the road and identified them. Jackson admitted to police that he and Shea had taken the items from McKay's truck and further told officers that additional items were in Shea's car. McKay identified two stolen compact disc containers while standing outside the car.
At a CrR 3.6 hearing, Shea moved to suppress the "showup" identification, and in the alternative, to dismiss the charges. The trial court found that the "showup" identification, although suggestive, was proper under all the circumstances, including the time of day and denied the motion.
Before trial, the court ruled that if Jackson's prior juvenile adjudications were admitted to diminish his credibility, Shea's similar prior juvenile adjudications could be admitted in the State's case in chief. Shea was convicted by jury of theft in the second degree *fn1 and now appeals.
1. The "Showup" Identification
Shea first contends that the "showup" identification was unduly suggestive and violated his right to due process. The burden is on Shea to prove that the "showup" identification was impermissibly suggestive. State v. Gould, 58 Wash. App. 175, 185, 791 P.2d 569 (1990) (citing State v. Guzman-Cuellar, 47 Wash. App. 326, 335, 734 P.2d 966, review denied, 108 Wash. 2d 1027 (1987)).
Washington law on suggestive identification procedures evolved primarily from three U.S. 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). The defendant must show (1) that the procedure was unnecessarily suggestive; and, if so, (2)
whether considering the totality of the circumstances, the suggestiveness created a substantial likelihood of irreparable misidentification. In the second step, the trial court considers the following factors: (1) the opportunity ...