STATE OF WASHINGTON, Respondent, v. CHRISTOPHER LEE DERRI, a/k/a JOHN STITES, Petitioner.
No. 100038-3
THE SUPREME COURT OF WASHINGTON
September 12, 2022
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The Court considered the Respondent’s “MOTION FOR RECONSIDERATION”, the Respondent’s “STATEMENT OF ADDITIONAL AUTHORITY IN SUPPORT OF MOTION FOR RECONSIDERATION” and the Petitioner’s “ANSWER TO PROSECUTION’S MOTION FOR RECONSIDERATION”. The Court entered an “ORDER AMENDING OPINION” in this case on September 9, 2022.
Now, therefore, it is hereby
ORDERED:
That further reconsideration is denied.
DATED at Olympia, Washington this 12th day of September, 2022.
For the Court
CHIEF JUSTICE
STATE OF WASHINGTON, Respondent, v. CHRISTOPHER LEE DERRI, a/k/a JOHN STITES, Petitioner.
No. 100038-3
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
September 9, 2022
It is hereby ordered that the majority opinion of Gordon McCloud, J., filed June 23, 2022, in the above entitled case is amended as indicated below. All references are to the slip opinion.
On page 21, line 4, after “Police should” delete “present photomontages sequentially, rather than simultaneously. They should”.
On page 21, line 13, after “detective” delete all text down to and including “sequentially.” on line 14 and insert “read the witnesses an admonition.”
On page 27, line 7, after “double-blind fashion.” insert “18” and add the following new footnote 18:
18 Detective Carver did not administer the lineups in a “blinded” fashion, either. Using a blinding procedure, as described supra n.17, requires the administrator to refrain from looking at the photos while the witness makes an ID. Henderson, 208 N.J. at 249-50. The record shows that Carver did not take any measures to shield the photos from his view, but rather that he actively engaged in discussion with the witnesses as they viewed and described the photos. See, e.g., CP at 286-89.
Renumber former footnote 18 as footnote 19 and correct succeeding footnote numbers.
On page 27, in the third line of former footnote 18 (renumbered as footnote 19), after “at 304.” delete “Detective Carver” and insert “Agent Roser”.
On page 36, line 19, after “Research indicates” delete all text down to and including “little, if any,” on page 37, line 4 and insert “certain suggestive police procedures “severely compromise” the correlation between witness certainty and accuracy. Wixted & Wells, supra, at 50. Specifically, certain suggestive procedures—including the failure to administer a lineup in double-blind fashion—can artificially inflate a witness’ certainty in their identification. Id. at 48. For that reason, high levels of witness certainty should be given less”.
DATED this 9th day of September, 2022.
Chief Justice
APPROVED:
Johnson, J.
Gordon McCloud, J.
Madsen, J.
Yu, J.
Owens, J.
Whitener, J.
Stephens, J.
Leach, J.P.T.
STATE OF WASHINGTON, Respondent, v. CHRISTOPHER LEE DERRI, a/k/a JOHN STITES, Petitioner.
NO. 100038-3
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
June 23, 2022
EN BANC
This case asks us to decide whether trial courts must consider new scientific research, developed after the 1977 Brathwaite decision, when applying that federal due process clause test.3 The answer is yes. We hold that courts must consider
Stites also challenges the sufficiency of the charging information. Where, as here, such a challenge is first raised on appeal, we read the information liberally in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). Under that test, the information contains the necessary facts and Stites fails to show prejudice from its wording.
We therefore affirm the convictions.
FACTS4
Three Bank Robberies Occur in North Seattle
In March 2017, two banks were robbed in North Seattle. Chase Bank was robbed on March 1 and HomeStreet Bank was robbed twice, once on March 7 and once on March 11. 1 Clerk’s Papers (CP) at 5-7.
On March 1, 2017, branch manager David Fletcher and teller Jacob Price were working at Chase Bank in North Seattle. Id. at 33. Around 3 p.m., a man entered the bank, approached Fletcher, and demanded cash. Id. at 33, 236. The man asked for wrapped $20 bills from the bottom drawer, requested the merchant teller, and said he didn’t want any “dye packs.” Id. at 34. Fletcher and Price began putting money on the counter. Id. at 34, 236. The robber began stuffing the money into a duffel bag. Id. at 36. The robber asked for more money, and the employees put loose coins on the counter. Id. at 236. The robber then left. Id.
Police responded shortly thereafter, and Fletcher described the robber as a male, about 5 feet 11 inches tall, “very thin with a sunken in face wearing a thick olive green winter coat with the hood of his jacket pulled up over his head.” Id. The police then took Price to view a possible suspect who had been detained nearby, but Price told them it was the wrong man. Id. at 39.
Around 4 p.m. that same day, Detective Len Carver obtained photographs of the robber from the bank’s surveillance cameras. Id. at 218, 227. After police disseminated the photos to a large Seattle Police Department e-mail list, an officer e-mailed Carver, saying, “I think a good suspect is John T. Stites . . . AKA Christopher L. Derri.” Id. at 229. Detective Carver then located a 2015 jail booking photo of Stites. Id. at 218.
The next day, March 2, 2017, Carver interviewed Price. Price described the robber as about 5 feet 10 inches to 6 feet tall, 30 to 40 years old, with brown eyes, “very thin, very pale,” not clean-shaven, with “very sunken in cheeks.” Id. at 38. Detective Carver read a standard admonition to Price, then showed Price a six-photo, sequential montage that included the 2015 booking photo of Stites.5 Id. at 44-50. Price did not make a pick. Id. at 44.
The same day, Fletcher was shown the same six-photo montage. Id. at 52-58. The record does not contain any transcript of an interview of Fletcher by Detective Carver. Fletcher was shown the photos sequentially and in a different order from Price. Id. He did not make a pick. Id. at 52.
On March 10, 2017, Detective Carver showed Fletcher and Price a six-photo, sequential montage that included Stites once again—but this time the detective used a more recent photograph of Stites. See id. at 186-192, 77-83, 85-91. Detective Carver read the montage admonition to Price. Id. at 77-83. Price initially selected Stites’ photo. Id. at 94. However, when he noticed the tattoo on Stites’ neck, he changed his mind—because he didn’t remember the robber having any tattoos. Id. at 94-95. Ultimately, Price did not make a pick.
The record contains no interview with Fletcher during this second photomontage, either, but Fletcher did sign a “Montage Identification Sheet” that contained the admonition. Id. at 77. This time, Fletcher selected Stites’ photo and indicated that he recognized Stites as the robber. Fletcher was 90 percent certain. Id. at 78.
iii. March 7, 2017: Robbery at HomeStreet Bank
On March 7, 2017, a similar robbery occurred at HomeStreet Bank in North Seattle. Id. at 241. Around 5:15 p.m., a man entered and approached tellers Hannah Amdahl and Andrew Hilen. Id. at 241, 293. The man “said . . . something along the lines of . . . this is a robbery, . . . give me your money.” Id. at 279, 295. He asked for the merchant teller and also told the tellers not to include “dye packs” or
After the robber left, Amdahl called 911. Id. at 297. Amdahl and Hilen described the robber to police as an adult white male, wearing a hat, a “jacket with the hood up and cinched down over the hat,” baggy jeans, and gardening gloves. Id. at 241. Amdahl described him as “tall, pale and thin.” Id.
Both Amdahl and Hilen also told police that they recognized the robber as a man who had come into the bank on February 23 or 24 to ask about opening a checking account. Id. at 242, 284, 299-300. Amdahl had discussed accounts with him, and at the end of their conversation, the man introduced himself as “John Stites.” Id. at 283. Amdahl wrote down the man’s name so she would remember their conversation in case Stites did come back to open an account. Id. at 284. She didn’t write down the date at the time, but about a week later, she wrote “2/24?” on the note. Id. at 147, 282.
Amdahl said she recognized Stites as the March 7 robber because he had the same “sunken in eyes and . . . he looked very emaciated in the face.” Id. at 285.
iv. March 8: Amdahl selects Stites from a photomontage
On March 8, 2017, Detective Carver interviewed Amdahl. She described the robbery and said that the robber was wearing a black Windbreaker with the hood “pulled up and the strings pulled so it was tight against his face, so you could only see his face.” Id. at 279. Detective Carver had assembled a seven-photo montage using the more recent photograph of Stites. Id. at 60-67. He read Amdahl the standard admonition, then showed the photos sequentially. Id. at 286-87.
v. March 9: Hilen selects Stites from a photomontage
On March 9, Detective Carver interviewed Hilen about the robbery. Hilen described the robber as “very skinny” with “sandy blonde hair,” “a very weathered face,” and a “stutter[ing]” way of speaking. Id. at 299.
After asking questions about the March 7 robbery, Detective Carver said, “I’m gonna show you some pictures from a March 1 bank robbery.” Id. at 302. He then showed Hilen some surveillance photos from the Chase Bank robbery and asked Hilen if the man in the photos “look[ed] like the same guy” who had robbed HomeStreet. Id. Hilen said it was hard to be sure because the pictures were of such poor quality, but that the person in the photos had a chin similar to the HomeStreet robber’s chin. Id.
Detective Carver read Hilen the standard admonition and then showed Hilen a six-person photomontage that included the more recent photo of Stites. Id. at 68-75, 303-04. When Hilen saw the fourth photo, which was of Stites, he said, “That’s
B. March 11: Second robbery at HomeStreet Bank
On March 11, 2017, Foss and Amdahl were working at HomeStreet Bank. Id. at 261. Close to 2 p.m., a person approached the door. Id. When he reached the door, Foss and Amdahl recognized him as the same robber from the incident a few days earlier. Id. at 262. Amdahl immediately pressed her silent alarm button. Id. The man then pulled a mesh mask over his face and opened the door. Id. He approached Amdahl’s teller station and demanded cash. Id. at 263. Amdahl gave the robber some cash, and he left the bank. Id. at 264.
After the robber left, Amdahl called 911. Id. at 265. Foss said he recognized the robber from the Facebook photo of John Stites, and he provided the name “John Stites” to the responding officer. Id. at 273-74. The record is silent about
C. The State charges “Christopher Derri, aka John Stites” with the robberies
On March 13, 2017, officers arrested Stites in a parking lot in North Seattle. 2 Verbatim Report of Proceedings (VRP) (Mar. 27, 2019) at 615. The State charged “Christopher Lee Derri, aka John Stites” with three counts of first degree robbery.7 1 CP at 310.
PROCEDURAL HISTORY
A. Stites moves to suppress the eyewitness identifications
Stites moved to suppress the identifications made by Amdahl, Fletcher, and Hilen and to prevent them from making in-court identifications. Id. at 9-27; 1 VRP (Mar. 19, 2019) at 12. He did not seek to call any witnesses at the pretrial hearing but relied on the interviews, police reports, and montage records attached to his motion.
Stites argued that each montage procedure was impermissibly suggestive and the resulting identifications were unreliable under the totality of the circumstances, requiring suppression under the federal due process clause, citing Brathwaite, 432 U.S. at 114. 1 CP at 16-24; 1 VRP (Mar. 19, 2019) at 12-41. He
With regard to Fletcher’s identification, Stites argued that the procedure employed by police was impermissibly suggestive because of double exposure: Fletcher was shown two different montages and Stites was the only person pictured in both of them. 1 VRP (Mar. 19, 2019) at 14, 40. With regard to Amdahl and Hilen’s identifications, Stites argued that the procedure employed by police was impermissibly suggestive because of double exposure and improper highlighting of Stites: (1) Stites was the only person in the montage with a tattoo and (2) Foss claimed he had shown both tellers a Facebook photo of Stites before they viewed the photomontages. 1 CP at 19; 1 VRP (Mar. 19, 2019) at 12-17. Additionally, Stites argued that Hilen’s procedure was impermissibly suggestive because of triple exposure: Detective Carver showed Hilen a surveillance photo of the March 1 robber prior to showing Hilen the montage. 1 VRP (Mar. 19, 2019) at 18. Stites further argued that under the totality of the circumstances, the suggestive procedures created a substantial likelihood of irreparable misidentification as to all three witnesses. Id. at 33-39; 1 CP at 19.
The trial court ruled that the Amdahl and Hilen identification procedures were not impermissibly suggestive, either, despite the fact that Stites was the only person pictured with a tattoo. Id. at 109. It opined that because no witness described the robber as having a tattoo, “there was no obligation on the part of the police to provide another photograph of individuals with tattoos.” Id. The court said that Amdahl “is expected to testify she was never shown a Facebook photograph” of Stites but continued that even if Amdahl had viewed the Facebook photo, “the mere fact that a witness may have looked at a photograph provided by a non-law enforcement officer outside the investigation does not make the police procedure that followed impermissibly suggestive.” Id. at 110.
As to all three identifications, the court concluded that even if the police procedures were impermissibly suggestive, the identifications were still sufficiently reliable under the Biggers9 factors and “the totality of the circumstances does not give rise to a substantial likelihood of irreparable misidentification.” Id. at 110. The court denied the motion to suppress but noted that it was “a fairly close issue.” Id. at 106; 1 CP at 315.
B. The jury convicts Stites on all three counts
At trial, Amdahl, Hilen, and Fletcher testified about the out-of-court identifications, and each made an in-court identification of Stites. 1 VRP (Mar. 26, 2019) at 340, 362-66; 448-49, 458-60; 2 VRP (Mar. 27, 2019) at 528, 539-45. Stites did not call any expert witnesses to testify about eyewitness identifications. In closing, Stites argued that the eyewitness identifications were unreliable and that he was not the robber. 2 VRP (Apr. 1, 2019) at 911-39. Stites did not propose any jury instructions relating to eyewitness evidence, and none were given. 1 CP at 337-60.
The jury found Stites guilty as charged. Id. at 361-63.
Stites appealed. He assigned error to the court’s decisions to admit both “the impermissibly suggestive, unreliable out-of-court identification of Mr. Stites” and “the unreliable in-court identifications of Mr. Stites where the State failed to establish they were untainted by the unduly suggestive and unreliable out-of-court procedures.” Br. of Appellant (Wash. Ct. App. No. 80396-4-I (2020)) at 2. He also argued that the information was constitutionally deficient for failing to include all the essential elements of first degree robbery. Id. at 1.
The Court of Appeals affirmed. State v. Derri, 17 Wn. App. 2d 376, 486 P.3d 901 (2021). Relevant here, that court held (1) that even if the identification procedures were suggestive, they were sufficiently reliable, so the trial court did not abuse its discretion in denying Stites’ motion to suppress and (2) that the information was sufficient. Id. In a concurrence, Judge Coburn opined that the identifications were all impermissibly suggestive because Stites was the only person pictured with a neck tattoo but concluded that the identifications were nonetheless reliable under the totality of circumstances. Id. at 412 (Coburn, J., concurring).
We granted review of (1) whether the eyewitness identification evidence should have been suppressed on the basis of suggestive photomontage procedures
ANALYSIS
I. Courts must consider the current scientific understanding of the fallibility of eyewitness identification when deciding suggestiveness and reliability issues under Brathwaite
As mentioned above, “mistaken eyewitness identification is a leading cause of wrongful conviction.” Riofta, 166 Wn.2d at 371 (citing Garrett, supra, at 60). That is true even here, in Washington.10
Courts have long recognized the potential unreliability of eyewitness testimony and the unique risks to reliability posed by suggestive police procedures. See, e.g., United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 297-98, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). In 1977, the United States Supreme Court held that the due process clause of the
Under this Brathwaite test, the defendant has the burden to establish, by a preponderance of evidence, that a police-administered identification procedure was unnecessarily suggestive. Vickers, 148 Wn.2d at 118. As the movant, it is in the defendant‘s interest to fully develop the record on the issue of suggestiveness.11
If the defendant shows that the police procedure was unnecessarily suggestive, then the court must consider whether, under the totality of the circumstances, the unnecessarily suggestive procedure created “‘a very substantial likelihood of irreparable misidentification.‘” Brathwaite, 432 U.S. at 116 (quoting Simmons, 390 U.S. at 384). The United States Supreme Court explained that “[t]he admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.” Id. at 106.
The United States Supreme Court held that those “aspects of reliability” include the five factors set out in Biggers: (1) the opportunity of the witness to
Many of Brathwaite‘s conclusions about eyewitness identifications relied on the limited available empirical research on the subject. E.g., id. at 116 (citing Simmons, 432 U.S. at 383 n.2 (citing PATRICK M. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 74-77 (1965))). In the 45 years since Brathwaite, researchers have conducted hundreds more empirical studies relating to the reliability of eyewitness evidence. That research has greatly enriched what we know about the accuracy and reliability of witness memory and recall under various conditions. For example, we now know that cross-racial identifications can be particularly unreliable—studies show that rates of error in making identifications are much higher when a person is asked to identify someone of another race.12
We hold that when a trial court uses the Brathwaite test, it must apply relevant, widely accepted modern science on eyewitness identification at each step of the test. See State v. O‘Dell, 183 Wn.2d 680, 695, 358 P.3d 359 (2015) (court may adapt legal frameworks by considering “advances in the scientific literature“); State v. Bowman, 198 Wn.2d 609, 633, 498 P.3d 478 (2021) (Yu, J., concurring) (court should look to “empirical data . . . to support and expand on our jurisprudence where appropriate“); Wyman v. Wallace, 94 Wn.2d 99, 102, 615 P.2d 452 (1980) (“[A] court can take notice of scholarly works, scientific studies, and social facts.“).13
A. The three challenged identification procedures were impermissibly suggestive
When reviewing the denial of a
Researchers have extensively studied the variables that affect the reliability of eyewitness identifications and generally place them in two groups: “system variables” and “estimator variables.” Gary L. Wells et al., Policy and Procedure Recommendations for the Collection and Preservation of Eyewitness Identification Evidence, 44 L. & HUMAN BEHAV. 3, 6-7 (2020) [https://perma.cc/LVQ3-EEV8]. “System variables” are variables under police control when administering identification procedures, meaning they are relevant to the question whether the government used a suggestive identification procedure. State v. Henderson, 208 N.J. 208, 218, 27 A.3d 872 (2011). “Estimator variables” are environmental or individual variables not under the control of the police but “equally capable of affecting an eyewitness’ ability to perceive and remember an event.” Id. at 261.
In this case, the detective did several things right: he read the witnesses an admonition and administered the montages sequentially. But, as discussed below, the administration of the montages fell short in other significant ways. We hold
i. Neck tattoo
Stites’ main argument is that the identification procedures were suggestive because Stites was the only person pictured with a neck tattoo. We agree with the Court of Appeals that this is a close issue; but we also agree with the Court of Appeals that on this record, the trial court did not err in determining that this factor did not render the identifications suggestive.
The Court of Appeals has broadly stated that a photomontage is impermissibly suggestive if it “directs undue attention to a particular photo.” State v. Eacret, 94 Wn. App. 282, 283, 971 P.2d 109 (1999) (per curiam). But that rule is generally applied when the “undue attention” stems from a distinctive feature of the defendant that the witness previously described; in other words, that rule has generally been applied “when the defendant is the only possible choice given the witness‘s earlier description.” State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002)) (emphasis added); see, e.g., State v. Kinard, 109 Wn. App. 428, 431, 433, 36 P.3d 573 (2001) (photomontage was impermissibly suggestive where the witness had described the perpetrator as having tooth gap and the witness was
In this case, Stites was the only person in the photomontages who had a neck tattoo. That is certainly a distinctive characteristic. But it was not previously described by any witness. The witnesses’ failure to describe a neck tattoo makes sense: the robber‘s neck would not have been visible during the robberies given the witnesses’ description that his hood was pulled up and cinched around his face.
Stites argues that the tattoo was impermissibly suggestive anyway because it made him stand out from the others. And current eyewitness identification
That is not the situation presented in this case. And the record lacks sufficient evidence for us to draw the same conclusion about the precise situation that occurred here, where no witness described the characteristic.
ii. Double-blind administration
Other aspects of the montage procedures were potentially suggestive, though. The first potentially suggestive aspect of the procedures that we consider is the fact that they were administered in a single-blind, rather than in a double-blind, fashion.
In a “double-blind procedure,” neither the lineup administrator nor the witness knows which photo shows the suspect and which photos show only fillers. In a “single-blind procedure,” the administrator, but not the witness, knows which
Only double-blind procedures “prevent the tester from unintentionally influencing the outcome of the results.” John T. Wixted & Gary L. Wells, The Relationship Between Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 PSYCH. SCI. IN PUB. INTEREST 10, 17 (2017). A lineup is a type of experiment in which the police have a theory (that the suspect is the culprit) and develop a hypothesis to test that theory (that the witness will recognize the suspect from the lineup). Margaret Bull Kovera & Andrew J. Evelo, The Case for Double-Blind Lineup Administration, 23 PSYCH., PUB. POL‘Y & L. 421, at 423 (2017). As in any experimental scenario, the expectations of the tester (the police) can cue the behavior of the person tested (the witness). Id. Decades of research have found that cues from the tester “can be subtle, transferred unconsciously, and result simply from the expectations of the experimenters.” Id. (citing Robert Rosenthal, Covert communication in classrooms, clinics, courtrooms, and cubicles, 57 AM. PSYCH. 839-849 (2002)).16 Numerous studies show that “single-blind administration of
There is also a connection between nonblind procedures and reported rates of witness confidence: “lineup administrators’ own expectations are likely to influence the confidence of the witness even when the lineup administrators are given an objective script to follow and are instructed to not deviate from that script.” Wixted & Wells, supra, at 18; Kovera & Evelo, supra, at 423 (“Two meta-analyses have supported that confirming feedback inflates witnesses’ confidence in their identifications and their reports of the quality of the witnessing conditions. . . . Confidence inflation can occur even if administrators do not directly tell witnesses that they identified the suspect.“). These findings underscore the importance of double-blind procedures.
In this case, the lineups were not administered in a double-blind fashion. Detective Carver, the lineup administrator, knew that Stites was the suspect. He administered the lineups in the same room with the witnesses. The record is unclear as to whether Detective Carver knew the order in which the photos were presented to the witnesses. At least one of the detective‘s statements, though—the statement to witness Hilen after he made his pick—suggests unconscious confidence-bolstering.18
Another potentially suggestive aspect of the eyewitness identification procedures in this case was double exposure. Fletcher viewed two separate montages; Stites’ photo was the only one repeated in both of them.
To be sure, the photo contained in the first montage was older, depicting Stites with longer hair and a fuller face compared to the newer photo used in the second montage. The trial court concluded that there was no legal problem with this procedure, opining that “the photos are so different from one another” that the fact that Fletcher was shown two montages featuring the same suspect “did not taint the second montage or draw attention to that picture.” 1 VRP (Mar. 19, 2019) at 108-09.
But “social science research indicates that false identification rates increase, and accuracy on the whole decreases, when there are multiple identification procedures.” Young v. Conway, 698 F.3d 69, 78 (2d Cir. 2012) (citing Ryan D. Godfrey & Steven E. Clark, Repeated Eyewitness Identification Procedures: Memory, Decision Making, and Probative Value, 34 LAW & HUM. BEHAV. 241, 241, 256 (2010)).19 “[S]uccessive views of the same person can make it difficult to
In fact, the general recommendation against multiple exposures to the same suspect “holds no matter how compelling the argument in favor of a second identification might seem (e.g., the original photo of the suspect was not as good as it could have been).” Wells et al., supra, at 25. Indeed, the Seattle Police Department forbids this practice absent prosecutorial approval. 1 CP at 107.20
Based on this scientific research and legal authority, we conclude that the trial court erred in ruling that this was not really a multiple exposure case. Certainly, the 2015 picture differs from the newer photo: it shows Stites with longer hair and a fuller face. The older photo also reveals just a small section of his neck tattoo. But in the more recent picture, Stites’ distinctive facial characteristics are still present. His deep-set eyes, facial structure, and chin are recognizable. These similarities are sufficient to direct undue attention to Stites’ photo during Fletcher‘s second identification.
iv. Single-suspect identification
In Hilen‘s case, the double exposure problem took the form of a preliminary single-suspect “showup.” The detective showed Hilen a photo of the suspect from the March 1 Chase Bank robbery and asked him if the March 1 photo “look[ed] like the same guy” who had robbed HomeStreet Bank. 1 CP at 302. Immediately afterward, the detective showed Hilen the photomontage featuring Stites. Id. Although Stites argued this issue at the suppression hearing, the trial court did not address it. 1 VRP (Mar. 19, 2019) at 37-38. However, this procedure was suggestive in several ways.
Following the single suspect identification with a montage that included a photo of the person police believed to be the same suspect only increased the suggestiveness of this procedure. It suggested to Hilen that despite any contrary admonition, the police believed that a photo of the suspect—the person whose photo they had just shown him—appeared in the montage. Simmons, 390 U.S. at 383 (danger of misidentification is increased “if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime” (citing WALL, supra, at 82-83)). Although the surveillance photos were not close-up face shots of the suspect, they were clear enough for Hilen to see that the robber in the photos had a chin similar to that of the March 7 robber. Hilen then
We hold that each identification procedure was suggestive for one or more of the reasons discussed above: the failure to employ a double-blind procedure, multiple exposures to the same suspect, and use of a single suspect showup. But the inquiry does not end there. Because the identifications were impermissibly suggestive, we move to the next step of the Brathwaite test: whether, under the totality of the circumstances, the identifications were so unnecessarily suggestive as to create “‘a very substantial likelihood of irreparable misidentification.‘” Brathwaite, 432 U.S. at 116 (quoting Simmons, 390 U.S. at 384).
B. Under the totality of the circumstances, all three identifications were nonetheless sufficiently reliable
Here, examining the totality of the circumstances, we conclude that there were sufficient indicia of reliability to outweigh the suggestiveness of the procedures. We emphasize that the Biggers factors are not exclusive and that updated scientific evidence relating to the reliability of eyewitness identification (including estimator variables) must be considered when analyzing this step of the Brathwaite test.22
This Biggers factor overlaps with estimator variables relating to duration of observation and to distance and lighting. Each robbery lasted at least a few minutes and occurred in a well-lit bank. 1 CP at 236, 279, 296. During each of the robberies, the robber was directly in front of the tellers for a period of time and his face was visible. Id. at 34, 294, 301. Further, Amdahl and Hilen told police that they recognized the robber as a man who had come into the bank a few weeks before to discuss opening an account. Id. at 300. Amdahl reported having an in-depth conversation with the man and writing down his name, John Stites. Id. at 284. Hilen also observed Amdahl and Stites’ conversation at that time and heard Stites’ voice and “stutter[ing]” manner of speaking. Id. at 299. He told police that Stites’ “voice was the same” as the robber‘s voice. Id. at 301. With regard to Amdahl and Hilen, this prior interaction with Stites weighs even further toward reliability.
This Biggers factor overlaps with estimator variables relating to witness characteristics, stress, and presence of a weapon.23 Rather than improve one‘s ability to accurately recall, “studies have shown consistently that high degrees of stress actually impair the ability to remember.” Henderson, 208 N.J. at 244 (citing Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 LAW & HUM. BEHAV. 687, 699 (2004)). Undoubtedly, witnessing a robbery is a stressful event, and Amdahl and Hilen reported experiencing fear during the robbery. 1 CP at 280, 298. However, the witnesses were all able to provide a detailed description of the robber‘s appearance, including facial features, height, clothing, and voice, and no witness reported a visible weapon. This factor weighs toward reliability for all three witnesses.
iii. Accuracy of prior description of criminal
The trial court found that “the descriptions of the bank robber are all sufficiently consistent with the attributes of Mr. [Stites].” 1 VRP (Mar. 19, 2019) at 111. This is accurate, in that Stites appears from his most recent photomontage
Some researchers have criticized reliance on this factor. E.g., Wells & Quinlivan, supra, at 13. In a case where the witness’ initial description differs from that witness’ later selection from a montage or lineup, the difference would weigh against reliability. But the fact that the witness’ initial description coincides with that witness’ later selection does not necessarily indicate reliability: witnesses “tend to select the person who looks most like their memory of the culprit and will readily select an innocent person if that person fits the eyewitness’ pre-lineup description better than do the lineup fillers.” Id. (citation omitted) (emphasis added). This consistency factor should therefore receive limited weight.
iv. Level of certainty at time of procedure
All three witnesses reported high levels of certainty—ranging from 90 to 100 percent—at the time they selected Stites’ photo. But while the Biggers and Brathwaite Courts assumed that high levels of certainty correlated with high levels of accuracy, we now know that is not always true. Research indicates suggestive police procedures “severely compromise” the correlation between witness certainty
However, witness certainty is not wholly irrelevant. Research also shows that under any conditions, a low level of certainty always weighs against reliability. Id. at 14, 20. For that reason, witness certainty should not be entirely eliminated from consideration under the totality of circumstances. See id. at 49.
Here, the witnesses’ expressions of certainty were made after being exposed to suggestive identification procedures. The trial court erred in concluding that this factor weighed toward reliability.
v. Time between crime and identification
This factor overlaps with the estimator variable known as “memory decay.” Memory deteriorates after viewing an event and never improves. Henderson, 208 N.J. at 267 (citing Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness‘s Memory Representation, 14 J. EXPERIMENTAL PSYCHOL.: APPLIED 139, 142 (2008)). One study suggests that misidentifications substantially increase from 2 to 24 hours after an event. Id. (citing Carol Krafka & Steven Penrod, Reinstatement of Context in a Field Experiment on Eyewitness Identification, 49 J. PERSONALITY & SOC. PSYCHOL. 58 (1985)). Thus, identifications made immediately after a crime may be more accurate, but as time passes, this factor becomes less useful in determining reliability. However, researchers have not pinpointed a precise time at which memory becomes unreliable. Id. Here, Hilen and Amdahl made their identifications one day after the robbery. Fletcher made his identification nine days after the robbery. In this case, this factor does not weigh against reliability.
vi. Additional estimator variables
Researchers have identified many other estimator variables that can affect reliability. Where relevant, these variables should be considered as part of the totality of the circumstances.25
In sum, with regard to Amdahl‘s and Hilen‘s identifications, the fact that both witnesses claimed to recognize the robber as John Stites, the man who came in to the bank about two weeks before, tips the scale toward reliability. Amdahl interacted with the man for several minutes and wrote down his name. Hilen observed the interaction and heard the man‘s distinctive voice. Although Fletcher did not previously interact with the robber, we find that his ability to observe the robber, the degree of attention expressed in his detailed description of the robber, the match between his description and Stites, and the relatively short time between the robbery and the photomontage in which he selected Stites render his identification sufficiently reliable. After carefully examining the totality of the circumstances, we conclude that “the corrupting effect of the suggestive procedure” does not outweigh the additional indicia of reliability present with regard to each witness. Brathwaite, 432 U.S. at 98.
The second issue is whether the charging document was constitutionally adequate. Stites argues that the information omitted an essential element of the crime of robbery because it did not specify that “‘force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.‘” Pet. for Review at 2 (quoting
An information is constitutionally adequate under the federal and state constitutions “only if it sets forth all essential elements of the crime, statutory or otherwise, and the particular facts supporting them.” State v. Hugdahl, 195 Wn.2d 319, 324, 458 P.3d 760 (2020);
However, “[c]harging documents which are not challenged until after the verdict will be more liberally construed in favor of validity than those challenged before or during trial.” Kjorsvik, 117 Wn.2d at 102. Under Kjorsvik, we first ask whether the necessary facts appear in any form in the charging document or
A. The second sentence of the robbery statute constitutes an essential element
In relevant part, the amended information alleged:
That the defendant . . . did unlawfully and with intent to commit theft take personal property of another, to-wit: U.S. currency, from the person and in the presence of David Fletcher and Chase Bank, who had an ownership, representative, or possessory interest in that property, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property and to the person or property of another, and that he did commit the robbery within and against a financial institution defined in RCW 7.88.010 or RCW 35.38.060, to-wit: Chase Bank;
Contrary to
1 CP at 310.27
A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
(Emphasis added.)
Stites argues that the first clause of the second sentence of the statute, emphasized above, is an essential element of robbery that needed to be included in the information. Pet. for Review at 13. The State argues that the italicized sentence is merely a definition, not an element. Answer to Pet. for Review at 11-12.
Stites’ argument finds support in our case law. In State v. Johnson, Johnson took an item from a store and brought it outside in a shopping cart without paying for it. 155 Wn.2d 609, 610, 121 P.3d 91 (2005) (per curiam). After security guards confronted Johnson, he “abandoned the shopping cart and started to run away.” Id. A guard grabbed Johnson‘s arm, and Johnson punched the guard and escaped. Id. Johnson was convicted of first-degree robbery. Id.
In Phillips, the court held that an information charging second degree robbery was not constitutionally deficient for failing to “specifically state that [the defendant] had used force or fear to obtain or retain possession of the property at issue.” Id. at 374. The court further held that “the statutory elements of robbery are set forth in the first sentence while sentence[] two . . . [is a] mere definitional statement[].” Id. at 377.
According to the Phillips court, the second sentence “defines to ‘obtain’ or ‘retain’ as a form of ‘take,’ as used in sentence one.” The court said our decision in State v. Handburgh, 119 Wn.2d 284, 830 P.2d 641 (1992), supported this view. Phillips, 9 Wn. App. 2d at 377. In Handburgh, we “discussed the interplay between sentences one and two, concluding that ‘a forceful retention of stolen property in the owner‘s presence is the type of “taking” contemplated by the robbery statute.‘” Id. (quoting Handburgh, 119 Wn.2d at 290). The Phillips court concluded that this language indicates that a “‘retention’ is included within a ‘taking,‘” so the purpose of the second sentence is to define “taking” as including
Here, the Court of Appeals adhered to its decision in Phillips. Derri, 17 Wn. App. 2d at 387. The State also urges us to embrace Phillips’ view that the second sentence is definitional, but it disagrees slightly as to what the second sentence defines, explaining that “the second sentence defines ‘by the use . . . of‘—it explains what it means to take personal property ‘by the use of’ force.” Suppl. Br. of Resp‘t at 38-39 (alteration in original). On this view, one “takes” something “by force or fear” when one obtains or retains it by force or fear, or uses force or fear to overcome resistance to obtaining or retaining it.
We conclude that Phillips’ reasoning is not persuasive. The second sentence of the robbery statute does more than provide a definition—it expands the range of activity criminalized as robbery. The history of the robbery statute supports this view. Under the common law view of robbery, “the force used during a robbery must be contemporaneous with the taking.” Johnson, 155 Wn.2d at 611 (discussing Handburgh). The first sentence of the robbery statute expresses the common law view: “A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear.”
Thus, the second sentence essentially indicates that robbery is an alternative means crime. There are at least two ways to rob someone—taking by force or fear, or retaining by force or fear—but the State must prove only one of those ways to obtain a conviction. Johnson, 155 Wn.2d 609; Allen, 159 Wn.2d 1.
Notably, the 11 Washington Practice: Washington Pattern Jury Instructions: Criminal (5th ed. 2021) (WPIC) lists this second-sentence language as an alternative element. The WPIC to-convict instruction for robbery states the relevant elements as “[t]hat force or fear was used by the defendant [to obtain or retain possession of the property] [or] [to prevent or overcome resistance to the taking] [or] [to prevent knowledge of the taking].” 11 WPIC 37.02(4), at 773. The use of the disjunctive “or” supports our reading, too. While the WPICs do not
We therefore hold that “[s]uch force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking,”
B. The necessary facts appear in the information, and Stites shows no prejudice resulting from the language of the information
However, even though the second sentence of the robbery statute states an essential element, and even though it was not repeated verbatim in the charging instrument, Stites still cannot meet the requirements of the Kjorsvik test. Under Kjorsvik, “even if there is an apparently missing element, it may be able to be fairly implied from language within the charging document.” 117 Wn.2d at 104 (citing United States v. Ellsworth, 647 F.2d 957, 962 (9th Cir. 1981)).
That element can be fairly implied here. As noted, each count of the information alleged that Stites “did unlawfully and with intent to commit theft take personal property of another . . . by the use or threatened use of immediate force, violence and fear of injury to such person or [their] property and to the person or property of another.” 1 CP at 310-11 (emphasis added). Even though the information did not use the second sentence‘s language “such force or fear must be
This language “fully informed” Stites of “the nature of the accusations” against him. Kjorsvik, 117 Wn.2d at 101. Stites cannot show prejudice from the State‘s failure to recite the statute‘s second sentence verbatim.
CONCLUSION
We hold that courts must consider relevant, widely accepted scientific evidence relating to each step of the Brathwaite test. Applying that test, each of the challenged identification procedures was unnecessarily suggestive. But there are sufficient indicia of reliability present to outweigh that suggestiveness as to all three challenged identification procedures.
We further hold that the second sentence of
We affirm the convictions.
Gordon McCloud, J.
WE CONCUR:
González, C.J.
Stephens, J.
Johnson, J.
Yu, J.
Madsen, J.
Whitener, J.
Owens, J.
Leach, J.P.T.