Gerald Hanson appeals his conviction, upon a jury verdict, of one count of first degree assault. We reverse and remand for a new trial.
On the evening of January 22, 1985, Gerald Hanson went to a lounge in Mill Creek for a drink. He was served by a waitress, Susan Hopkins, who knew him from prior visits to the lounge.
During the evening, he struck up a conversation with two other customers, Carol Strickland and Sherry Sherer. As the lounge closed, Hanson walked out to the parking lot with Strickland and Sherer. When it appeared that Sherer was having trouble driving, Strickland and Hanson agreed that it would be a good idea for Hanson to follow Sherer's car to make sure she arrived home safely. Hanson followed what he believed was Sherer's silver Mercedes as she left the parking lot. After following the silver car into the town of Snohomish, where it stopped at the Oxford Tavern, Hanson realized that he had mistakenly followed the silver Firebird of the waitress, Susan Hopkins.
Hanson entered the Oxford Tavern after Hopkins. Once inside, Hopkins asked him, "What the hell are you doing following me? ... You scared me." Hanson explained that he thought he was following Sherer's car. This exchange was witnessed by Candy Clements, the bartender at the Oxford Tavern, and her boyfriend, Dennis Gilleland. After Clements heard this conversation, she noted that Hanson was driving a blue car, and she wrote down the license plate number. Hanson remained at the tavern until approximately 1 a.m.
On that same evening, Karen Zacher was the sole clerk on duty at a 7-Eleven store in the town of Snohomish. At
About this time, Clements and Gilleland left the Oxford Tavern and stopped at the Snohomish 7-Eleven. As they entered the parking lot, they saw a blue car pull out. Gilleland then entered the store, discovered that Zacher had been shot, and provided assistance until the police and medical aid arrived.
When an officer arrived at the scene, he mentioned to Clements that he saw a blue car shortly before he received the call about the shooting. Clements told the officer that she had seen a blue car earlier in the evening at the Oxford Tavern, and she gave the officer the number of Hanson's license plate.
During the early morning hours, Clements and Gilleland worked with a Snohomish police officer to prepare a composite of Hanson, the person who had followed Hopkins to the Oxford Tavern. A few hours later, the same officer interviewed Karen Zacher in the hospital in order to prepare a composite of her assailant.
The next day, Zacher was shown a photographic montage which included Hanson's picture. She chose Hanson's picture as the one who looked most like her assailant, but stated that she could not be sure. Two days after the shooting, Zacher was shown a videotape lineup and chose Hanson as her assailant. Over 2 months later an in-person lineup was held, and Zacher again identified Hanson as her assailant.
On April 8, 1985, Hanson was charged by information with the offense of first degree assault. On May 31, 1985, the court
On appeal, Hanson argues the trial court erred in (1) allowing the prosecutor to cross-examine him regarding fiction he had written, (2) admitting the victim's identifications of him as the assailant, (3) refusing to allow an officer to testify as to his opinion about the photo montage, and (4) refusing certain expert testimony on memory and eyewitness identification.
DEFENDANT'S FICTIONAL WRITINGS
Hanson testified on direct examination that he had never committed a crime, even a misdemeanor. He stated that although he had served in the Army in Vietnam, he had never killed anyone. On cross examination, the State questioned Hanson about fiction he had written which contained some incidents of violence.
On appeal, Hanson contends that questions regarding his fiction were irrelevant to his character for nonviolence.
The admissibility of character evidence is governed by ER 404(a)(1), which states:
When a defendant has placed his character in issue, he may be cross-examined as to specific acts unrelated to the crime charged. State v. Bauman, 77 Wn.2d 938, 940, 468 P.2d 684 (1970); State v. Riconosciuto, 12 Wn.App. 350, 354, 529 P.2d 1134 (1974). However, the information sought must be relevant
Even if we were to assume that Hanson's writings were probative of his character, any probative value would be overwhelmed by the danger of unfair prejudice. The crime charged was a random, brutal act of violence for which there was no apparent motive. By suggesting that the defendant's character conformed to the violent acts in his writings, the State supplied the jury with an improper explanation for why the defendant would have committed the crime charged.
The most similar case our research has disclosed is United States v. Giese, 597 F.2d 1170 (9th Cir.), cert. denied, 444 U.S. 979, 62 L.Ed.2d 405, 100 S.Ct. 480 (1979), in which the prosecutor cross-examined the defendant
A divided court held that the government's use of the book on cross examination was proper. The holding, however, was very narrow:
Giese, at 1190-91.
The decision drew a strong dissent.
Giese, at 1207 (Hufstedler, J., dissenting).
In the present case, we cannot rely on the rationale stated by the majority in Giese. Unlike Giese, Hanson never put forth his writings as an example of his nonviolent character. Thus, his writings are probative only if we accept
Hanson challenges three procedures which resulted in identifying him as the assailant: (1) a composite prepared several hours after the shooting; (2) a photographic montage shown to the victim the next day; and (3) a videotape lineup shown to the victim 2 days after the shooting.
Hanson directs us to the similarities between the composite prepared by Clements and Gilleland (which admittedly represents Hanson) and the composite prepared by the victim. He argues that the two composites are nearly identical,
Under the unusual circumstances of the present case, the preparation and use of the composite was not so suggestive as to require us to remove the identification from the jury's consideration. Often, a single suspect identification is suggestive because the very act of showing the witness one suspect indicates that the police have focused their attention on that person. In contrast, the victim in this case believed that the composite was based entirely on her own description of the assailant; she was not influenced to accept the initial composite as an accurate representation of the suspect. Although in general, single suspect identifications are suggestive, the instant case reveals "little pressure on the witness to acquiesce in the suggestion that such a display entails." Manson, 432 U.S. at 116.
Hanson also challenges the photographic montage as impermissibly suggestive. After viewing the photo montage, we agree that it has some suggestive features. Hanson was one of only two subjects photographed with Polaroid film, and the subjects vary in age and appearance more than is desirable. The differences between the two types of photo paper are minimized, however, because the photos are covered in such a way that essentially only the subject's face is displayed. In addition, while the subjects in the photo montage varied in appearance, these variations did not
Hanson's challenge to the videotape lineup rests primarily on the procedure followed in showing the videotape to the victim. Hanson contends that the police directed the victim's attention toward him by stopping the film when he appeared. The testimony, however, indicates that the police asked the victim to watch the entire tape without comment, and that the tape was then run in its entirety twice. After the second complete viewing, the victim stated that number 4 (Hanson) looked most like the person who shot her. The police then asked her if she would mind looking at the subject again, and the tape was stopped at Hanson's face. After seeing Hanson again, the victim was sure he was the person who shot her. Under these circumstances, we find that the showing of the videotape was not suggestive. Although the police stopped the videotape on Hanson, this occurred only after the victim had independently focused her attention on him.
Our inquiry does not end, however, with examining any suggestiveness that may have occurred in these procedures. We proceed to weigh any suggestiveness against the factors which would indicate that the identifications were nonetheless reliable. Drawing upon the factors enumerated in Manson, we find that, despite any suggestive features, the identifications in this case were admissible. The victim had the opportunity to view her assailant for 2 to 3 minutes before he pulled out the gun. About 1 minute of this was a face-to-face viewing at a distance of 2 to 3 feet in a well lit building. As the victim stated at trial, "[h]e stood right across from me, and I stared at him when he shot me, and I know his face and what it looks like. I can't imagine any way that could have been wiped out of my memory when something that traumatic happens." The victim was highly attentive during the time she saw the assailant; she testified
We agree with Hanson that the identification procedures used in this case were not ideal. Considering all of the factors, however, we believe that any weaknesses in the identifications can be adequately explored before the jury.
OFFICER'S TESTIMONY REGARDING PHOTO MONTAGE
The defense's cross examination of the officer who prepared the photo montage reads in part:
The defendant contends that the trial court erred when it sustained the objection and ordered the jury to disregard the officer's answer, arguing that the officer's testimony was admissible as an expert opinion. The State counters that the testimony was properly excluded because it would not have been helpful to the jury.
ER 702 provides:
EXPERT TESTIMONY ON EYEWITNESS IDENTIFICATION
The defendant proposed calling Dr. Edith Greene to testify about (1) memory and the factors affecting an eyewitness identification, and (2) an experiment she had conducted in which subjects were shown the photo montage from this case and asked to pick out the person who most resembled a description given by the victim. The trial court ruled that Dr. Greene could testify about the factors affecting acquisition of memory, but reserved ruling on other aspects of Dr. Greene's proposed testimony.
When the defendant renewed his proposal to call Dr. Greene, the court ruled that it would exclude the photo montage experiment, but stated that Dr. Greene could testify regarding the effects of stress and weapons' focus. With respect to the rest of the witness's proposed testimony, the court said Dr. Greene could speak only about "those things that lay people have misconceptions of". In light of the trial court's ruling, the defendant decided not to call Dr. Greene to testify.
On appeal, Hanson argues that the court abused its discretion in refusing to permit Dr. Greene to testify fully. Limiting Dr. Greene's testimony, Hanson contends, prevented the defense from adequately educating the jury on the possibilities of misidentification.
In the present case, the trial court did not abuse its discretion in refusing to allow Dr. Greene to testify about the photo montage experiment she conducted. As the State points out, the experiment was structured so as to be irrelevant to the identification made in this case. The experimental subjects were instructed to choose a photo from the photo montage based on the victim's description of her assailant. This was not comparable to the victim's task of choosing a photo based on her own memory of the assailant.
We are unable to determine from the trial court's ruling, however, exactly how much of the rest of the expert's testimony would have been excluded. On retrial, counsel may reoffer the testimony of an expert on eyewitness identifications. The trial court should then define the boundaries of the expert testimony in harmony with the recent case of State v. Moon, supra. Because of the crucial nature of uncorroborated eyewitness identifications in this case, the court should exercise its discretion liberally in allowing expert testimony regarding the factors affecting the reliability of such identifications.
Reversed and remanded for a new trial.
GROSSE and PEKELIS, JJ., concur.
Review denied by Supreme Court March 31, 1987.
"A. Yes, sir.
"Q. Have you aspired to any other vocation in recent years?
"Q. You haven't taken a stab at perhaps becoming a writer?
"A. I believe that's an avocation, not a vocation.
"Q. Not a full-time job but something that you would like to do?
"Q. Mr. Hanson, you have done some writing in your spare time, correct?
"A. Yes, I have.
"Q. Now you described yourself as a person who is basically a nonviolent sort?
"A. I don't believe that I made any description of my violence or nonviolence at this trial.
"Q. Well, I guess I wasn't necessarily referring to the trial. You have indicated here that in the trial you have never hurt anyone?
"A. Not since playground scufflings.
"Q. But you have certainly been exposed to violence in your lifetime?
"A. I have seen the results of violence.
"Q. Have you thought about violence?
"A. I see it every night on television. Yes, I think about it a lot of the time.
"Q. And isn't it true that you have written about violence?
"A. I have written a certain part of a novle [sic] and a very, very small portion of that contained an incident of violence.
"(Side-bar not reported.)
"Q. (Mr. Kurtz) I believe, Mr. Hanson, you have indicated that you have written about violence, is that correct?
"Q. Some of your writings have focused on violence. You have written about, talked about violence involving Viet Nam veterans?
"A. Yes, sir.
"Q. You have also, isn't it true, you sketched out some writings involving a widower who remarries and then the new wife turns on him and that man becomes violent?
"A. No, sir. In this little sketch he thought to have violence done, a half paragraph on a page (gesturing).
"Q. You haven't —
"Q. (Mr. Kurtz) Mr. Hanson, you have heard the phrase that a writer should basically write what he knows about, right? What you know?
"A. I don't believe I have ever heard that phrase.
"Q. Do you see anything, any parallels autobiographical in your writings?
"A. The novel about the Viet Nam thing?
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
When evidence is admitted under this portion of the rule, it must be shown to be logically relevant, and its probative value must be shown to outweigh its potential for prejudice. State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984); State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982).
In this case, the State never indicated how the defendant's writings were logically relevant under ER 404(b). There was no attempt to show, for example, that Hanson wrote about an incident so similar to the crime charged that his writings were relevant to the question of identity.