The CourtofAppeals

ofthe DIVISION I

richard d. johnson State QfWashington °nTe Unio" s^e

Court Administrator/Clerk Seattle 600 University Street

oeaiue 98101-4170

.. ^ An nnA* (206)464-7750 March 10, 2014 TDD: (206)587-5505

Prosecuting Atty King County Raul Robert Martinez

W554 King County Courthouse 516 3rd Ave Ste W554

516 Third Avenue Seattle, WA, 98104-2362

Seattle, WA, 98104 raul.martinez@kingcounty.gov

paoappellateunitmail@kingcounty.gov

Cynthia B Jones Christopher Gibson

1425 Broadway # 544 1908 E Madison St

Seattle, WA, 98122-3854 Seattle, WA, 98122-2842

cjones@joneslegalgroup.net gibsonc@nwattorney.net

CASE #: 69943-1-1

State of Washington, Respondent v. Andre White. Appellant

King County, Cause No. 12-8-02046-1.SEA

Counsel:

Enclosed is a copy of the opinion filed in the above-referenced appeal which states in part:

"Affirmed."

Counsel may file a motion for reconsideration within 20 days offiling this opinion pursuant to RAP

12.4(b). If counsel does notwish to file a motion for reconsideration but does wish to seek review by

the SupremeCourt, RAP 13.4(a) provides that if no motion forreconsideration is made, a petition for

review must be filed in this court within 30 days.

In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by a cost

bill filed and served within ten days after the filing of this opinion, or claim for costs will be deemed

waived.

Should counsel desire the opinion to be published by the Reporter of Decisions, a motion to publish

should be served and filed within 20 days of the date of filing the opinion, as provided by RAP 12.3 (e).

Sincerely,

Richard D. Johnson

Court Administrator/Clerk

jh

Enclosure

c: The Honorable J. Wesley Saint Clair

Andre White
ZQliiHAR 10 fcrilG-.Qi

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

ANDRE WHITE, d.o.b. 02/27/95,

Appellant.

No. 69943-1-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: March 10,2014

Becker, J. —Andre White challenges the admissibility of a victim's incourt identification of him as the juvenile who stole a silver necklace. Based on

the victim's testimony, the court found White guilty of theft in the first degree.

Finding no abuse of discretion by the trial court, we affirm.

Where a pretrial identification procedure was improper, a court may

nevertheless permit an in-court identification ifthe State establishes by clear and

convincing evidence that the in-court identification was based upon observations

of the suspect other than the inadmissible pretrial identification. U.S. v. Wade,

388 U.S. 218, 240, 87 S. Ct. 1926, 18 L Ed. 2d 1149 (1967). Even ifthe

previous identification procedure was impermissibly suggestive, courts will

uphold an in-court identification if it has an independent source. State v.
No. 69943-1-1/2

Johnson. 132 Wn. App. 454, 459, 132 P.3d 767 (2006), review denied. 159

Wn.2d 1002 (2007).

Reliability "is the linchpin in determining the admissibility of identification

testimony." Manson v. Brathwaite. 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d

140 (1977). "Identification evidence is excluded when there is 'a very substantial

likelihood of irreparable misidentification.'" Johnson. 132 Wn. App. at 458

(internal quotation marks omitted), quoting Neil v. Biqqers. 409 U.S. 188, 198, 93

S. Ct. 375, 34 L. Ed. 2d 401 (1972). We will not reverse the trial court's decision

to admit or exclude the evidence absent an abuse of discretion. Johnson, 132

Wn. App. at 459.

White's trial occurred on November 27, 2012. Pretrial, he moved to

suppress any identification by the victim on the ground that the pretrial

identification process was impermissibly suggestive. The trial court held a CrR

3.6 hearing. Witnesses at the hearing were JN, the victim; Ruth Medsker, the

principal of West Seattle High School; and Detective Brian Ballew of the Seattle

Police Department.

JN testified that on April 27, 2012, he went to a West Seattle fast food

restaurant after school. JN, 14 years old at the time, saw his "friend Joe there

hanging out with a few of his buddies." One of those buddies introduced himself

to JN as "Andre." At the restaurant, JN sat across the table from "Andre" for

about 45 minutes.

As the group left the restaurant, someone approached JN from behind,

grabbed his silver chain necklace, snapped it off, and ran down an alley. JN
No. 69943-1-1/3

chased the person for about 30 seconds until he lost sight of him. JN testified

that the thief looked back at him twice while fleeing. He recognized the thief as

the "Andre" he had met at the restaurant. JN described him as about five feet,

six inches tall at the time, having a shaved head, and wearing blue jeans and a

coat.

JN testified that with this information, he immediately went to West Seattle

High School, where his friend Joe was a student, figuring that the thief might also

attend the school. He told Principal Medsker about the theft, and she showed

him pictures of boys who fit the description he gave. At first, JN testified that his

friends at the restaurant told him the thief's last name was White and he gave the

principal that name. Later, however, he testified he told the police that he came

up with the thief's last name by going through the photos the principal showed

him.

According to JN, as he and the principal looked through photos on

Medsker's computer, the principal commented on the background of some of the

students JN selected as possible suspects. She told JN which students never

had problems at school, received good grades, and were involved in

extracurricular activities. They looked at about 30 photographs before JN

selected a photo of the appellant.

When Medsker clicked on the appellant's photo, his full name was shown

on the computer screen: Andre White. JN identified White as the person who

stole his necklace. JN testified that Medsker then indicated White had been
No. 69943-1-1/4

suspended or expelled from the high school and was attending an alternative

school.

Medsker's testimony differed from JN's on some points. Medsker said JN

gave her the name of "Andrew" or "Andre" but did not provide a last name. While

JN testified that he "spotted a couple that Isaid like might be him," the principal

testified that JN pointed only to White as the suspect. Medsker testified she did

not recall making any comments about the students in the photos JN viewed.

She also testified White had not been expelled from West Seattle High School

but rather chose to go to another school.

Medsker said she told JN to call the police. Detective Ballew testified that

he contacted JN at his school two weeks later and showed him a photo montage

that contained photos of appellant White and five others. JN picked White's

photo from the montage. The picture was the same one he had selected earlier

in Principal Medsker's office.

At the CrR 3.6 hearing, JN identified White in court as the person who

stole his necklace. He testified that he recognized him based on his facial

structure, shaved head, height, and physical structure. He said he was 99

percent certain that White was the person who sat across from him at the

restaurant on the day of the incident.

The trial court found the identification procedures used by the school

principal and the detective impermissibly suggestive and suppressed the related

evidence. But the court allowed JN's in-court identification of White, finding it
No. 69943-1-1/5

came from an independent source, JN's memory of the incident, and was

reliable.

To determine the reliability of identification testimony, courts consider

factors first set out in Biqqers. The factors include: (1) the opportunity of the

witness 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 demonstrated by the witness at the confrontation, and (5) the

length of time between the crime and the confrontation. Biqqers, 409 U.S. at

199-200; Manson. 432 U.S. at 114. "Against these factors is to be weighed the

corrupting effect of the suggestive identification itself." Manson, 432 U.S. at 114.

Application of the Biqqers factors is illustrated in State v. Booth. 36 Wn.

App. 66, 70-71, 671 P.2d 1218 (1983). The court in Booth considered a woman's

identification of the defendant in connection with a bank robbery conducted by

two men wearing Halloween masks. Shortly after the robbery, a mailman noticed

a man in a nearby area remove his shirt and quickly enter a maroon car with

Missouri license plates and a female driver at the wheel. A woman passing by

also noticed the car and a man running down the street with money in his hands.

Booth. 36 Wn. App. at 67. The witnesses gave a description to police, who later

stopped a vehicle matching that description. Police took the woman to the

scene, where officers were holding the defendant in the back of a patrol car. The

woman identified the defendant there as the man she had seen running with

money in his hands. Booth. 36 Wn. App. at 67. Although the courtfound this

one-man showup procedure to be suggestive, the court nonetheless held that the
No. 69943-1-1/6

woman's identification was sufficiently reliable to be admitted into evidence. The

indicia of reliability included the facts that the woman was driving slowly, it was a

clear day, she observed the defendant for 45 seconds, she paid particular

attention to the car because it had Missouri plates and she was from Missouri,

and the identification was unequivocal and took place only 30 to 40 minutes after

she first observed the defendant. Booth. 36 Wn. App. at 71.

JN sat across the table from White for 45 to 50 minutes, a fact the court

found significant in terms of JN's opportunity to view White and his degree of

attention—unlike cases "where all you see is a fleeting glance of someone as

they run away."

Also weighing in favor of a finding of reliability was JN's initial description

of White. He accurately described White as five feet, six inches tall, having a

shaved head, and wearing blue jeans and a coat. In court, he recognized

White's facial structure, haircut, height, and physical structure. Although seven

months had passed since the robbery, JN described his degree of confidence

that White was the person who took his necklace as 99 percent, based on his

memory of the incident. The court found that JN's account was articulate and

observant overall.

We conclude the juvenile court did not abuse its discretion in allowing the

in-court identification.

Affirmed.
No. 69943-1-1/7

^fckc^,

WE CONCUR:

»-f^Wv-JK£ 7