### The Courtof Appeals ofthe DIVISION I 

### richardd.johnson StateQfWashington °nTeUnio"s^e CourtAdministrator/Clerk Seattle 600UniversityStreet 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 ofWashington, Respondent v. Andre White. Appellant King County, Cause No. 12-8-02046-1.SEA Counsel: Enclosed is a copy of the opinionfiled in the above-referenced appeal which states in part: "Affirmed." 

### Counsel mayfile a motion forreconsideration within 20 days offiling thisopinion pursuant to RAP 

### 12.4(b). Ifcounsel does notwish tofile a motionforreconsideration but does wish to seek review by 

### the SupremeCourt, RAP 13.4(a) provides thatifnomotionforreconsideration ismade, apetitionfor review must be filed in this courtwithin 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 servedwithin ten days after thefiling of thisopinion, orclaim for costs will be deemed waived. 

### Should counsel desire the opinion to be published by the Reporter ofDecisions, a motion topublish should be served and filed within 20 days of the date offiling 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UNPUBLISHED OPINION FILED: March 10,2014 Becker, J. —Andre White challenges the admissibility of a victim's incourt identification of him as thejuvenile who stole a silver necklace. Based on the victim's testimony, the courtfound White guilty oftheft inthe first degree. Finding no abuse ofdiscretion 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 

### ofthe suspect otherthan 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 ithas 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 ofidentification 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 ofirreparable 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 ofdiscretion. 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 thatthe pretrial identification process was impermissibly suggestive. The trial court held a CrR 

### 3.6 hearing. Witnesses atthe hearing were JN, the victim; Ruth Medsker, the principal ofWest Seattle High School; and Detective Brian Ballew ofthe Seattle Police Department. JN testified that on April 27, 2012, he went to a West Seattle fastfood restaurant after school. JN, 14 years old at the time, saw his "friend Joe there 

### hanging out with a few of his buddies." One ofthose 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 itoff, and ran down an alley. JNNo. 69943-1-1/3 

### chased the person forabout 30 seconds until he lost sight of him. JN testified thatthe thief looked back at him twice while fleeing. He recognized the thiefas the "Andre" he had met at the restaurant. JN described him as about five feet, six inches tall atthe time, having a shaved head, and wearing bluejeans and a
coat. JN testified thatwith this information, he immediately went to West Seattle High School, where his friend Joe was a student, figuring that the thiefmight also attend the school. He told Principal Medsker about the theft, and she showed him pictures ofboys who fitthe description he gave. At first, JN testified that his friends at the restauranttold 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 ofsome 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 extracurricularactivities. They looked at about 30 photographs before JN selected a photo ofthe 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 beenNo. 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 herthe 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. Medskertestified she did not recall making any comments about the students inthe 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 ofappellantWhite and five others. JN picked White's 

### photo fromthe montage. The picture was the same one he had selected earlier in Principal Medsker's office. 

### Atthe CrR 3.6 hearing, JN identified White incourt as the person who stole his necklace. He testified that he recognized himbased on his facial 

### structure, shaved head, height, and physical structure. He said he was 99 percentcertain thatWhite was the person who sat across from him at the restaurant on the day ofthe incident. The trial courtfound the identification procedures used by the school 

### principal and the detective impermissiblysuggestive and suppressed the related evidence. But the court allowed JN's in-court identification ofWhite, finding itNo. 69943-1-1/5



### came from an independent source, JN's memory ofthe 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 ofthe witness to view the criminal at the time ofthe crime, (2) the witness' degree of attention, (3) the accuracy ofthe witness' prior description ofthe criminal, (4) the level ofcertainty demonstrated by the witness at the confrontation, and (5) the length oftime between the crime and the confrontation. Biqqers, 409 U.S. at 199-200; Manson. 432 U.S. at 114. "Againstthese factors is to be weighed the 

### corrupting effect ofthe suggestive identification itself." Manson, 432 U.S. at 114. Application ofthe Biqqers factors is illustrated inState v. Booth. 36 Wn. 

### App. 66, 70-71, 671 P.2d 1218 (1983). The court in Booth considered a woman's identification ofthe defendant in connection with a bank robbery conducted by 

### two men wearing Halloweenmasks. Shortly after the robbery, a mailman noticed a man in a nearby area remove his shirt and quicklyenter a maroon carwith Missourilicense plates and a female driver at the wheel. A woman passing by also noticed the carand a man running down the streetwithmoney in his hands. 

### Booth. 36 Wn. App. at 67. The witnesses gave a description to police, who later stopped a vehicle matching thatdescription. Police took the woman to the scene, where officers were holding the defendant inthe back of a patrol car. The

woman identified the defendantthere as the man she had seen running with 

### moneyin his hands. Booth. 36Wn. App. at 67. Although the courtfound this one-man showup procedure to be suggestive, the courtnonetheless held that theNo. 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, itwas a clear day, she observed the defendantfor 45 seconds, she paid particular attention to the car because ithad 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 interms ofJN's opportunity to view White and his degree of attention—unlike cases "where all you see is a fleeting glance ofsomeone as they run away." 

### Also weighing in favor of a finding ofreliability 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 ofconfidence that Whitewas the person who took his necklace as 99 percent, based on his 

### memory of the incident. The court found that JN's accountwas articulate and
observant overall. 

### We conclude the juvenile court did notabuse its discretion inallowing the in-court identification. Affirmed.No. 69943-1-1/7 

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WE CONCUR:

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