State Of Washington v. Abdishakur Ibrahim ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
No. 73413-0-1
Respondent, ) (consolidated with 73592-6-1)
v. ) DIVISION ONE ^ J&
ABDIHAKIM A. MOHAMED,
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Defendant, )
ALIABDIALIandABDISHAKURI. ) UNPUBLISHED OPINION ri "f
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IBRAHIM, and each of them, )
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Appellants. ] FILED: September 26, 2016
Becker, J. — A show-up identification procedure was not unnecessarily
suggestive when an officer told a car robbery victim that they were going to
possibly identify suspects who were in his car when it was stopped. When one of
the defendants was removed from the courtroom for disruptive behavior, the trial
court adequately informed him that he would be allowed to return upon
assurance that his conduct would improve.
We affirm.
FACTS
Michael Harris was in downtown Seattle offering people rides in his car for
money on an October evening in 2014. He agreed to drive three men to Tukwila.
No. 73413-0-1
When the men got out of the car, one of them pulled a gun, held it to Harris's
head and told him not to move. All three men got into Harris's car and drove off.
Harris called the police. Within about an hour, officers stopped Harris's
car with three men inside. Harris was brought to the location, where he positively
identified all three suspects as being involved in the car robbery. The State
charged all three men with first degree robbery. A jury convicted them as
charged. Two—appellants Abdishakur Ibrahim and Ali AN—have appealed.
Their appeals have been consolidated.
SHOW-UP IDENTIFICATION PROCEDURE
Both appellants moved to suppress the identification evidence on the
basis that the show-up identification procedure was unduly suggestive. At the
suppression hearing, the witness was Deputy Jose Bartolo, the responding
officer who was with Harris when a broadcast came over his police radio that
officers had stopped Harris's car. Bartolo testified that he told Harris that his car
"was being stopped at a certain location. And that we'd be going to that location"
to possibly identify three subjects who "were in the vehicle."
A number of police vehicles were present with their flashers on when
Bartolo and Harris arrived. Bartolo parked with his car's lights directed towards
Harris's car. He turned his spotlight on. Each of the three suspects, handcuffed,
was brought separately to this lit area, within about two car lengths of Bartolo's
car. Bartolo testified that Harris identified them as the three men who rode with
him to Tukwila and robbed him.
No. 73413-0-1
The trial court entered findings of fact and conclusions of law and denied
the motion to suppress. We review a trial court's findings of fact on a motion to
suppress to determine whether they are supported by substantial evidence.
State v. Lew, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006). Here, no error is
assigned to the findings of fact, so they are verities on appeal. Lew, 156 Wash. 2d
at 733. We review conclusions of law pertaining to suppression of evidence de
novo. Lew, 156Wn.2d at 733.
A defendant asserting that a police identification procedure denied him
due process must show that the procedure was unnecessarily suggestive.
Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). If the
defendant makes this showing, the court reviews the totality of the circumstances
to determine whether the suggestiveness created a substantial likelihood of
irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct.
2243, 53 L. Ed. 2d 140(1977).
A showup is not unnecessarily suggestive just because the suspects were
handcuffed and standing near a police car. See State v. Fortun-Cebada, 158
Wash. App. 158, 170, 241 P.3d 800 (2010) ("By itself, the presence of a suspect in
handcuffs is not enough to show the show-up procedure was unduly
suggestive."); State v. Shea, 85 Wash. App. 56, 60, 930 P.2d 1232 (1997) (same);
State v. Guzman-Cuellar. 47 Wash. App. 326, 336, 734 P.2d 996 (1987) ("The
thrust of Guzman's argument is that he was handcuffed and standing
approximately 15 feet from the police car during the showup. These facts alone
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are insufficient to demonstrate unnecessary suggestiveness"), review denied,
108Wn.2d 1027(1987).
Appellants argue that what made the showup unduly suggestive in this
case was the fact that Harris learned from Bartolo and maybe also from the
police broadcast that he was going to be taken to the scene where his car was
stopped to possibly identify three individuals. They cite State v. McDonald, 40
Wash. App. 743, 744, 700 P.2d 327 (1985). In McDonald, the victim failed to
identify the defendant, number 3, in a lineup. After the lineup, a detective told the
victim that the subjects arrested following his robbery were numbers 3 and 5 in
the lineup. McDonald, 40 Wash. App. at 744. At trial, the victim was allowed to
make an in-court identification of the defendant. This court found the detective's
statement to be impermissibly suggestive: "He literally told [the victim], 'This is
the man." McDonald, 40 Wash. App. at 746. The facts here are not comparable.
Bartolo merely told Harris they were going to "possibly identify" three men who
were in his car when it was stopped.
Appellants also argue that the use of Bartolo's spotlight and the "unusual"
number of police made the showup unnecessarily suggestive. We disagree. As
the trial court said in response to the spotlight argument, "I know that the
spotlight was used, which would make sense considering it's 11:00 p.m. at night.
And if a spotlight hadn't been used, if lighting hadn't been used, that would be the
argument in front of me. That there was insufficient lighting." And appellants cite
nothing in the record indicating that an "unusual" number of police were present.
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The trial court did not err in its conclusion that defendants failed to meet
their burden to demonstrate that the show-up procedure was unnecessarily
suggestive. Therefore, we need not proceed to the second step of reviewing the
totality of the circumstances to determine whether the suggestiveness created a
substantial likelihood of irreparable misidentification. Guzman-Cuellar, 47 Wn.
App. at 335.
EYEWITNESS IDENTIFICATION INSTRUCTION
At trial, Ali proposed an eyewitness identification jury instruction.1 Ibrahim
stated his position on two other defense-proposed instructions, but he did not
mention the eyewitness instruction. The court declined to give the eyewitness
instruction proposed by Ali, and Ibrahim took no exceptions. Ibrahim now argues
1Ali proposed the Ninth Circuit jury instruction 4.11, which reads:
You have heard testimony of eyewitness identification. In
deciding how much weight to give to this testimony, you may
consider the various factors mentioned in these instructions
concerning credibility of witnesses.
In addition to those factors, in evaluating eyewitness
identification testimony, you may also consider:
(1) the capacity and opportunity of the eyewitness to observe
the offender based upon the length of time for
observation and the conditions at the time of observation,
including lighting and distance;
(2) whether the identification was the product of the
eyewitness's own recollection or was the result of
subsequent influence or suggestiveness;
(3) any inconsistent identifications made by the eyewitness;
(4) the witness's familiarity with the subject identified;
(5) the strength of earlier and later identifications;
(6) lapses of time between the event and the identification^];
and
(7) the totality of the circumstances surrounding the
eyewitness's identification.
Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury
Instructions for the District Courts of the Ninth Circuit 4.11 (2010)
(alteration in original).
No. 73413-0-1
that the trial court erred in declining to give the jury a specific instruction about
eyewitness testimony such as the one proposed by Ali.
The State argues that because Ibrahim did not take exception to the
court's refusal to give the instruction, he invited the error he asserts on appeal.
To be invited, an error must be the result of an affirmative, knowing, and
voluntary act. State v. Lucero. 152 Wash. App. 287, 292, 217 P.3d 369 (2009),
rev'd on other grounds. 168 Wash. 2d 785, 230 P.3d 165 (2010). Ibrahim did not
demonstrate the kind of affirmative conduct that can be classified as inviting the
error.
Nevertheless, we generally will not consider an issue that is raised for the
first time on appeal. RAP 2.5. Below, Ibrahim did not raise any issue concerning
an instruction on eyewitness testimony. Ibrahim makes a cursory claim in his
reply brief that failing to give a special instruction on eyewitness testimony is a
manifest error affecting a constitutional right. We reject this claim. The trial court
gave pattern instructions on witness credibility2 and the State's burden of proof.3
2 You are the sole judges of the credibility of each witness.
You are also the sole judges of the value or weight to be given to
the testimony of each witness. In considering a witness's
testimony, you may consider these things: the opportunity of the
witness to observe or know the things he or she testifies about; the
ability of the witness to observe accurately; the quality of a
witness's memory while testifying; the manner of the witness while
testifying; any personal interest that the witness might have in the
outcome or the issues; any bias or prejudice that the witness may
have shown; the reasonableness of the witness's statements in the
context of all the other evidence; and any other factors that affect
your evaluation or belief of a witness or your evaluation of his or her
testimony.
No. 73413-0-1
These instructions, taken together, are generally sufficient to charge the jury with
deciding whether the State has proven beyond a reasonable doubt that the
witness correctly identified the defendant. State v. Allen. 176 Wash. 2d 611, 686,
294 P.3d 679 (2013). In view of Allen, there was no manifest error. The issue is
waived because it was not raised in the trial court.
RIGHT TO BE PRESENT
Ali interrupted the prosecutor's closing argument with an accusation that
defense counsel was giving him drugs and offering him money in exchange for
sex. At the court's instruction, a jail guard removed Ali from the courtroom.
When the guard returned, he reported that Ali said he did not want to return to
court, did not want to talk to his attorney, and wanted only to go back to his jail
cell.
If a defendant is removed from the courtroom during his trial, he must be
allowed to reclaim his right to be present if he assures the court that his conduct
will improve. Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353
(1970); State v. Chappie, 145 Wash. 2d 310, 36 P.3d 1025 (2001). The trial court,
aware of this rule, asked defense counsel to advise Ali that he would be
permitted to return to the courtroom if he promised to behave appropriately.
When the court returned from recess, All's attorney stated on the record that he
3 A defendant is presumed innocent. This presumption
continues throughout the entire trial unless during your
deliberations you find it has been overcome by the evidence
beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and
may arise from the evidence or lack of evidence. It is such a doubt
as would exist in the mind of a reasonable person after fully, fairly,
and carefully considering all of the evidence or lack of evidence.
No. 73413-0-1
had tried to make contact with Ali in the jail and that Ali refused to communicate
with him. Closing argument then proceeded without Ali present. Ali argues that
the trial court did not give him an appropriate opportunity to reclaim his right to be
present.
There are no specific requirements governing the procedure a trial court
uses to advise an ejected defendant of his right to reclaim the right to be present.
Chappie, 145 Wash. 2d at 325-26. In Chappie, the trial court sent defense counsel
to ask whether the defendant wanted to return and, if so, to ask if he could
conduct himself appropriately. Chappie, 145 Wash. 2d at 324. Defense counsel
reported back, on the record, that the defendant would not agree to behave
differently if allowed to return. Chappie, 145 Wash. 2d at 324. This was held to be
adequate advisement. Chappie. 145 Wash. 2d at 326.
Ali's case is like Chappie except that Ali refused to speak with defense
counsel. Ali now argues that because the court knew he was unhappy with his
attorney and had previously tried to have him discharged, the court should not
have relied on the attorney to deliver the message and should have devised
some other method, perhaps by appointing conflict counsel, sending the bailiff
with a message, or drafting an order to give to Ali. These options were not
proposed to the trial court at the time.
Ali had previously tried to delay the trial based on his alleged
dissatisfaction with defense counsel. His outrageously disruptive behavior
occurred during closing argument. Ali had two codefendants who both moved for
No. 73413-0-1
a mistrial based on his outburst. We conclude the steps taken by the court were,
under the circumstances, adequate to protect Ali's right to be present at trial.
Affirmed.
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WE CONCUR:
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