State v. Harrison

1

THE STATE OF WASHINGTON, Respondent, v. ROBERT LORNE HARRISON, Appellant.

No. 83638-2-I

Court of Appeals of Washington, Division 1

January 16, 2024

UNPUBLISHED OPINION

Mann J.

Robert Harrison was convicted by a jury of two counts of robbery in the first degree and one count of unlawful possession of a firearm in the first degree. Harrison appeals and argues that (1) the trial court erred when it permitted evidence of the showup and in-court identifications, (2) the prosecutor's generic tailoring argument violated his constitutional rights, (3) the prosecutor's misstatement of the evidence in closing argument prejudiced him, (4) the trial court erred when it ruled that he had opened the door to otherwise inadmissible and prejudicial evidence, (5) the trial court erred when it denied his motion for a mistrial, and (6) the cumulative impact of multiple errors denied him a fair trial. We affirm.

I

A

On January 6, 2020, Dinasetia Sangkay and her husband Joseph Moningka decided to have dinner in Seattle's University District. The couple arrived around 8 p.m., parked Moningka's Honda Accord on a side street, and began walking toward the restaurant. It was raining and dark at the time, but there were streetlights in the area. As the two walked down the street, Moningka noticed a man sitting on a bench. After they passed the man, he approached and called at them from behind. When Moningka turned to look, the man pointed a handgun at him and demanded his cell phone and car keys. Moningka shouted "Don't shoot," tried to pull Sangkay behind him to shield her, and surrendered his phone, Sangkay's phone, and car keys.

The man then ran back to Moningka's car while the couple fled in the opposite direction. Moningka could see the man entering the car from the driver's door. Moningka borrowed a phone from a nearby pedestrian and called 911. After moving inside the car for a few minutes, the man exited the vehicle and started running toward the Foege building.^[1] About a minute later, however, Moningka watched the man return to the vehicle.

Responding officers arrived at the scene within about one minute of Moningka's 911 call. Seattle Police Officer Samantha Morris saw a man later identified as Harrison standing at the front door of Moningka's vehicle. Because dispatch had not yet described the suspect, Officer Morris did not initially realize the man might be the suspect. Once a description of the suspect was provided Officer Christopher Bentley detained Harrison as he tried to flee the area. Officer Morris identified Harrison as the same person she had seen standing at Moningka's car.

Officers Erik Larson and Benjamin Carter also responded to the 911 call. Moningka described the suspect to Officer Larson as a tall black man wearing a dark hat, blue jacket, and dark pants. When Officer Larson first contacted the victims, he told them, "We have a possible person in custody." Later, Officer Larson told Sangkay, "We caught these people."

Officer Carter left with Moningka to attempt a showup identification of the suspect. While walking to Officer Carter's patrol car, Officer Carter told Moningka that they had someone "detained." During the showup, Moningka positively identified Harrison as the suspect based on his clothing. After receiving information through his ear piece that Moningka had positively identified Harrison, Officer Larson told Sangkay that "This guy's going to jail. He's going to be arrested."

After returning with Moningka, Officer Carter then took Sangkay for a showup identification. After they left, Officer Larson told Moningka, "so it sounds like we found him, right?" Moningka responded, "okay," and Larson followed with, "he's going to go to jail tonight."

Sangkay could not identify Harrison at the showup. Before participating in the showup, however, Sangkay provided a general description of the robber that he was black and wearing a dark hoody and a hat.

When officers searched Harrison, they found an empty pistol holster tied to his waist and both Sangkay's and Moningka's cell phones in his pocket. In Moningka's car officers discovered a loaded .9 mm handgun on the front passenger floorboard under a sunshade along with the car keys.

B

Harrison was charged with two counts of robbery in the first degree (count 1 and 2), each including a firearm sentencing enhancement, and one count of unlawful possession of a firearm in the first degree (count 3). Harrison denied the charges, arguing that he had been misidentified as the suspect.

Harrison moved during pretrial to suppress Moningka's showup identification because the procedures used were impermissibly suggestive and, under the totality of circumstances, produced an unreliable and inadmissible result.

The trial court found that Moningka's showup identification was impermissibly suggestive by failing to follow police department procedures.^[2] But the court found that under the totality of circumstances, Moningka's identification was sufficiently reliable and determined it admissible. The trial court determined Sangkay's interactions involving the officers and Moningka was highly improper and suppressed all evidence of Sangkay's involvement in the showup identification.

Harrison also asked that the State be prohibited from asking the victims to identify Harrison in court. Citing State v Redmond, 75 Wn.2d 62, 448 P.2d 938 (1968), Harrison argued that without independent evidence supporting an in-court identification the State should be prevented from asking the victims to identify Harrison. Given that Sangkay never identified Harrison, and Moningka only identified him based on clothing, the trial court asked the State how it could possibly make the showing necessary to allow a positive in-court identification. The prosecutor responded:

Your Honor, I guess the State's point in asking the question in court would just be to show the jury like they do not recognize this person as the person, and it just further goes to their credibility that they are willing to say this and not be persuaded by any kind of outside influences. So that would be the State's only purpose in doing so. So that-I guess to answer the Court's question, do I have any reason to believe that they would say that this is the person? No, I do not.

The trial court ruled, "I'll allow the questions about whether the witnesses are able to identify Mr. Harrison in court, given that I don't expect either one to be able to do so."

Harrison was tried first on the two robbery charges.^[3] At trial, Moningka testified that he recognized Harrison as the individual who robbed him. Harrison's counsel tried to impeach the in-court identification, but Moningka said that he could identify Harrison. Sangkay testified that she recognized no one in the courtroom as the robber.

Harrison testified that he was passing through the area on his way to buy drugs from a friend, which he intended to resell at nightclubs. Harrison further testified that he saw a man, purportedly the real robber, sitting in the driver's seat of Moningka's car and then getting out of the car and walking toward the Foege building. After the man left the car and walked away, Harrison decided to steal whatever he could find inside the unattended car. Harrison testified that he found two cell phones and a gun inside a holster.

The jury found Harrison guilty on all three charges.^[4]

Harrison appeals.

II

Harrison challenged the trial court's decision not to suppress both the showup and in-court identifications.

"In 1977, the United States Supreme Court held that the due process clause of the Fourteenth Amendment compels exclusion of eyewitness identification evidence that (1) was obtained by an unnecessarily suggestive police procedure and (2) lacks reliability under the totality of circumstances." State v. Derri, 199 Wn.2d 658, 673-74, 511 P.3d 1267(2022) (citing Manson v. Brathwaite, 432 U.S 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Hilliard, 89 Wn.2d 430, 438-39, 573 P.2d 22 (1977)).

Challenging a police identification procedure requires a two-part analysis. Derri, 199 Wn.2d at 674. First, the defendant must establish by a preponderance of the evidence that the procedure used was unnecessarily suggestive. Derri, 199 Wn.2d at 674. If it was, the court then considers whether, under the totality of the circumstances, the unnecessarily suggestive procedure created a very substantial likelihood of irreparable misidentification. Derri, 199 Wn.2d at 674.

The trial court's findings of fact in a suppression motion are reviewed for "substantial evidence." State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Evidence is "substantial" when it is sufficient "to persuade a fair-minded person of the truth of the stated premise." Garvin, 166 Wn.2d at 249. Conclusions of law are reviewed de novo. Garvin, 166 Wn.2d at 249.

A

Harrison argues that the trial court erred when it permitted evidence of Moningka's showup identifications because there was a substantial likelihood of irreparable misidentification. We disagree.

Because Officer Carter told Moningka that they had someone detained and they planned to see if Moningka could identify them, the trial court determined that Moningka's showup identification was impermissibly suggestive. We agree with the trial court. Thus, we look to the second part of the Derri analysis-whether the procedure created a very substantial likelihood of irreparable misidentification.

Admission of an identification obtained through a suggestive procedure does not violate due process if it possesses "sufficient aspects of reliability." Derri, 199 Wn.2d at 674. Reliability is assessed using the five Biggers factors: (1) the opportunity of the witness to view the criminal...