Jeffrey Eric Brigman v. State of Alaska ( 2022 )

NOTICE
The text of this opinion can be correct before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other
formal errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JEFFREY ERIC BRIGMAN,
Court of Appeals No. A-12727
Appellant, Trial Court No. 3AN-13-09635 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2724 — April 22, 2022
Appeal from the Superior Court, Third Judicial District,
Anchorage, Kevin M. Saxby, Judge.
Appearances: Justin N. Gillette, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer,
Senior Judge.*
Judge ALLARD.
*
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
Jeffrey Eric Brigman was convicted, following a jury trial, of felony driving
under the influence.1 In his original appeal, Brigman argued that the superior court erred
when it failed to suppress an out-of-court eyewitness identification that resulted from a
showup procedure.2 Because the superior court had not analyzed the showup
identification under the Alaska Supreme Court’s newly adopted Young standard, we
remanded Brigman’s case so that the superior court could conduct that analysis.3
On remand, the superior court found that the showup identification was
sufficiently reliable under Young and was therefore admissible at trial. Brigman now
appeals that ruling. For the reasons explained here, we conclude that the superior court
did not err in its Young analysis.
Relevant facts
Around 10:00 p.m. on a September evening in 2013, a woman stepped out
of a gas station in Anchorage to find that her car had been stolen. A few minutes later,
the driver of the stolen car crashed into a sidewalk area near 10th Avenue and Juneau
Street.
Thomas Jenkins, who was walking his dog on 10th Avenue, witnessed the
crash, and he approached the driver to offer assistance. Jenkins believed, based on his
contact with the driver, that the driver was under the influence of something. Jenkins
1
AS 28.35.030(n).
2
A showup is essentially a single-person lineup. A single suspect is presented to a
witness to see if the witness can make an identification. These often occur at or near the
scene of a crime soon after it takes place. See Brigman v. State, 2020 WL 704854 (Alaska
App. Feb. 12, 2020) (unpublished).
3
Id. (citing Young v. State, 374 P.3d 395 (Alaska 2016)).
–2– 2724
spoke to the driver briefly before leaving to retrieve his cell phone and call 911.4 The
driver left the scene before Jenkins returned.
When Jenkins called 911, he described the driver as a man with black hair,
gray clothing, and wearing a zippered hoodie. Jenkins thought the man was white, but
he could not be sure. Jenkins also told the 911 operator that the man might have walked
south on Ingra Street when he left the scene.
Almost immediately after this 911 call, Officer Angelina Fraize spotted and
detained a white male suspect with dark hair and dark clothing walking south on Ingra
Street, approximately a block from the crash scene. This suspect was Brigman. At trial,
Officer Fraize described Brigman as “obviously intoxicated,” “sweaty,” and “nervous.”
Another officer, Steven Childers, brought Jenkins to where Officer Fraize
was holding Brigman, so that the police could conduct a showup identification — asking
Jenkins if he could identify Brigman as the driver he had spoken to several minutes
earlier. To facilitate this showup, Officer Fraize had Brigman stand next to her police
car in handcuffs.
Before asking Jenkins whether he could identify the man standing next to
the patrol car, Officer Childers specifically instructed Jenkins that this man might or
might not be the right person. Jenkins identified Brigman as the driver of the crashed
vehicle.
At trial, Jenkins testified to his identification of Brigman. Jenkins testified
that Brigman was wearing a gray hoodie at the time of the crash. (Brigman was not
4
It was evening when Jenkins observed the driver. Jenkins testified that there was a
street lamp about twenty-five feet from where the crash occurred that offered some additional
light by which to see.
–3– 2724
wearing a hoodie in the photograph taken of him at the scene of the showup
identification.)
Another eyewitness to the crash also identified Brigman at trial. This
second eyewitness testified that he was drunk when he witnessed the crash and that the
police never asked him to participate in a showup identification or any other out-of-court
identification. Instead, at trial, this eyewitness was shown the photograph of Brigman
taken during the showup identification with Jenkins. This second eyewitness identified
Brigman as the driver of the crashed vehicle, although he stated that he could not be sure.
The eyewitness had previously described the driver as a white male adult wearing a gray
shirt with wavy, dark-colored, shoulder-length hair. (Brigman’s hair in the photograph
is shorter than shoulder-length.)
Brigman was convicted at trial.
Brigman’s motion to suppress and our remand to the superior court
Prior to trial, Brigman moved to suppress the results of the showup
identification by Jenkins, arguing that the showup procedure was improperly suggestive
and that the resulting identification was therefore unreliable.
The superior court held an evidentiary hearing on this motion. After
evaluating the showup under the then-existing legal test set forth in Anderson v. State
and Manson v. Braithwaite,5 the court ruled that the result of the showup was admissible.
However, after the superior court made its ruling, the Alaska Supreme
Court adopted a new test for evaluating the reliability of out-of-court police identification
5
Anderson v. State, 123 P.3d 1110, 1116 (Alaska App. 2005); Manson v. Braithwaite,
432 U.S. 98, 114 (1977).
–4– 2724
procedures in Young v. State.6 In Brigman’s initial appeal, the State conceded that the
Young test applied to Brigman’s case, and we therefore remanded the case to the superior
court to conduct the appropriate analysis under Young.7
An overview of the Young test
In Young v. State, the Alaska Supreme Court held that the
Anderson/Braithwaite test for evaluating the reliability of out-of-court eyewitness
identifications did not adequately protect a defendant’s right to due process under the
Alaska Constitution.8 In its place, the court adopted a new test that was modeled after
the test set forth by the New Jersey Supreme Court in State v. Henderson.9
The supreme court had two principal reasons for adopting this new test.
First, the Young test corrected some of the deficiencies of the former test by requiring
trial judges to consider scientifically grounded variables when assessing the reliability
of an out-of-court identification procedure conducted by the police.10 Second, in cases
where the trial court does not order suppression of an out-of-court identification, the
6
Young, 374 P.3d at 426-28.
7
Brigman, 2020 WL 704854, at *1.
8
Young, 374 P.3d at 412.
9
Id. at 417-27 (citing State v. Henderson, 27 A.3d 872 (N.J. 2011)).
10
Id. at 412-29; see Henderson, 27 A.3d at 918-22 (outlining the problems inherent in
the prior eyewitness identification test under Braithwaite and explaining the variables to be
considered under the new test).
–5– 2724
Young test prescribed improved jury instructions to assist jurors in evaluating the out-of­
court identification according to these scientifically grounded variables.11
Under Young, a trial court is required to consider two sets of variables when
evaluating whether to suppress the results of an out-of-court eyewitness identification.
The supreme court referred to the first group of variables as “system variables” (those
variables that are within the control of the law enforcement officers who are conducting
the identification procedure) and “estimator” variables (those variables intrinsic to the
event that are not within the control of law enforcement).12
Under the Young test, a defendant who seeks suppression of an out-of-court
identification must show “some evidence,” tied to a system variable, tending to show that
the identification procedure was tainted by suggestiveness that could lead to a mistaken
identification.13 System variables include both how the identification was structured
(e.g., whether it was the product of a showup, a lineup, or a photographic array) and the
procedures surrounding the identification (e.g., the composition of the lineup, whether
the witness received properly neutral pre-identification instructions or, instead, improper
confirmatory feedback). Young outlines the following non-exhaustive list of system
11
Young, 374 P.3d at 428; see Henderson, 27 A.3d at 924-26 (directing the development
of enhanced jury instructions).
12
Young, 374 P.3d at 416-25 (discussing variables).
13
Id. at 427. The supreme court explained that a suppression motion must generally be
based on a system variable because state action is required to trigger a due process
suppression analysis. Id.; see also Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973)
(“For [the due process] clause to apply there must be state action and the deprivation of an
individual interest of sufficient importance to warrant constitutional protection.”). But see
Henderson, 27 A.3d at 920 (recognizing this same requirement, but pointing to one New
Jersey case, State v. Chen, 208 N.J. 307 (2011), where conduct by a private actor was
sufficient to trigger an evidentiary hearing).
–6– 2724
variables for a trial court to consider when determining whether a defendant has met this
initial burden of showing “some evidence” of suggestiveness:
1. Blind Administration. Was the identification procedure performed
double-blind (i.e., was the person administering the procedure kept ignorant of the
identity of the person who was suspected)? If double-blind administration of a photo
lineup or physical lineup was impractical, did the police at least use a technique to ensure
that the administrator had no knowledge of where the suspect appeared in the photo array
or lineup?14
2. Pre-identification Instructions. Did the administrator provide neutral
pre-identification instructions to the witness being asked to make the identification,
warning the witness that the suspect may not be present in the lineup and that the witness
should not feel compelled to make an identification?15
3. Lineup Construction. Did the photo array or lineup contain only one
suspect embedded among at least five innocent fillers? Did the suspect stand out from
other members of the lineup?16
14
Young, 374 P.3d at 417-18; see Henderson, 27 A.3d at 897 (“The consequences are
clear: a non-blind lineup procedure can affect the reliability of a lineup because even the
best-intentioned, non-blind administrator can act in a way that inadvertently sways an
eyewitness trying to identify a suspect. An ideal lineup administrator, therefore, is someone
who is not investigating the particular case and does not know who the suspect is.”).
15
Young, 374 P.3d at 418-19; see Henderson, 27 A.3d at 897 (“Pre-lineup instructions
help reduce the relative judgment phenomenon . . . . Without an appropriate warning,
witnesses may misidentify innocent suspects who look more like the perpetrator than other
lineup members. . . . In one experiment, 45% more people chose innocent fillers in
target-absent lineups when administrators failed to warn that the suspect may not be there.”).
16
Young, 374 P.3d at 419-20; see Henderson, 27 A.3d at 897 (“Properly constructed
(continued...)
–7– 2724
4. Feedback and Recording Confidence. Did the witness receive any
feedback from the police or from another witness before, during, or after the
identification procedure? If the witness made a statement regarding their level of
confidence in the identification, did the administrator record the witness’s statement of
confidence immediately after the identification, before any possibility of confirmatory
feedback?17
5. Showups. Was the witness identified in a showup? Did the police
perform the showup more than two hours after the event? Did the police warn the
witness that the person they were about to view may not be the perpetrator, and that the
witness should not feel compelled to make an identification?18
6. Multiple Viewings. Was the witness exposed to the suspect after the
crime but before making the identification? Did the witness fail to identify the suspect
in an earlier procedure?19
16
(...continued)
lineups test a witness’[s] memory and decrease the chance that a witness is simply
guessing.”).
17
Young, 374 P.3d at 420; see Henderson, 27 A.3d at 900 (“Confirmatory feedback can
distort memory. As a result, to the extent confidence may be relevant in certain
circumstances, it must be recorded in the witness’[s] own words before any possible
feedback. To avoid possible distortion, law enforcement officers should make a full record
— written or otherwise — of the witness’[s] statement of confidence once an identification
is made. Even then, feedback about the individual selected must be avoided.”).
18
Young, 374 P.3d at 420-21; see Henderson, 27 A.3d at 903 (“By their nature, showups
are suggestive and cannot be performed blind or double-blind.”).
19
Young, 374 P.3d at 421; see Henderson, 27 A.3d at 900 (“Viewing a suspect more
than once during an investigation can affect the reliability of the later identification. The
problem . . . is that successive views of the same person can make it difficult to know
(continued...)
–8– 2724
Again, Young states that a defendant need only show “some evidence” of
suggestiveness from the above non-exhaustive list of system variables in order to obtain
an evidentiary hearing on their suppression claim.20
If the defendant establishes the need for an evidentiary hearing, the burden
of production shifts to the State. The State must offer evidence that, even though the
eyewitness identification procedure was potentially subject to suggestive influences
arising from system variables, the identification is nevertheless reliable.21 However, the
ultimate burden of persuasion remains with the defendant.22 In order to obtain
suppression of the out-of-court identification (and any subsequent in-court identification
by the witness), the defendant must show a “very substantial likelihood of irreparable
misidentification.”23
19
(...continued)
whether the later identification stems from a memory of the original event or a memory of
the earlier identification procedure.”).
20
Young, 374 P.3d at 427.
21
Id. The State can also offer proof to rebut the defendant’s claim of suggestiveness.
For example, if the defendant claims that there is “some evidence” that the witness received
confirmatory feedback, the State may respond by introducing evidence to the contrary. If the
court determines that the confirmatory feedback did not occur and that no other evidence of
suggestiveness from a system variable otherwise exists, then suppression can be denied
without additional analysis of the estimator variables. See Henderson, 27 A.3d at 920 (“[At
the hearing, t]he State must then offer proof to show that the proffered eyewitness
identification is reliable — accounting for system and estimator variables — subject to the
following: the court can end the hearing at any time if it finds from the testimony that
defendant’s threshold allegation of suggestiveness is groundless.”).
22
Young, 374 P.3d at 427.
23
Id. (quoting Henderson, 27 A.3d at 920).
–9– 2724
To evaluate whether the defendant has made the required showing, a trial
court must consider both the system variables and the estimator variables described in
Young.24 Again, estimator variables are those factors intrinsic to the event and not within
the control of law enforcement, such as environmental variables and the characteristics
of the witness and the suspect.25 Some examples of estimator variables the trial court
must consider include:
1. Stress. Did the witness view the perpetrator under particularly stressful
conditions?26
2. Weapons Focus. Was a weapon, or another unusual or distracting
object, visible during the time the witness was viewing the perpetrator?27
3. Duration of View. How long was the witness able to see the
perpetrator?28
24
Id.25
Id. at 417.
26
Id. at 422 (“Acknowledging the negative effect of stress on the reliability of
eyewitness identifications may help jurors counteract the common misconception that faces
seen in highly stressful situations can be burned into a witness’s memory.” (internal quotation
marks and citation omitted)).
27
Id. at 422-23; see Henderson, 27 A.3d at 904-05 (“When a visible weapon is used
during a crime, it can distract a witness and draw his or her attention away from the culprit.”).
28
Young, 374 P.3d at 423.
– 10 – 2724
4. Environmental Conditions of View. What environmental conditions,
such as distance and lighting, may have affected the witness’s ability to view the
perpetrator?29
5. Witness Characteristics. Were there any characteristics of the witness,
such as mental and physical health, age, vision, or alcohol or drug use, that may have
compromised the witness’s ability to see and identify the perpetrator?30
6. Perpetrator Characteristics. Was the perpetrator disguised or otherwise
difficult to describe? Has the suspect’s appearance changed since the crime?31
7. Race and Ethnicity Bias. Does the case involve a cross-racial
identification?32
8. Memory Decay/Retention Interval. How much time passed between the
crime and the identification procedure?33
9. Co-Witnesses. Did the witness discuss the identification or receive
information about the suspect from co-witnesses or other non-state actors?34
29
Id.
30
Id. at 423-24.
31
Id. at 424 (“Masks, sunglasses, hats, hoods, and other things that hide the hair and
hairline affect witnesses’ ability to accurately identify a perpetrator.”).
32
Id.
33
Id. at 424-25.
34
Id. at 425.
– 11 – 2724
This is not a complete list of the estimator variables that a trial court should
consider.35 The Young test recognizes that the scientific research pertaining to
eyewitness identification continues to evolve and that trial courts should take into
account this developing research when assessing the reliability of eyewitness
identifications.36
One question that the Young opinion did not directly answer is whether the
Biggers factors — the factors that were used in the former Anderson/Braithwaite test —
are still valid factors to consider under the new test.
Under Anderson/Braithwaite, a defendant was required to show that the
procedures used to obtain the out-of-court eyewitness identification were “unnecessarily
suggestive.”37 Once this showing was made, the trial court was required to consider “the
totality of the circumstances” in determining whether the identification was nevertheless
reliable enough to be admitted at trial.38 In assessing the totality of the circumstances,
the court was required to consider the five factors articulated in Neil v. Biggers.39 These
factors were: (1) the witness’s opportunity to view the suspect at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy of any prior description of the
suspect; (4) the level of certainty demonstrated by the witness during the identification
35
Id. at 427.
36
Id. (“Because of this, trial courts should not hesitate to take expert testimony that
explains, supplements, or challenges the application of these variables to different fact
situations.”).
37
Anderson v. State, 123 P.3d 1110, 1116 (Alaska App. 2005); Manson v. Braithwaite,
432 U.S. 98, 114 (1977).
38
Anderson, 123 P.3d at 1116.
39
Braithwaite, 432 U.S. at 114 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
– 12 – 2724
procedure; and (5) the time interval between the crime and the out-of-court
identification.40
Although the Young opinion did not directly address the current status of
the Biggers factors, the supreme court indicated that its new test was modeled after the
test adopted by the New Jersey Supreme Court in Henderson.41 And in Henderson, the
New Jersey Supreme Court made clear that the Biggers factors should still be considered
among the estimator variables, albeit with some important caveats.42 The New Jersey
Supreme Court cautioned trial courts to be aware of the scientific criticism that the
Biggers factors have generated. Chief among these criticisms is Biggers’s over-emphasis
on a witness’s level of certainty.43
Scientific studies have shown that a witness’s level of certainty is a poor
indicator of the reliability of the witness’s identification — in part, because a witness’s
level of certainty is often a product of suggestive procedures such as confirmatory
feedback.44 Therefore, the New Jersey Supreme Court directed trial courts to consider
whether the witness expressed high confidence in the identification “before receiving any
feedback or other [confirmatory] information.”45 The New Jersey Supreme Court also
encouraged trial courts to consider using protective orders to block the government from
introducing evidence of a witness’s high degree of certainty, even when the witness’s
40
Biggers, 409 U.S. at 199-200.
41
Young, 374 P.3d at 427.
42
State v. Henderson, 27 A.3d 872, 918-22 (N.J. 2011).
43
Id. at 918.
44
Id.
45
Id. at 922 (emphasis added).
– 13 – 2724
out-of-court identification is not suppressed, if the witness’s level of certainty appears
to have been influenced by suggestive procedures.46
Another criticism of the Biggers framework, discussed in both Henderson
and Young, is that three of the Biggers factors — the witness’s opportunity to view the
crime, the witness’s degree of attention, and their level of certainty — often rely solely
on the witness’s self-reporting.47 Studies have shown that witnesses frequently
overestimate how long they saw the perpetrator and their degree of attention to the
perpetrator.48 They also often underestimate the distance between themselves and the
perpetrator.49 Therefore, to the extent possible, a trial court should use objective
measures when assessing these estimator variables rather than rely exclusively on a
witness’s self-reporting.
Ultimately, the Young test requires a trial court to decide whether the
defendant has shown, by a preponderance of the evidence, that the out-of-court
identification procedure is tainted by a “very substantial likelihood of irreparable
misidentification.”50 The trial court’s analysis of this question must be based on a
46
Id. at 925; cf. State v. Lawson, 291 P.3d 673, 695 (Or. 2012) (suggesting that trial
courts can satisfy Evidence Rule 403 by admitting an eyewitness’s out-of-court identification
but excluding the accompanying statement regarding the witness’s level of certainty, because
such statements can often be persuasive to jurors but actually have limited reliability).
47
Young v. State, 374 P.3d 395, 425-26 (Alaska 2016); Henderson, 27 A.3d at 918.
48
Young, 374 P.3d at 420 n.140, 423.
49
Id. at 423.
50
Id. at 427 (quoting Henderson, 27 A.3d at 920).
– 14 – 2724
consideration of both the system variables and the estimator variables.51 The court’s
analysis should also be informed by accepted scientific studies regarding the inherent
perils that can lead to flawed eyewitness identifications.52
If the trial court finds that the defendant has shown a “very substantial
likelihood of irreparable misidentification,” the trial court must suppress the out-of-court
identification and preclude the witness from providing any in-court identification.53 If
the trial court finds that the defendant has not made the requisite showing, the court must
still provide the kind of tailored jury instructions described in Young to ensure that jurors
understand the factors that can affect the reliability of an out-of-court eyewitness
identification.54
The Young test applied to the facts of Brigman’s case
Here, there is no question that Brigman met his initial burden of showing
“some evidence” of suggestiveness related to a system variable, because the out-of-court
identification in Brigman’s case was obtained through a showup — an inherently
suggestive procedure.
In a showup, a single suspect is presented to a witness, and the witness is
asked whether they can make an identification. As courts have frequently
51
Id.52
Id.53
Id.54
Id. at 428; see Henderson, 27 A.3d at 920 (“If the evidence is admitted, the court
should provide appropriate, tailored jury instructions . . . .”).
– 15 – 2724
acknowledged, showups are “inherently suggestive.”55 By their very nature, they cannot
be performed using a blind or double-blind format.
Moreover, in contrast to lineups and photographic arrays, where a witness
with a faulty memory might well pick someone other than the suspect, every positive
identification in a showup implicates the suspect.56 As the Alaska Supreme Court noted
in Young, “Showups seemingly provide little protection against witnesses who are
inclined to guess, as witnesses participating in showups tend to base their identifications
on clothing.”57 Research also shows that “an innocent suspect who resembles the actual
perpetrator is more likely to be incorrectly identified in a showup than in a lineup.”58
Despite these problems, showups still play a role in the criminal justice
system because they are often the best way to determine the direction of an investigation
under exigent circumstances. For example, in Brigman’s case, the police needed to learn
whether they had apprehended the intoxicated driver who had just fled the crash site or
whether they should continue their search. Because showups are useful and often
necessary, the out-of-court identifications resulting from showups remain potentially
admissible under the Young test.
But under the Young test, the fact that a showup may have been necessary
under the circumstances does not end the analysis. Instead, a trial court is required to
assess all of the relevant system and estimator variables, with particular attention to how
55
Anderson v. State, 123 P.3d 1110, 1117 (Alaska App. 2005).
56
Young, 374 P.3d at 421.
57
Id.
58
Id.
– 16 – 2724
the showup was conducted and when it occurred.59 Studies have shown that showups
are often most reliable if they are conducted immediately after the crime when the
witness’s memory is fresh.60 But research also shows that the likelihood of a
misidentification at a showup increases significantly in as little as two hours after the
event.61
In addition, studies have shown that the pre-identification instructions the
witness receives are an important influence on the reliability of the witness’s
identification.62 To increase the chances of reliability, a witness should be instructed that
the person they are about to view may or may not be the culprit and that they should not
feel compelled to make any identification.63
In Brigman’s case, the superior court found that the showup occurred
within minutes of the time when the witness, Thomas Jenkins, encountered and
conversed with the driver of the crashed vehicle. The record supports this finding, and
the parties appear to agree that less than thirty minutes passed from the time of the crash
to the time of the showup.
The superior court also found that Officer Childers provided the appropriate
pre-identification instructions to Jenkins. Prior to the identification, Childers instructed
Jenkins that the person in custody might or might not be the driver. These instructions
were recorded and are not in dispute.
59
Id. at 427.
60
Id. at 421.
61
Id.
62
Id. at 418-19.
63
Id.
– 17 – 2724
Based on the immediacy of the showup and the fact that Jenkins received
neutral pre-identification instructions, the superior court found that the showup
identification that occurred in Brigman’s case was “the type the Supreme Court had in
mind when it said [that showups] can be reliable.”
But, as the superior court recognized, finding that the showup was
conducted in an appropriately neutral form is not the end of the analysis under Young.
The superior court still needed to assess the estimator variables to determine whether,
notwithstanding the immediacy of the showup and the result-neutral pre-identification
instructions, there was a “very substantial likelihood of irreparable misidentification.”64
The superior court’s order provides an in-depth analysis of the estimator
variables in Brigman’s case. The court found, for example, that “there is no suggestion
that the witness’s stress level was particularly high[,] because he was not in any danger
and his desire was to help the driver of the vehicle that had just crashed in front of him.”
The court also found that, although the interaction between Jenkins and the driver was
short, their encounter was face-to-face and in an area that was well-lit by a streetlight.
There were no weapons or unusual or distracting objects present, and the driver was not
wearing a hat or other disguise. The court noted that there was no issue of cross-racial
identification bias, as both Jenkins and the driver were white. In addition, Jenkins, a
sixty-one-year-old man, was wearing his eyeglasses and was not under the influence of
alcohol or medication. The court further found that Jenkins had acted responsibly by
first checking on the driver of the vehicle and then calling 911 and providing a relatively
detailed description. The court noted that there were some discrepancies regarding
Jenkins’s description of the driver’s clothing and hair. But the court found that these
64
See id. at 427.
– 18 – 2724
discrepancies were explainable, that they did not undermine the reliability of the
identification, and that these discrepancies could be understood and considered by the
jury.
In sum, after conducting a thorough analysis under Young of how and when
the showup occurred, and after analyzing the applicable estimator variables, the court
concluded that Brigman had failed to show that there was a very substantial likelihood
of irreparable misidentification, and thus the showup identification was sufficiently
reliable to be introduced into evidence.
On appeal, Brigman focuses on the discrepancies between Jenkins’s
description of the driver and what Brigman looked like at the showup. According to
Brigman, these discrepancies were significant enough that the superior court should have
found the identification unreliable.
We disagree. In his initial 911 call, Jenkins described the driver as a man,
likely white, with black hair, gray clothing, and a zipped hoodie. Based on this
description, Officer Fraize stopped Brigman, a white man with black hair and gray/dark
clothing. It is true that Brigman was not wearing a hoodie, and we agree with Brigman
that the absence of a hoodie casts some doubt on the reliability of Jenkins’s
identification, and that this was a proper subject for cross-examination at trial. But this
one discrepancy does not defeat the superior court’s conclusion that Brigman failed to
show a very substantial likelihood of irreparable misidentification, given the other
system and estimator variables at play in this case.
Brigman also asserts that Jenkins misidentified Brigman’s hair. According
to Brigman, Jenkins described the driver as having hair that was longer, curlier, and
wavier than Brigman’s. But the transcript page that Brigman cites does not support this
– 19 – 2724
claim. Instead, it appears that it was the other eyewitness who originally described the
driver as having “shoulder-length” wavy hair.
The record does, however, show that Jenkins himself acknowledged that
his recollection of the driver’s hair differed somewhat from the way Brigman’s hair
looked at the time of the showup. After Jenkins identified Brigman as the driver of the
crashed vehicle, Jenkins noted that the driver’s hair “wasn’t messed up [like Brigman’s]
at the time.” But according to the record, Brigman was sweaty and nervous by the time
of the showup and, as the superior court noted, there was a light rain or mist “which
could have altered the look of a person’s hair.” We therefore find no error in the superior
court’s discounting of this supposed discrepancy.
Ultimately, under Young, it is the defendant who bears the burden of
proving that the system variables and estimator variables applicable to the case give rise
to a very substantial likelihood of misidentification.65 We find no error in the superior
court’s conclusion that Brigman did not meet this burden.
Conclusion
The judgment of the superior court is AFFIRMED.
65
Id.
– 20 – 2724