State Of Washington v. Steven Vandesteeg ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, No. 76222-2-1
Respondent,
V. UNPUBLISHED OPINION
STEVEN NICKOLAS VANDESTEEG,
Appellant. FILED: July 23, 2018
SCHINDLER, J. — A jury found Steven Nickolas Vandesteeg guilty of possessing a
stolen car and attempting to elude a pursuing police vehicle. Vandesteeg seeks -
reversal, arguing the court abused its discretion by denying the motion to suppress an
in-court identification because it was impermissibly suggestive and not reliable.
Because the identification was not so impermissibly suggestive as to give rise to a
substantial likelihood of misidentification, we affirm.
FACTS
On April 2, 2016 at approximately 9:10 a.m., Kent Police Department Officer
Kevin Bateman was driving his police car on 108th Avenue SE. Officer Bateman saw a
white Acura Integra "with no hood and no front plate." The driver was not wearing a
seatbelt. Officer Bateman could see the driver was an unshaven white male.
No. 76222-2-1/2
When the Acura passed Officer Bateman, he saw "a side profile of the driver."
Officer Bateman called dispatch about the license plate. The car "didn't come back
stolen, but the plates didn't match completely with the description that was associated to
them."
Officer Bateman drove his police car behind the Acura and turned on his
emergency lights. The driver of the Acura did not make "any effort to slow down." The
driver "made a hard left through the red turn arrow" down a dead-end street and "started
accelerating pretty rapidly."
Officer Bateman blocked the Acura at the end of the street and got out of the
police car. The driver got out of the Acura and stared "straight at" Officer Bateman with
"that deer in the headlight look." The driver was wearing a light blue T-shirt and
"grungy, dirty blue jeans." Officer Bateman was about "fflifteen, twenty feet" from the
driver. The driver "looked back" at Officer Bateman as he climbed over the fence and
ran away.
[H]e kind of froze for a few seconds. Stared at me. That's when 1 yelled
stop. Police. After a couple seconds he took off running back towards me
a little bit. .. Then he ran around the back of the car and continued
running east towards the fence.
Officer Bateman called for backup. The police did not find the driver.
Officer Bateman described the driver in the police report as "[w]hite male, late
20s/early 30s, shaved with light brown hair, facial hair but not a beard, wearing a light
blue T-shirt and dirty jeans." Officer Bateman states the driver was 5 feet 8 inches to 5
feet 10 inches tall and between 160 and 180 pounds.
Officer Bateman searched the car. After finding "shaved" keys, Officer Bateman
impounded the car to be processed for fingerprints. The Kent Police Department
2
No. 76222-2-1/3
confirmed the car was stolen from the Fred Meyer parking lot in Maple Valley on April 1.
The car belonged to Magot Lewis. Officer Bateman initially closed the case because he
"didn't have any additional evidence or leads."
The King County Regional Automated Fingerprint Identification System (AFIS)
processed the fingerprints obtained from the car. AFIS matched the fingerprints to
Steven Nickolas Vandesteeg. On May 24, Officer Bateman found two photographs of
Vandesteeg in the King County database) Officer Bateman instantly recognized
Vandesteeg as "the guy I was face to face with." Previous booking information listed
Vandesteeg's height as "six feet" and weight as "155 pounds." The Department of
Licensing listed Vandesteeg's weight as 180 pounds.
The State charged Vandesteeg with possession of a stolen vehicle and
attempting to elude a pursuing police vehicle. Vandesteeg pleaded not guilty.
Before trial, Vandesteeg filed a motion to suppress Officer Bateman's
identification of him. Vandesteeg argued the single-photo showup identification was
impermissibly suggestive and not reliable.
Officer Bateman testified at the CrR 3.6 hearing. Officer Bateman stated that he
had worked for the Kent Police Department for 21 years. Officer Bateman testified that
he has "looked at a single photograph to make an identification" before. Officer
Bateman said he has "more often excluded people than included them" after looking at
a single photograph to identify someone. Officer Bateman testified, "[W]hat I do every
day is I look at people. I try to find people. . .. I'm trained to say, especially in a case
like this where I got a really good look at the person, that, yes, that's him." Officer
1 One photograph was listed under the alias "Steven Moltrum."
3
No. 76222-2-1/4
Bateman said that when the driver got out of the Acura, Officer Bateman was "very
specifically looking at him to see who he is and then also to make sure there's nothing
in his hands as well." Officer Bateman testified that the encounter "stood out" because
this "was the only case where I had somebody physically get out and take off and run
from me."
Officer Bateman testified, "The instant! saw the booking photo I was like that's
the guy that I was face to face with." Officer Bateman said he was "100 percent" certain
that Vandesteeg was "the man that [he] had seen on April the 2nd."
The court admitted into evidence the declaration of defense expert Dr. Geoff
Loftus. Dr. Loftus testified that a showup procedure is "intrinsically unreliable." Dr.
Loftus stated that there were "several specific issues" with Officer Bateman's
identification, including the time period between the event and the identification, that
Officer Bateman "carried out the showup procedure on himself," and that Officer
Bateman "already knew of the connection between the offending vehicle and Mr.
Vandesteeg."
Vandesteeg argued the identification was impermissibly suggestive because
Officer Bateman knew that the fingerprints from the car matched Vandesteeg and
Officer Bateman looked at only a single photograph. Vandesteeg asserted the factors
under Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), weighed
against admitting the identification. Vandesteeg argued that Officer Bateman had an
opportunity to see him for only "30 seconds to a minute," his "attention was not that
focused," the description was "extremely generic," he inaccurately estimated
Vandesteeg's height and weight, and the identification occurred "months later."
4
No. 76222-2-1/5
The prosecutor conceded,"There's no question it's suggestive." The prosecutor
argued that based on the totality of the circumstances, the identification was reliable.
The prosecutor asserted Officer Bateman had sufficient opportunity to view the driver
from 15 to 20 feet away as he stood by the Acura and as the driver ran directly toward
him, and Officer Bateman's "degree of attention was extremely high." "[Officer
Bateman] got the gender right. He got the race right. He more or less got the height
right. He more or less got the weight right. He got the scurfiness on the face right."
The prosecutor noted Officer Bateman testified he was "certain" and there was "no
question in his mind" that Vandesteeg was the driver. The prosecutor argued the length
of time between the event and identification "is not dispositive."
The court denied the motion to suppress the identification. The court ruled the
identification was "unnecessarily suggestive" but "even if an identification procedure is
found to be suggestive, suppression is not required unless the suggestiveness results in
a very substantial likelihood of misidentification."
The court addressed the five Biggers factors and ruled that Officer Bateman's
identification was reliable and did not result in a substantial likelihood of
misidentification.
The State called Magot Lewis, Detective Bateman, and AFIS latent fingerprint
examiner Amanda Wilson to testify at trial. Vandesteeg did not testify. Dr. Loftus
testified on behalf of the defense.
The jury found Vandesteeg guilty of possession of a stolen car and attempting to
elude a pursuing police vehicle. The court imposed a 33-month sentence.
5
No. 76222-2-1/6
ANALYSIS
Vandesteeg contends the court violated his right to due process by denying the
motion to suppress Officer Bateman's out-of-court and in-court identification. U.S.
CONST. amend. XIV; WASH. CONST. art I, § 3.
Findings of Fact and Conclusions of Law
Preliminarily, Vandesteeg contends the lack of CrR 3.6 written findings of fact
and conclusions of law requires reversal or remand. Because the oral ruling is clear
and comprehensive, we disagree.
When reviewing the court's denial of a CrR 3.6 suppression motion, we must
determine whether substantial evidence supports the trial court's factual findings and
whether those findings supports its conclusions of law. State v. Ross, 106 Wash. App.
876, 880, 26 P.3d 298(2001). To facilitate review, CrR 3.6(b) requires the court to
enter written findings and conclusions at the conclusion of the suppression hearing. A
court's failure to enter written findings of fact and conclusions of law following a
suppression hearing as required by CrR 3.6 is harmless if the oral opinion and the
record of the hearing "are 'so clear and comprehensive that written findings would be a
mere formality.'" State v. Smith, 76 Wash. App. 9, 16, 882 P.2d 190(1994)(quoting State
v. Smith, 68 Wash. App. 201, 208, 842 P.2d 494 (1992)).
Vandesteeg relies on State v. Head, 136 Wash. 2d 619, 622-24, 964 P.2d 1187
(1998), to argue we must remand for entry of findings. In Head, the trial court did not
enter findings and conclusions following a bench trial and the oral ruling did not
"sufficiently address" each of the eight counts separately. Head, 136 Wash. 2d at 621-23.
6
No. 76222-2-1/7
By contrast, here, the oral ruling clearly and comprehensively addressed each of the
five Biggers factors.
Photographic Identification
We review a trial court's decision to admit identification evidence for abuse of
discretion. State v. Kinard, 109 Wash. App. 428, 432, 36 P.3d 573(2001). We will not
disturb findings that are supported by substantial evidence. Kinard, 109 Wash. App. at
434. Substantial evidence is evidence sufficient to persuade a fair-minded, rational
person of the truth of the finding. State v. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076
(2006). We review conclusions of law on the suppression of evidence de novo. Levy,
156 Wash. 2d at 733. Unchallenged findings of fact are verities on appeal. Levy, 156
Wash. 2d at 733.
Courts engage in a two-part analysis to determine whether the challenged
identification is admissible. State v. Vickers, 148 Wash. 2d 91, 118,59 P.3d 58(2002). To
establish a due process violation, the defendant "bears the burden of showing that the
identification procedure was impermissibly suggestive." Vickers, 148 Wash. 2d at 118. If
the defendant meets the burden of showing the identification procedure is impermissibly
suggestive, the court considers whether the totality of the circumstances indicates that
the identification was reliable. Biggers, 409 U.S. at 199. To determine whether the
identification was reliable, the trial court considers the five factors set out in Biggers: (1)
the opportunity of the witness to view the criminal at the time of the crime,(2)the
witness's degree of attention,(3) the accuracy of the witness's prior description of the
criminal,(4)the level of certainty demonstrated at the identification, and (5)the time
between the crime and the identification. Biggers, 409 U.S. at 199-200; Manson v.
7
No. 76222-2-1/8
Brathwaite, 432 U.S. 98, 114-16, 975. Ct. 2243,53 L. Ed. 2d 140 (1977). The
"linchpin" of eyewitness identification is "reliability." Brathwaite, 432 U.S. at 114. "An
out-of-court photographic identification meets due process requirements if it is not so
impermissibly suggestive as to give rise to a substantial likelihood of irreparable
misidentification." State v. Linares, 98 Wash. App. 397, 401, 989 P.2d 591 (1999).
Vandesteeg contends the identification was impermissibly suggestive because
Officer Bateman knew that the fingerprints on the car matched Vandesteeg and looked
at a single photo. The State does not contest the court's finding that the single-photo
identification was impermissibly suggestive. See State v. Maupin,63 Wn. App. 887,
896, 822 P.2d 355(1992)("The presentation of a single photograph is, as a matter of
law, impermissibly suggestive.").
Vandesteeg challenges the court's analysis of the Biggers factors and the
conclusion that Officer Bateman's identification was reliable and not so impermissibly
suggestive as to give rise to a substantial likelihood of irreparable misidentification.
1. Opportunity to View
Vandesteeg challenges the finding that Officer Bateman had an adequate
opportunity to view the driver because the encounter was "fleeting and brief."
But in Brathwaite, an undercover police officer identified the defendant from a
single photo. Brathwaite, 432 U.S. at 99, 101. The officer testified that he had
purchased drugs from the defendant in the hallway outside an apartment. Brathwaite,
432 U.S. at 100. The officer stood at the apartment door for two to three minutes.
Brathwaite, 432 U.S. at 114. The defendant opened the door twice to talk with the
officer, take payment, and hand over the drugs. Brathwaite, 432 U.S. at 114. The
8
No. 76222-2-1/9
officer had moments to look directly at the seller. Brathwaite, 432 U.S. at 114. The
Supreme Court concluded that the officer's opportunity to view was sufficient.
Brathwaite, 432 U.S. at 114, 116.
Substantial evidence supports the trial court finding that Officer Bateman had
"substantial and adequate opportunity to observe the driver of the stolen car." The
record shows Officer Bateman spent "30 seconds to a minute" to look at the driver.
Officer Bateman saw the driver "through his rearview mirror initially," "in profile as the
Acura passed him," and when the driver was "facing straight at [Officer Bateman] with
no obstructions at all" from 15 to 20 feet away. The driver ran toward Officer Bateman
and "got within 10 to 15 feet of him before turning away." The driver also "stopped
when he got to the fence and looked back at Officer Bateman before he then jumped
the fence and essentially disappeared."
2. Degree of Attention
Substantial evidence supports the finding that Officer Bateman was "observing
the other driver carefully" and that Officer Bateman was "paying close attention because
he didn't have any idea why the other driver had refused to stop and tried to escape."
Officer Bateman testified:
I don't know why he's running at this point. The car didn't come back
stolen, but the plates didn't match completely with the description that was
associated to them, so... I suspect a potentially stolen car, but I don't
know if he's armed. I don't know if he's got warrants, if he's wanted for
something.
Officer Bateman described his "level of focus" as "very specifically looking at him to see
who he is."
9
No. 76222-2-1/10
Vandesteeg argues Officer Bateman was also looking "to make sure there's
nothing in his hands." But as in Brathwaite, Officer Bateman was a trained police officer
on duty and not "a casual or passing observer." Brathwaite, 432 U.S. at 115. Although
Officer Bateman's attention was not exclusively on the driver's face for the entire
encounter, the record supports the court's finding that Officer Bateman was paying
close attention.
3. Accuracy of Prior Description
Vandesteeg contends that Officer Bateman's description was not accurate
because Vandesteeg is "noticeably taller and thinner than the driver of the Acura."
Substantial evidence supports the finding that Officer Bateman described Vandesteeg
accurately in his report.
The court found Officer Bateman described the driver as "a white male,
unshaven, but not actually having a beard," and "maybe mid 20s." Officer Bateman's
unrebutted testimony establishes the driver was a white male, late 20s to early 30s, with
short brown hair. Officer Bateman testified that the driver was unshaven but did not
have a beard and was wearing a blue T-shirt and "dirty jeans."
Vandesteeg contends that Officer Bateman's identification was unreliable
because Vandesteeg's height and weight are different from the description. But the
record shows Vandesteeg's weight was not firmly established. A May 24 police booking
listed Vandesteeg's weight as 155 pounds but the Department of Licensing information
listed his weight as 180 pounds. Officer Bateman described the driver as weighing
between 160 and 180 pounds. The court found that Office Bateman was only "off a
10
No. 76222-2-1/11
couple of inches or so on the height." The record shows Officer Bateman described the
driver's height as "five eight to five ten" and Vandesteeg is six feet tall.
Substantial evidence supports the court's finding that Officer Bateman accurately
described Vandesteeg's "gender, race, and general build."
4. Certainty of Identification
Substantial evidence supports the court's finding that Officer Bateman was
certain about the identification. Officer Bateman stated that he knew Vandesteeg was
the driver "Mile instant I saw the booking photo." Officer Bateman testified he was "100
percent" certain that Vandesteeg was the driver.
5. Length of Time
Vandesteeg contends the identification was unreliable because two months
passed between the encounter and the identification.
The court found that Officer Bateman made the identification "seven or eight
weeks after the time in question." The court concluded this was not an unreasonable
length of time. We agree. In State v. Cook, 31 Wash. App. 165, 639 P.2d 863(1982), we
held that two months is not "an impermissibly long period" between an event and the
identification. Cook, 31 Wash. App. at 173 (citing the seven-month delay between event
and identification in Biggers).
In Brathwaite, the Court also weighed the reliability factors against the "corrupting
effect of the suggestive identification itself." Brathwaite, 432 U.S. at 114-16. The Court
concluded there was no coercive pressure on the witness to make a positive
identification. Brathwaite, 432 U.S. at 116. The officer had the opportunity to view the
11
No. 76222-2-1/12
photo alone and at his leisure. Brathwaite, 432 U.S. at 116. The identification was
made "in circumstances allowing care and reflection." Brathwaite, 432 U.S. at 116.
Here, as in Brathwaite, the trial court weighed the "corrupting effect of the
suggestive identification procedure against the factors indicative of reliability." The court
noted a "better practice would have been for the detective assigned to the case to
prepare a photo montage for Officer Bateman to review without giving him any
additional information." But the court found that Officer Bateman "was as concerned
about ruling [Vandesteeg] out as a suspect as in making an identification. The case had
been closed," and "there was no urgency" or motivation to identify a particular person.
Substantial evidence supports the court's findings and the conclusion that after
weighing all the factors, Officer Bateman's identification was sufficiently reliable and
there was no substantial likelihood of misidentification.
We affirm.
WE CONCUR:
N&LQr) rei C,
rn
-11
*-or
tnr710
nr.
2 4eLl
%C.›. C)U1
12