IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ,
DANIEL RYAN BIRD,
FILED: June 6, 2011
Appelwick, J. — Bird appeals his convictions for first degree robbery, first
degree assault, and second degree unlawful possession of a firearm. He fails to carry
his burden to establish that an out-of-court photomontage identification was so
impermissibly suggestive as to give rise to a substantial likelihood of irreparable
misidentification and a violation of due process. The defendant’s convictions for first
degree robbery and first degree assault did not merge, and the trial did not err in
entering convictions on both counts. We affirm.
Jose Zamudio was walking home on August 22, 2008 pushing a new bicycle that
belonged to his 11-year-old nephew. A man approached him and asked for money.
Zamudio responded that he had no money, and the man said, “[T]hen I’m taking your
bike.” The man grabbed the handlebars and tried to pull the bike away, but Zamudio
refused to let go. The man then took a gun from his pants pocket, slid the rack back,
put the barrel directly against Zamudio’s chest, and pulled the trigger. The gun clicked,
but did not fire. Zamudio noticed that the man was looking at the ground and bending
down to reach for something. Zamudio saw a bullet on the ground and kicked it out of
reach. The man then hit Zamudio twice on the chest with the gun. Zamudio lost his
grip on the bike and the man took it rode away.
Zamudio reported the incident to the police.
He described the clothes and
physical characteristics of the person who robbed him.
Zamudio and the police
reviewed surveillance video from a convenience store in the immediate vicinity of the
robbery. One segment of the video showed four men standing outside the store around
the time of the robbery. Zamudio identified one of the men as the person who tried to
The police discovered the identity of the other men in the surveillance video who
were standing with the suspect and interviewed them.
From those interviews, the
police learned that the suspect’s name was Daniel Bird. Two of the men also said that
Bird had displayed a pistol while standing outside the store.
Six days after the incident, the police created a photo montage with a total of six
photos, including Bird’s. Zamudio identified Bird in the photo montage.
Shortly thereafter, the police arrested Bird a few blocks from where the robbery
A pink backpack found nearby contained a pistol that matched the
description of the gun Zamudio described. Two witnesses testified that they had seen
Bird carrying the pink backpack on the day of his arrest, including a woman who said
that Bird approached her in a grocery store, then pulled a gun out of a pink backpack
and asked her if she wanted to buy it.
The State charged Bird with first degree robbery and first degree assault, both
with firearm enhancements, and also with second degree unlawful possession of a
Bird filed a motion to suppress the evidence of the photomontage
identification. After a pretrial hearing, the trial court denied the motion. Thereafter, a
jury convicted Bird as charged.
The trial court imposed standard range concurrent sentences. But, ruling that
the first degree robbery count merged with the first degree assault count, imposed only
one consecutive firearm enhancement. Bird appeals.
I. Photomontage Identification
A trial court's decision to admit evidence of an out-of-court identification is within
the sound discretion of the court and subject to an abuse of discretion standard of
review. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001). We therefore
apply a deferential standard in determining whether tenable grounds or reasons
support the trial court's decision to admit the evidence. Kinard, 109 Wn. App. at 432.
Evidence of an out-of-court identification is admissible if it is not so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. State v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109 (1999). The
court must conduct a two-step inquiry to determine whether an out-of-court
identification is impermissibly suggestive. Kinard, 109 Wn. App. at 433. First, the
defendant must show that the identification procedure was suggestive.
procedure is suggestive if it directs undue attention to a particular person. Eacret, 94
Wn. App. at 283.
Generally, courts have found out-of-court identifications to be
impermissibly suggestive when the defendant is the sole possible choice given the
witness's earlier description. State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343
(2002). If the defendant fails to meet the initial burden of showing the out-of-court
identification was impermissibly suggestive, the inquiry ends. Id.
If the defendant demonstrates the identification procedure is impermissibly
suggestive, the court must proceed to the second part of the inquiry and determine
whether, under the totality of the circumstances, the identification contained sufficient
indicia of reliability despite the suggestiveness. Id.; State v. Vickers, 148 Wn.2d 91,
118, 59 P.3d 58 (2002). In considering whether an identification contains sufficient
indicia of reliability, a court must consider the following factors:
“(1) the opportunity of the witness to view the criminal at the time; (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
confrontation; and (5) the time between the crime and the confrontation.”
Kinard, 109 Wn. App. at 434 (quoting State v. Barker, 103 Wn. App. 893, 905, 14 P.3d
Bird contends the photo montage in this case was impermissibly suggestive
because Zamudio described the suspect as having long hair and only his photo was
consistent with that description. Bird further contends that the victim’s identification
was not otherwise reliable and asks this court to reverse all of his convictions on this
basis. We disagree that the photomontage identification was impermissibly suggestive.
Following the evidentiary hearing, the trial court found as follows:
Det[ective] Keller created a computer generated montage with the
defendant and five others with similar physical characteristics. The six
photographs in the montage looked similar in appearance to each other
and their facial features matched that of the alleged assailant from the
store video. All of those in the photographs had long hair. The
defendant’s hair, if longer, was only marginally longer. Within a week of
the robbery, the detective presented the montage to the victim and
indicated a sheet that read, “because an officer is showing you a group of
photographs, this should not influence your judgment in any way; the
person who committed the crime may or may not be in this group of
photographs; it is just as important to eliminate innocent persons as it is to
identify those persons responsible; you are in no way obligated to identify
anyone; study each photograph carefully before making any comments.
Consider that the photographs could be old or new, that hair styles
change and that persons can alter their appearance by growing or
shaving facial hair.” The detective did not suggest the identity of the
defendant in any way through his montage presentation. The victim
looked at the montage and immediately pointed to the defendant’s
photograph, saying this “looks like him, but the hair is different.”
The trial court additionally concluded:
The photographic montage presented to the victim, Jose Zamudio,
was not suggestive in any way. It was neither suggestive in the manner
presented by the detective nor the photographic layout presented to the
victim. Even if it had been suggestive, like in the form [of] a show-up
identification, the reliability of the identification would offset any
suggestibility in this case. There is no risk of misidentification in this
The court’s findings are supported by the record. The photomontage includes
six individuals that appear to be of similar age and have similar facial features. All of
the individuals in the montage have long hair. Although Bird’s hair is somewhat longer
than the others’, the hairstyle is not as described by Zamudio.
statements confirm that he identified Bird in spite of the fact that his hair looked
“different,” not because the hairstyle was consistent with his previous description.
Because Bird’s photograph was not the only possible choice dictated by the victim’s
earlier description, we find no error in the trial court's ruling. See Ramires, 109 Wn.
App. at 761.
We conclude that the photomontage used in this case was not
The trial court further concluded that even if the photomontage was
impermissibly suggestive, the victim’s identification was nevertheless reliable.
because the trial court did not find that the photomontage was impermissibly
suggestive, and we agree with that finding, the court’s relevant inquiry ended at that
point. The court was not required to address the additional factors and we decline to
address Bird’s arguments that the victim’s out-of-court identification was not otherwise
In sum, the trial court’s decision to admit evidence of the photomontage
identification was based on tenable grounds.
II. Double Jeopardy
Bird contends that the trial court erred by entering convictions for both robbery
and assault, because the convictions merged. Bird claims that imposition of multiple
punishments for both first degree robbery and first degree assault constitutes a double
Although the State may bring multiple charges arising out of the same criminal
conduct, courts may not enter multiple convictions for the same criminal offense without
violating double jeopardy.
State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753
The merger doctrine is a rule of statutory construction used to determine
whether the legislature intended to authorize multiple punishments for a single act.
State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983); Freeman, 153 Wn.2d at
In Freeman, the Supreme Court determined that convictions for first degree
robbery and first degree assault do not merge, reasoning that “the legislature
specifically did not intend that first degree assault merge into first degree robbery”
because of “the hard fact that the sentence for the putatively lesser crime of assault is
significantly greater than the sentence for the putatively greater crime of robbery.”
Freeman 153 Wn.2d at 778; see also State v. Kier, 164 Wn.2d 798, 807, 194 P.3d 212
(2008). This conclusion is also compelling here given the discrepancy in the standard
ranges for Bird’s convictions. The lowest sentence within Bird’s standard range for first
degree assault was more than nine years longer than the bottom of his standard range
for first degree robbery.
Bird offers no reason, let alone any compelling reason, as to why the Supreme
Court’s analysis in Freeman does not control here. Instead, he relies solely on the trial
court’s reference to “merger” in declining to impose the firearm enhancement on the
assault conviction.1 But, the issue of double jeopardy presents a question of law that
we review de novo. See Freeman, 153 Wn.2d at 770. As such, even assuming the
trial court explicitly ruled that the convictions merged, this conclusion does not bind our
Because the legislature intended separate punishments for first degree
robbery and first degree assault, we conclude the trial court did not err in entering
convictions on both counts.
The State hypothesizes that although the court stated that the convictions merged, it
actually meant that the convictions encompassed the same criminal conduct. This
theory appears to be consistent with the calculation of Bird’s offender score. The State
also asserts that the court erred in imposing only one firearm enhancement, but does
not cross appeal and explicitly declines to seek remand on this basis.
III. Statement of Additional Grounds
Bird has filed a statement of additional grounds for review. Although by no
means clear, it appears that Bird argues, as he did below, that he was misidentified as
His argument is premised on the fact that the victim described the
attacker as having had tattoos on both forearms. In fact, Bird has no tattoos on either
forearm and two tattoos on only one of his upper arms.
Essentially, Bird is challenging the sufficiency of the evidence. In reviewing
such a claim, we ask whether, after viewing the evidence in a light most favorable to
the State, any rational trier of fact could have found the essential elements of the
charged crimes beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22,
616 P.2d 628 (1980). Credibility determinations are for the trier of fact and are not
subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). And, we
defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and
the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824
P.2d 533 (1992). Here, viewing the evidence in the light most favorable to the State,
ample evidence supports Bird’s convictions and we must defer to the jury’s assessment
of the persuasiveness of Zamudio’s identification of Bird.
Bird also refers to the fact that no members of the jury were from his
“environment or race.” He does not, however, allege that any members of his race
were unlawfully excluded from the jury.
We affirm the judgment and sentence.