State of Utah v. Gordy

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Darrill Gordy,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000661-CA

F I L E D
February 14, 2002 2002 UT App 37 -----

Third District, Salt Lake Department
The Honorable Dennis M. Fuchs

Attorneys:
Kent R. Hart, John D. O'Connell, and Lisa J. Remal, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Davis.

BENCH, Judge:

To determine whether the victim's eyewitness identification of Defendant was constitutionally reliable under Article I, Section 7 of the Utah Constitution, we must consider the following factors: "(1) [T]he opportunity of the witness to view the actor during the event; (2) the witness's degree of attention to the actor at the time of the event; (3) the witness's capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness's identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly. This last area includes such factors as whether the event was an ordinary one in the mind of the observer during the time it was observed, and whether the race of the actor was the same as the observer's." State v. Ramirez, 817 P.2d 774, 781 (Utah 1991) (quoting State v. Long, 721 P.2d 483, 493 (Utah 1986)) (alteration in original).

As to the first factor, the victim testified at Defendant's first trial that she clearly saw her assailant and paid attention to his unmasked face while he was in the victim's living room. The victim particularly noticed her assailant's "mean" eyes, unique facial hair, height, and general build. Setting aside the other possible opportunities for the victim to view her assailant, we conclude that the victim's first view of the assailant was sufficient. Although brief in duration, the victim's viewing opportunity was much better than the eyewitness's view in Ramirez, which the supreme court found to be sufficient. See id. at 784.

Looking at the second factor, we agree with Defendant that the evidence shows the victim was focused more on protection and escape than on Defendant for much of the encounter. However, the victim was forced to pay at least some attention to Defendant because he was yelling at her, pushing her, and chasing her throughout the encounter. More importantly, the victim testified that during the critical first moments of the encounter she was "paying more attention to [the assailant's] face than anything."

Turning to the third factor, the victim's capacity to observe, Defendant points to the victim's level of fear and her visual impairment. Although the record indicates that the victim was very upset at the end of her ordeal, the victim's testimony indicates that she was quite calm just prior to the initial encounter. She went to check on the alarm after thinking to herself, "Oh, [my daughter] set [the alarm] off again, I wonder how?" While the victim would have been frightened upon discovering a stranger in her home, her testimony does not support a determination that fear unduly interfered with her capacity to observe the assailant during those critical first moments before the attack. Also relevant is the trial court's undisputed finding that the victim's "physical and mental acuity was excellent." As to the victim's farsightedness, the record does not support Defendant's assertion that the victim's range of visual impairment extends ten to twelve feet. The victim merely answered "yes" when asked if she could clearly see the prosecutor from a distance of ten to twelve feet away. On cross-examination, the victim agreed that she has difficulty seeing things "close up," but gave no specific range other than to cite examples like reading or seeing price tags on store shelves. In any event, Defendant admits that the victim's visual impairment did not affect her initial view of the assailant. In fact, the victim testified that she clearly saw the assailant and his facial features at that time. Furthermore, when she identified Defendant at the show-up identification, the evidence shows that the victim was able to see the Defendant. She requested that the suspect be turned around so she could see his face, and "[a]s soon as I saw his face I knew who he was."

With respect to the fourth factor, Defendant points out that he, like the defendant in Ramirez, was identified at a show-up identification. See id. Furthermore, a police officer told the victim that they had located a "possible suspect." This comment, while "not . . . unnecessarily suggestive" by itself, must be considered along with the "blatant suggestiveness of the show[-]up [identification]." Id. On the other hand, the victim identified Defendant only fifteen minutes after the incident, which is a relevant consideration that favors admission of the identification. See id. at 783. Without citing to the record, Defendant also asserts that the victim gave inconsistent descriptions of the assailant's shirt. Our review of the preliminary hearing and first-trial transcripts reveals that the victim consistently described Defendant's clothing as "dark." Thus, this argument is without evidentiary support.

Considering the fifth factor, this case involves a cross-racial identification, which is less accurate than a same-race identification. See Long, 721 P.2d at 489. Also relevant, however, was the unique and memorable nature of the incident. See Ramirez, 817 P.2d at 781.

Having considered all five factors, we conclude that the eyewitness identification was constitutionally reliable. The suggestiveness of the show-up identification and the inherent problems with a cross-racial identification are outweighed by the victim's excellent mental acuity, her clear view of the assailant, her focus on the assailant's facial features, and the short time span between the encounter and the show-up identification. Thus, we conclude that the trial court properly admitted the victim's eyewitness identification into evidence.

Accordingly, we affirm.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge