M.S. v. State (In re M.S.)

M.S. v. State (In re M.S.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of M.S., a person under eighteen years of age.

______________________________

M.S.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030982-CA
 

F I L E D
(October 15, 2004)
 

2004 UT App 358

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Pamela L. Vickery and Sam N. Pappas, Salt Lake City, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Bench, Orme, and Thorne.

THORNE, Judge:

M.S. appeals from the juvenile court's adjudication of theft, a violation of Utah Code section 76-6-404 (2003). We affirm.

M.S. first argues that the trial court erred by admitting the testimony of the sole eyewitness.

In reviewing a trial court's decision to admit an eyewitness identification, "we defer to the trial court's fact finding role by viewing the facts in the light most favorable to the trial court's decision to

admit. . . ." We review for correctness whether the "facts are sufficient to demonstrate reliability," since "this is a question of law."

State v. Hollen, 2002 UT 35,¶28, 44 P.3d 794 (citations omitted).

The reliability of an eyewitness identification depends on the following five 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.

Id. at ¶26 (alteration in original) (quoting State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)).

The eyewitness in this case testified that he saw a young man, whom he later identified as M.S., walking by the eyewitness's car while attempting to conceal a purse. The behavior piqued the witness's curiosity and he continued to observe the young man as he approached a dumpster, examined the contents of the purse, and discarded a number of items. As the youth emptied the purse, the eyewitness engaged him in a brief conversation. When the youth left the dumpster, the witness examined the discarded items and determined that the purse more than likely belonged to someone other than the youth. Consequently, he again approached the youth to challenge his right to possess the purse. At this point, the youth threw the purse and left the scene. The entire encounter took five to seven minutes, during which the witness had an opportunity to see the youth's face for between one and two minutes from a distance of between fifteen and twenty feet. When he contacted the police, the witness described the youth as a teenager--about fifteen or sixteen years of age--very thin, with brown hair, and wearing a red, hooded sweat-shirt. No more than two hours later, police officers escorted the witness to M.S.'s home, where M.S. stood in the driveway flanked by his grandfather and two uniformed police officers. There, the witness identified M.S. as the youth who had been carrying the purse.

After conducting a short Ramirez hearing, the juvenile court admitted the eyewitness testimony. It found that the encounter occurred "during the light of day," and that the encounter lasted longer than five minutes. It further found that the eyewitness was not subject to any "outside influence" that might have had an impact on his attention, and that the eyewitness's later identification was in no way influenced by the officers involved in the investigation. "Considering the facts in the light most favorable to the trial court's decision . . . and giving due deference to the trial judge's ability to appraise demeanor evidence, we conclude that the identification[ was] constitutionally reliable and therefore admissible." Hollen, 2002 UT 35 at ¶64 (quotations and citations omitted).

M.S. also asserts that the trial court improperly considered the eyewitness's credibility in deciding to admit his testimony, and that examining credibility at that time had an impermissible effect on the trial court's subsequent adjudication. However, M.S. has failed to present any authority or analysis on this specific issue. "While failure to cite to pertinent authority may not always render an issue inadequately briefed, it does so when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). M.S.'s case was adjudicated in the juvenile court, where, as usual, the juvenile court judge acted as both the gatekeeper of the evidence and the finder of fact. M.S.'s argument suggests a broad and direct attack on the juvenile court adjudication process. However, his argument is devoid of any analysis of the particularities of the juvenile court system, or why eyewitness testimony should be treated any differently than other evidence admitted into juvenile court. Consequently, M.S. has "shift[ed] the burden of research and argument" to this court, id., and we decline to consider this issue.

Finally, M.S. argues that the eyewitness identification was inadmissible because the show-up was blatantly suggestive. However, assuming that M.S.'s assertion is true, this alone is insufficient to require the suppression of the eyewitness identification. See State v. Ramirez, 817 P.2d 774, 784 (Utah 1991) (concluding that although the show-up was blatantly suggestive, the witness's testimony was "legally [s]ufficient when considered in light of the other circumstances to warrant a preliminary finding of reliability and, therefore, admissibility"); State v. Perry, 899 P.2d 1232, 1238 (Utah Ct. App. 1995) (stating that in the face of an "unduly suggestive" show-up, "[t]he ultimate question remains to be determined, namely, whether under the totality of the circumstances the identification was reliable"). Responding to M.S.'s concerns regarding the suggestiveness of the show-up, the juvenile court, as required, examined the totality of the circumstances. The court then admitted the testimony. Contrasting the instant case to Ramirez, we conclude that the trial court did not err.

In Ramirez, the encounter took place at night; the eyewitness was threatened with both a pipe and a handgun; two assailants were involved; the encounter took less than one minute; the eyewitness never clearly saw the assailant's faces; and at the show-up, the defendant was surrounded by police cars, all focusing their lights on the defendant, and he was handcuffed to a chain-link fence. See Ramirez, 817 P.2d at 776-77. Here, however, the encounter occurred during the light of day; the defendant was alone, and apparently unarmed; the encounter lasted more than five minutes; the eyewitness saw the defendant's face; and the show-up was much less suggestive. Therefore, because the totality of the circumstances suggest that the eyewitness in this case had a far better opportunity to observe the defendant than the eyewitness in Ramirez, we have no difficulty in concluding that the trial court did not err in admitting the eyewitness's testimony.

Accordingly, we affirm the juvenile court's adjudication of theft in M.S.'s case.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge