Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Following a jury trial, Frank Moses Tegoseak was convicted of felony driving under the influence and driving with a suspended license. Both the grand jury that indicted Tegoseak and the trial jury that convicted him heard the testimony of Robert Maestas, a private citizen who observed a Ford Bronco being driven in an obviously impaired manner, and who later identified Tegoseak from a photographic lineup as having driven the Bronco.
In pre-trial motions, Tegoseak argued that the photographic lineup was conducted in an unduly suggestive manner and that the superior court should therefore suppress Maestas's identification of Tegoseak as the driver. The superior court, employing the test set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), concluded that Maestas's identification of Tegoseak was reliable despite the arguable flaws in the way the photo lineup was conducted. The court therefore denied Tegoseak's motions and allowed evidence of the identification to be admitted at Tegoseak's trial.
We agree with Tegoseak that there are troublesome aspects to the photographic lineup procedure in this case. In addition, we are aware that scientific research conducted during the past thirty years has cast doubt on the analysis set forth in Manson v. Brathwaite -raising questions as to whether that analysis is a valid method for ascertaining whether a photographic lineup has yielded a reliable identification. Nevertheless, we conclude that any potential suggestiveness in the photo lineup in Tegoseak's case was harmless beyond a reasonable doubt, and we therefore affirm Tegoseak's convictions.
On June 19, 2005, Robert and Michelle
Maestas  were driving around the Anchorage area, looking for a house to purchase. They observed a Ford Bronco that was traveling slower than normal. While they watched, the Bronco swerved and repeatedly changed lanes without apparent cause.
The Maestases could see three occupants in the vehicle: two males in the front seat, and another person in the back seat. Using her cell phone, Michelle Maestas called the Anchorage Police dispatcher to report this vehicle because she and her husband thought that the driver was drunk.
After making this call to the police, the Maestases temporarily lost sight of the Bronco, but they came upon it again a few moments later. It was still being driven in an erratic manner. The Maestases then decided to follow the car. Michelle Maestas called the Anchorage police once more, and this time she remained on the line to assist officers in locating the Bronco as it continued to travel through Anchorage.
The Maestases followed the Bronco to the parking lot of Bell's Nursery on DeArmoun Road, where the Bronco stopped. Robert Maestas parked the couple's car near the nursery parking lot in order to keep an eye on the Bronco while they waited for the police to arrive.
While the Bronco was parked in the Bell's Nursery parking lot, Mr. and Mrs. Maestas saw the driver and the front-seat passenger emerge from the Bronco and swap places. While these two men were outside the vehicle, Robert Maestas was able to observe them.
Maestas described both males as having dark or black hair. He described the man who was originally driving the Bronco (and who switched to the passenger seat in the nursery parking lot) as having a " slender build" and " wearing a black shirt" . Maestas described the other man (that is, the man who was originally in the passenger seat of the Bronco, and who began driving the vehicle after the switch in the nursery parking lot) as " a heavier set gentleman" who was wearing a " white ... T-shirt" .
After the two men switched places in the Bronco, the Bronco left the nursery parking lot and headed east on DeArmoun Road. Just after the Bronco started up DeArmoun, Anchorage Police Officer Gerald Asselin arrived and conducted a traffic stop of the vehicle.
When Officer Asselin stopped the Bronco, he found that there were two men and one woman inside the vehicle. The man driving the vehicle was wearing a white T-shirt, and the male passenger was wearing a black shirt. The driver was later identified as Edgar Henry, while the passenger was identified as Tegoseak.
Because his dispatcher had informed him that the driver and passenger had just switched places, Officer Asselin questioned both men about who had been driving the Bronco Before the vehicle stopped at Bell's Nursery. Based on the men's responses (both verbal and non-verbal), Asselin concluded that Tegoseak had been driving the vehicle prior to the stop at Bell's. In particular, as Asselin later testified, Edgar Henry told the police that he had taken over driving the Bronco after the stop at Bell's Nursery because Tegoseak had been driving so poorly that he thought Tegoseak was going to kill them.
Officer Asselin conducted field sobriety tests of both Henry and Tegoseak. Based on the results of these tests, the officer concluded that he had probable cause to arrest both men. A subsequent breath test showed that Tegoseak had a blood alcohol content of .227 percent (in other words, just under three times the legal limit).
One week later, on June 26th, Officer Asselin contacted Robert and Michelle Maestas and asked them to view a photographic lineup to see if they could identify the two men in the Bronco. This photo lineup was comprised of two separate arrays of six photographs
each. The two arrays were composed so that each of them contained a photograph of one of the men in the Bronco. (The first array contained a photograph of Edgar Henry in position number 5; the second array contained a photograph of Frank Tegoseak in position number 5.)
Asselin showed the photo arrays to Mr. and Mrs. Maestas separately. He told them that he would show them two photo arrays, and he asked them to let him know if they " recognize[d] any of those individuals as being involved." When Asselin showed the first array to Mr. and Mrs. Maestas, he reminded them that, if they did not recognize anyone from the first array of six photographs, he had a second set of photographs to show them.
After Michelle Maestas examined the two arrays of photographs, she picked one person from among the twelve photographs as having been in the Bronco-but that person was neither Henry nor Tegoseak.
After Michelle Maestas failed to identify either Henry or Tegoseak, Officer Asselin showed the photographs to Robert Maestas.
When Robert Maestas was shown the first array of six photographs, he selected three people from this array as the possible occupants of the Bronco. Maestas told Asselin, " [I]t could have been [number] 1 or 3 that was driving [the Bronco originally], and [number] 5 that was in the passenger seat.... I think [that], between 1 and 3, those two [photographs] kind of look like the driver that we originally pulled up next to."
The three photographs that Maestas selected were of Edgar Henry and two " fillers" -that is, two people whose photographs were included, not because the police suspected that they were connected to this incident, but rather to fill out the six-photograph array.
At this point-that is, after Maestas had apparently identified both the original driver and the original passenger from among the photographs in the first array-Asselin said to Maestas, " Let me try to at least show you [the second array of photographs]; then you can see the entire compilation of photos. So far, you've said [that] 1 and 3 [in the first array] could be the driver." Asselin then showed Maestas the second array of six photographs.
When Maestas looked at the second array of photos, he told Asselin that photograph number 5 in this second array could also potentially be the initial driver of the Bronco (that is, the man who was driving Before the driver and passenger switched places in the nursery parking lot). Maestas told Asselin that the man " originally driving the car" was " either [number] 5 in [the second array] or [number] 1 in [the first array]." (As we explained above, Tegoseak's picture was number 5 in the second photo array.)
Asselin asked Maestas to memorialize his identifications on two different " Photographic Lineup" forms. These forms (one for each of the two arrays) apparently had boxes on them that corresponded to the photographs in the arrays. Asselin asked Maestas to place a check mark on the boxes that corresponded to the photographs he had selected.
On the first of these forms ( i.e., the form that corresponded to the first photo array), Maestas stated that he identified photograph number 5 in the first array as the man who began driving the Bronco after the car stopped at the nursery. (As explained above, this photograph was of Edgar Henry.)
Asselin then handed Maestas the second form ( i.e., the form corresponding to the second photo array). Although Maestas had told Asselin that he was uncertain whether the original driver of the Bronco was photograph number 1 from the first array or photograph number 5 from the second array, Asselin directed Maestas to put a check mark in only one box-the box corresponding to photograph number 5 from the second array.
Asselin invited Maestas to add a handwritten notation explaining his uncertainty about the identification. Maestas wrote on the form, " When looking at the photos, both [photograph] # 5 on [the second array] and [photograph] # 1 on [the first array] look similar to the original driver that we ... first [saw]."
However, Officer Asselin added his own separate notation to this form. In the officer's notation, he indicated that Maestas had
made an identification from the photographs, and that the person Maestas had identified was Frank Tegoseak (who, as we explained above, was photograph number 5 in the second array). Maestas signed this form.
This same ambiguity concerning the nature or precision of Maestas's identification is reflected in the testimony given by Asselin and Maestas at the evidentiary hearing.
At the hearing, Asselin testified that he did not remember the exact exchange between himself and Maestas, " but it was clear to [him], based upon the [conversation], that [Maestas] identified [photograph] number 5 [in the second array] as being ... the person who was originally driving the vehicle." Asselin conceded that, while he was showing the photographs to Maestas, " there was some conversation ... where [Maestas] would say, ‘ Well, [photograph] number 1 [in the first array] looks very similar’, but [Maestas] came back to it being [photograph] number 5 [in the second array]."
When Maestas testified at the evidentiary hearing, he acknowledged that he was hesitant to positively identify either photograph 1 from the first array or photograph 5 from the second array-" because the two photos look similar, ... and [because it was] a week [after the incident]." When Maestas was asked whether he had made a " positive identification", he responded, " I wouldn't say it was 100 percent positive; no."
After hearing this testimony, and after listening to Officer Asselin's tape recording of the photo lineup procedure, Superior Court Judge Michael L. Wolverton concluded that the photo lineup procedure was not unduly suggestive.
In particular, Judge Wolverton found that the " filler" photographs were well-selected (in the sense that the people depicted in these filler photographs were visually similar to the two suspects). The judge suggested that this fact (the good selection of fillers) was potentially the explanation for Robert and Michelle Maestas's difficulty in selecting Henry and Tegoseak from among the photographs.
Judge Wolverton also concluded that there was nothing wrong in Officer Asselin's act of drawing Robert Maestas's attention to the second array after Maestas had already declared that the first array contained photographs of both suspects. The judge found that Asselin was not trying to suggest that Maestas had chosen prematurely, or to suggest that the second array contained a photograph of at least one of the suspects. Rather, Judge Wolverton found that Asselin was simply " trying to explain" the procedure ( i.e., the need to examine both arrays) and to request that Maestas withhold his final judgement until he had seen all twelve of the photographs.
Judge Wolverton also concluded that, given the circumstances of the case, there was essentially no possibility of a misidentification. The judge remarked that " this might [have been] a different situation if [the occupants of the Bronco] had not been followed and [immediately arrested]-almost like a hand-off to the police-[but] we know who was in the vehicle [when] it was stopped, [and the photo lineup] was [merely] a determination as to ... who was driving when" -a determination that was made " easier ... because one [man] was wearing a white shirt and [the other] was wearing a black shirt."
Tegoseak's claim that his indictment is flawed because the prosecutor did not inform the grand jury that Michelle Maestas failed to identify Tegoseak as one of the men in the Bronco, and that Robert Maestas's identification of Tegoseak was less than certain
Under Alaska law, a prosecutor must inform the grand jury of exculpatory evidence known to the government. Tegoseak contends that the prosecutor in his case violated this duty in two ways. First, Tegoseak argues that the prosecutor was required to tell the grand jury that Michelle Maestas had not identified Tegoseak as one of the men in the Bronco-and that, in fact, the only man she identified as having been in the Bronco
was a " filler" . Second, Tegoseak argues that the prosecutor was required to tell the grand jury that Robert Maestas's identification of Tegoseak was less than certain.
For purposes of defining a prosecutor's duty to present evidence to the grand jury, we have defined the term " exculpatory evidence" narrowly: it means only the type of evidence " that tends, in and of itself, to negate the defendant's guilt" . Thus, we have held that a witness's failure to identify the defendant as the perpetrator of the crime, or the fact that a witness's post-event description of the perpetrator did not match the defendant, was not " exculpatory evidence", given the other evidence linking the defendant to the crime.
For example, in Haag v. State, 117 P.3d 775 (Alaska App.2005), the defendant (who was white) argued that the prosecutor violated the duty to present exculpatory evidence because the prosecutor failed to inform the grand jurors that a witness to the crime initially reported that the two perpetrators were black. Id. at 777-78. We held that, in the context of the other evidence linking Haag to the crime, the witness's description of the perpetrators as black was not exculpatory: " The fact that [the witness] initially stated that both robbers were black is certainly something that a defense attorney might use to attack [the witness's] later identification of Haag as one of the robbers. But this is not information that negates Haag's guilt in and of itself. " Haag, 117 P.3d at 778 (emphasis added).
In Tegoseak's case, the police responded quickly to the Maestas's report of the Bronco being driven in an erratic manner, and there is essentially no doubt that, when the police stopped the Bronco, the vehicle contained the same people that Michelle and Robert Maestas had observed minutes Before . As Judge Wolverton noted when he issued his rulings on Tegoseak's pre-trial motions, there is essentially no possibility that Tegoseak was misidentified as one of the drivers of the Bronco.
Given these circumstances, it is extremely unlikely that the grand jurors' decision to indict Tegoseak would have been altered if they had known that Michelle Maestas identified another man's photograph in the photo lineup, or if they had known that Robert Maestas's identification of Tegoseak's photograph was uncertain. For this reason, either the evidence that Tegoseak complains of was not " exculpatory" as that term is defined in our cases, or the State's failure to apprise the grand jurors of this evidence was harmless.
Tegoseak's claim on appeal, and a preliminary discussion of the problems that can be encountered in post-crime eyewitness identification
On appeal, Tegoseak renews his argument that the photographic lineup procedure was unduly suggestive, and he further argues that when the facts of the case are analyzed under the factors set forth in Brathwaite, this analysis fails to demonstrate that Robert Maestas's identification of him was reliable.
The photographic lineup in this case does not appear to be overtly suggestive. As Judge Wolverton noted when he denied Tegoseak's suppression motion, the ten filler photographs are quite similar to the two suspects' photographs in facial characteristics and hair style. In other words, Henry's and Tegoseak's photographs did not stand out from the filler photographs in such an obvious way as to practically single out these two men as the suspects.
But even though a photographic lineup may not be overtly suggestive, the procedure by which the photographs are selected, the procedure by which a photo lineup is displayed to a witness, and the procedure by which the witness's ...