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Young v. State

Supreme Court of Alaska

June 17, 2016

ARRON N. YOUNG, Petitioner,
v.
STATE OF ALASKA, Respondent

          Petition for Hearing from the Court of Appeals of the State of Alaska, on Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Court of Appeals Nos. A-11006/11015, Superior Court Nos. 4FA-08-03022/02834 CR.

         Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.

         Eric A. Ringsmuth, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Respondent.

         Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger, Justices. [Winfree, Justice, not participating.].

          OPINION

         MAASSEN, Justice.

         I. INTRODUCTION

         A defendant accused of involvement in a shooting was convicted at trial, in part on the strength of three eyewitness identifications. He challenged the admissibility of two of the identifications on due process grounds, but the superior court ruled them admissible. The defendant also requested an eyewitness-specific jury instruction, which the superior court refused. Finally, the defendant argued that he was entitled to a mistrial because of an alleged discovery violation by the State that he learned of mid-trial. The superior court denied his motion, finding that the State had not violated the disclosure rules and alternatively that the defendant had not suffered any prejudice. The defendant was convicted, and the court of appeals affirmed his conviction.

         On petition to this court, the defendant argues not only that we should reverse his conviction based on the current law on the admissibility of eyewitness identifications but also that Alaska's due process clause requires the adoption of a new test. He also argues that the superior court erred in failing to give his requested jury instruction and in failing to grant him a mistrial.

         We hold that the superior court erred under the law as it currently exists when it held one of the eyewitness identifications sufficiently reliable to be admitted at trial, but that it did not err in admitting the other. We also hold that the superior court erred in refusing to give an eyewitness-specific jury instruction but did not err in denying a mistrial. Because the errors are harmless, we affirm the defendant's conviction.

         We also conclude, however, that the current test for the admissibility of eyewitness identification evidence does not adequately protect the right to due process under the Alaska Constitution. We therefore identify factors that courts should consider in future cases when deciding whether to admit eyewitness identification evidence.

         II. FACTS AND PROCEEDINGS

         A. The Crime And The Investigation

         During the summer of 2008 a series of violent incidents took place in the Fairbanks area between members of two gangs, the Bloods and the Crips. In late July there was a fight inside the Fairbanks Walmart; in early August there was another at the Tanana Valley Fair. Persons known or alleged to be current or former members of the Bloods were later shot at outside the Eagles Hall by persons shouting Crips slogans.

         The incident at issue here occurred on August 15 at approximately 4:00 p.m. A green Buick sedan carrying alleged members of the Bloods was traveling down College Road in Fairbanks, followed by friends in another car. Another vehicle variously described as a gray, silver, or white SUV passed them going the other way, made a U-turn, and pulled up alongside the Buick. Someone in the SUV started shooting at the Buick and continued to do so while the vehicles raced along for what was later estimated to be two miles.

         No one was injured in the shooting, but the Buick was significantly damaged. Bullets also passed through two uninvolved vehicles, narrowly missing their passengers. A bystander walking her bike reported hearing a bullet pass by her head; she jumped into a ditch to take cover.

         Later that evening the police arrested Arron Young. He had a gun in the waistband of his pants and the key to a silver SUV in his pocket.

         The police interviewed witnesses from the scene and put out a request for those with information to come forward. Jason Gazewood, a criminal defense attorney and former prosecutor, contacted the police department to report that he had witnessed part of the gunplay. A police detective visited Gazewood's office and showed him a six-person photographic array; Gazewood picked Young as looking most like the man he had seen behind the wheel of the SUV.

         A grand jury convened in September 2008. There Gazewood testified about what he had seen. Another witness, Arles Arauz, also identified Young as the driver of the SUV. Although Arauz had told the police immediately after the incident that he was unable to identify the assailants, at the grand jury hearing he picked Young's picture out of a photographic array. But a third grand jury witness, John Anzalone, failed to identify Young and picked another man instead.

         The grand jury indicted Young for attempted murder in the first degree and misconduct involving weapons in the first degree.

         B. Young's Motion To Suppress Gazewood's Identification

         Trial was eventually set for January 4, 2010. In late December 2009 Young moved to suppress Gazewood's pretrial and in-court identifications, claiming that the pretrial identification procedure had been unnecessarily suggestive.

         The superior court held an evidentiary hearing. Gazewood testified that the police detective had come to his office about three days after the incident and showed him a six-person photographic array. He testified that he remembered " saying something about . . . having a recollection of it being someone of Samoan descent . . . before the lineup was brought out," though he could not recall whether he said this on the telephone or after the detective arrived at his office. The detective testified that he did not remember whether Gazewood had identified the driver's race in the phone call.

         The photographic array contained photographs of six black men but no Samoans. The detective testified that, because Gazewood was an attorney experienced in criminal law, he did not give Gazewood any instructions before showing him the array; he assumed Gazewood would understand the process and its purpose. Gazewood testified that although he was given no instructions, he assumed that the array contained the suspect because he had been involved in many such procedures in the past. He also testified, however, that he did not feel he was required to select someone from among the photos he was shown.

         Gazewood testified that he quickly narrowed his choice to two photos, one of which was Young's. Though conflicted, he was most focused on Young; he testified that the way Young's hair was pulled back in the photograph made him " more like the person I'd seen in the vehicle certainly." He testified that he put his finger tentatively on Young's photograph, at which point the detective told him to " trust your instincts." Gazewood testified that the detective's remark terminated his deliberations, and he selected Young as the man who looked most like the one he had seen in the SUV. When asked at the hearing whether he believed the detective was suggesting the desired result, he answered:

Yeah, I . . . think he saw me laboring over it and spending a little more time pointing to Mr. Young than the other two, or the other one by the time I had eliminated one of them. And I took it as, you know, you're pointing to this guy more than the others, you know, that's the guy you should identify. . . . I took it as that's the guy we want you to pick.

         Gazewood testified that he was leaning toward Young anyway but that the detective's remark " ended this elimination process that I was kind of . . . undergoing. . . . [I]t was a process that was taking a little bit of time and . . . that certainly ended it." The detective testified that he did not remember telling Gazewood to " trust your instincts" but that he knew Young was the suspect and knew Young's photograph was included in the array.

         At the evidentiary hearing Gazewood also testified about what he saw of the crime. He testified that while he was waiting at a stoplight on College Road, " the thing that drew [his] attention" was that a " green car" coming from behind him drove " into the oncoming lanes of traffic" to get around the cars waiting at the light. He testified that he then saw a white SUV coming up quickly behind him, and that he observed the driver of the SUV in his rearview mirror for " between three and eight seconds" before the vehicle passed him on the left in pursuit of the green car. He also testified that he had seen Young's photo in the newspaper a week before the evidentiary hearing, and the newspaper photo looked more like the person he recalled seeing at the time of the shooting than did the photo he picked in the array.

         The superior court denied Young's motion to suppress. Employing the test we have adopted from Manson v. Brathwaite, a decision of the United States Supreme Court,[1] the superior court first found that the photographic array itself was not unnecessarily suggestive because there was " nothing in the photo array to distinguish the defendant's photo from the others." The court found that the detective made the " trust your instincts" comment but that it was not suggestive and did not influence Gazewood's choice. Finally, the court determined that even if the procedure was unnecessarily suggestive, Gazewood's identification of Young was still reliable under the totality of the circumstances and therefore admissible.

         C. Trial

         1. Pretrial disclosure of Anzalone's identification of Young

         On the first day of trial Young informed the court that the State had just disclosed a police report stating that John Anzalone, who had failed to select Young from the photographic array when testifying before the grand jury, would now identify Young as one of the shooters. Anzalone had informed the prosecutor that he had seen Young's picture on television in connection with the case about a week before trial and was prepared to identify him in court.

         Young objected to Anzalone's testimony. He claimed that the pretrial publicity had tainted Anzalone's identification and it was therefore unreliable. He argued that any in-court identification by Anzalone would be improperly suggestive because Young would be the only African-American man sitting at the defense table and this suggestiveness could not be overcome because Anzalone's identification of Young otherwise lacked sufficient indicia of reliability. The superior court ruled that while Anzalone could not testify that he had first recognized Young on television (unless the defense raised the issue on cross-examination), he could identify Young in the courtroom. The court determined that Anzalone's failure to pick Young from the initial photo array did not affect his ability to identify Young at trial, and that any problems with the in-court identification were properly addressed through cross-examination.

         2. The State's case at trial

         The State presented testimony from occupants of the Buick sedan and the following vehicle, only one of whom, Arauz, could identify a shooter. Some witnesses were unable to say how many people were in the assailants' SUV, while others testified it had two to four occupants. One witness testified that the assailants had bandanas over their faces.[2]

         The driver of the Buick, Joseph Fainuu, testified that although he did not see who was shooting at them, the shots were coming from a gray SUV. He testified that the SUV was the one identified by the State. He further testified that he knew Young by the nickname " Big Nasty" and that he had seen Big Nasty driving the SUV at times before the shooting. Another of the Buick's occupants testified that he had heard others refer to the gray SUV as " Big Nasty's car" at the time of the Eagles Hall shooting, and that, though he could not identify Young as a participant in the College Road shooting, the SUV the State alleged to belong to the shooters appeared to him to be Big Nasty's car. And another witness who had been riding in the second vehicle testified that he heard someone in his car identify the silver SUV as " Big Nasty's truck" right before the shooting started.

         The State's ballistics evidence indicated that shell casings retrieved from the scene of the shooting were probably ejected from the gun found in Young's waistband at the time of his arrest. The State also established that the key found in Young's pocket fit the silver SUV identified as the one used in the shootings.

         The State presented three eyewitnesses to place Young at the scene. Consistent with his testimony at the evidentiary hearing, Gazewood testified that Young looked like the man he saw drive past him in the SUV. His testimony, however, reflected some uncertainty. He did not say Young was definitely the driver, only that upon seeing Young's photo in the array he " thought that . . . that looked a lot like the person there and then seeing [Young's] photograph in the paper made me think that that looked a lot like the person I'd seen."

         The second eyewitness, Anzalone, testified that he was starting a left turn at a traffic light on College Road when he heard " several popping noises" coming from his left. He testified that he saw two vehicles coming directly toward him and " what looked like somebody firing a pistol out of [the] driver's side window" of one of them, an SUV. He testified that he reversed back through the intersection to avoid the oncoming vehicles and, while doing so, observed Young at the wheel of the SUV, though he did not make note of any passengers. Anzalone identified the driver definitively in court as the man " sitting at the defense table," but he also acknowledged his earlier failure at the grand jury to pick Young out of a photo array.

         The third eyewitness, Arles Arauz, was an admitted former member of the Bloods. Arauz had known Young since high school, when Young " beat [him] up" in a fight over a romantic interest. Arauz testified that at the time of the shooting he was riding in the vehicle following the Buick sedan. He testified that the Buick started a Uturn, at which point a gray SUV " pull[ed] up and -- from the back behind and then start[ed] shooting at it." He testified that he saw Young driving the gray SUV as it passed him in pursuit of the Buick.

         Young sought to impeach Arauz on grounds that, although he had identified Young at the grand jury, he had told investigating detectives right after the crime that he could not identify any of the shooters. But Arauz insisted he had identified Young to the police on the night of the shooting; this caused some confusion at trial. In the absence of the jury, Arauz testified that the night of the shooting, after he had denied knowing any of the shooters, he met with one of the investigating detectives in an off-the-record interview and identified Young. The superior court recessed for the day to allow the prosecution to investigate the matter.

         3. Young's motion for mistrial based on Arauz's newly revealed statements to an investigator

         The next morning the State filed with the court a supplemental report of an investigating detective, Detective Elzey, which described how he had indeed met with Arauz a second time on the night of the shooting, after Arauz's initial failure to identify any of the shooters. The report explained that an unidentified man had called the police station that night, stating that a friend knew about the shooting but would talk to investigators only if what he told them was not written down or recorded. Elzey agreed to these terms, and Arauz appeared at the police station and identified Young as the shooter. Called to the stand for voir dire, Elzey testified that he did not disclose this conversation to the prosecutor because he had promised not to. Instead, he decided to wait to see how Arauz testified at the grand jury; if Arauz again identified Young, the detective would consider the matter resolved, and if he did not identify Young the detective would inform the prosecutor of the inconsistency. When Arauz positively identified Young at the grand jury, Elzey decided that no disclosure was necessary.

         Young moved for a mistrial. He argued that the State's failure to disclose Arauz's same-day identification of Young violated Rule 16 of the Alaska Rules of Criminal Procedure and prejudiced his defense, which rested in part on showing that Arauz decided to falsely identify Young at the grand jury only after learning that Young was already a suspect. Young argued that Arauz's earlier identification, before he knew that Young was a suspect, damaged his ability to impeach Arauz, and that had he known before trial of the same-day identification he might have pursued a defense of justification instead of denying his involvement.

         The superior court denied the motion. It found that there was no violation of Rule 16 because the rule requires only disclosure of written or recorded witness statements, and Arauz's statement to Detective Elzey was neither written nor recorded; it also found that disclosure of Arauz's grand jury identification satisfied the requirements of the rule. The court further found that, even if there had been a violation of Rule 16, Young was not prejudiced because he knew from the grand jury testimony that Arauz would identify Young as the shooter. But the court offered to continue trial for a day to allow Young to further investigate the matter,[3] and it allowed the defense the option of excluding evidence that would corroborate Arauz's claim that he had made a same-day identification.

         4. Young's defense

         Young presented his alibi defense. His sister Angie testified that although she and Young were estranged and had not seen each other much in the years leading up to the shooting, she was with him that afternoon at his apartment. She testified that a person she knew as " Little O" came over during the afternoon and gave Young a gun. Young also presented evidence disputing his possession or ownership of the SUV, as well as evidence relating to the earlier gang disputes that implicated a different Crips faction than the one to which he belonged.

         5. Young's requested jury instructions

         After the close of evidence, Young asked the court to give a jury instruction, based on case law from the Alaska Court of Appeals and other jurisdictions, that identified factors affecting the reliability of eyewitness identifications. Alternatively, Young asked the court to give the jury instruction approved by a federal appeals court in United States v. Telfaire .[4] The superior court declined to give either one. It found Young's customized instruction " more argument than it [was] a proposition of law," rejected the Telfaire instruction on the same grounds, and decided that the issues raised by the eyewitness identifications were fully addressed by the existing pattern jury instructions regarding the credibility of witnesses generally and the State's burden of proof.

         The jury convicted Young on all counts.

         D. Appeal To The Court Of Appeals And Petition For Hearing

         Young appealed his conviction to the court of appeals.[5] He argued first that the superior court erred when it failed to suppress Gazewood's identification under the standard set out in Manson v. Brathwaite.[6] The court of appeals disagreed with the superior court in part, holding that the identification procedure had indeed been unnecessarily suggestive.[7] But the court of appeals ultimately found no error in admitting Gazewood's identification, concluding that it was nonetheless reliable under the totality of the circumstances.[8]

         Young also argued that the superior court erred when it allowed Anzalone to make his in-court identification.[9] The court of appeals noted the superior court's reasoning: (1) " that it was not impermissible for a witness who failed to identify a defendant in a lineup to make an in-court identification later" ; (2) " that Young could cross-examine Anzalone and bring out the factors that might cast doubt on Anzalone's identification" ; and (3) that although Young was the only African-American man at the defense table, " in a criminal trial, the defendant is almost always the only person at the defense table aside from his attorney." [10] On this rationale, the court of appeals held " that the [superior] court did not abuse its discretion by permitting Anzalone to make an in court identification." [11]

         Young also challenged the superior court's failure to give either of his requested jury instructions on eyewitness testimony.[12] As the court of appeals noted, Young acknowledged " that this court has previously affirmed convictions where the trial court gave the pattern instruction instead of a more focused instruction on eyewitness identification" ; [13] the court of appeals " adhere[d] to those prior decisions and conclude[d] that the trial court did not abuse its discretion in giving the pattern jury instruction in this case." [14]

         Finally, Young argued that the superior court erred when it refused to grant a mistrial based on the State's failure to disclose Arauz's same-day identification of Young as one of the assailants.[15] The court of appeals held that the superior court erred in deciding that the failure was not a discovery violation, because the prosecution's conduct " violated both the text and the spirit of Criminal Rule 16, which is designed to prevent precisely this type of unfair surprise." [16] It concluded, however, that the superior court had not erred in refusing to grant a mistrial, because Young had failed to show prejudice.[17] The court of appeals observed that " the major prejudice Young alleged" was that he might have abandoned his alibi defense for a defense of justification; it also observed, however, that a justification defense would have been " completely inconsistent" with either Young's alibi defense or the State's evidence.[18] Further, " Young did not make an offer of proof or ask to present information to the court in camera to establish that he had evidence to support the defense." [19] The court of appeals accordingly found no error in the superior court's denial of a mistrial.[20]

         Young filed a petition for hearing with this court. He urged us to abandon our reliance on Manson v. Brathwaite, " adopt a different test for the admission of eyewitness identification evidence under the Alaska Constitution," and reverse his conviction. He argued that even in the absence of a new test, Alaska law required that the Gazewood and Anzalone identifications be excluded. He also argued that the court of appeals erred by affirming the superior court's refusal to give his requested instructions and to grant a mistrial. We granted Young's petition.

         III. STANDARD OF REVIEW

          " The proper extent of appellate review for an unpreserved claim of constitutional error is a question of law that we review de novo." [21] " We apply our independent judgment to any questions of law, adopting the rule of law that is most persuasive in light of precedent, reason, and policy." [22]

          The determination whether an identification has been derived from unnecessarily suggestive identification procedures and, if so, whether it is nonetheless sufficiently reliable to be admitted at trial in conformance with due process is a mixed question of law and fact.[23] On mixed questions we " review[] the superior court's factual findings for clear error, and the legal issues de novo." [24]

          " As long as the jury is properly instructed on the law, . . . the trial [judge] has broad discretion to determine whether to give instructions specially tailored to the case at hand." [25] " Issues involving the adequacy of jury instructions generally raise questions of law and are subject to de novo review." [26]

          " [T]he trial court is vested with 'wide discretion' in determining whether a mistrial should be granted and its decision will be disturbed only if an abuse of discretion is shown." [27]

         IV. DISCUSSION

         In its 2009 opinion in Tegoseak v. State, the court of appeals highlighted a number of weaknesses in the way courts, including Alaska's, have evaluated the reliability of eyewitness testimony in the decades since the United States Supreme Court's formative opinion in Manson v. Brathwaite.[28] Young contends that it is time for this court to take a similarly close look at the scientific evidence related to eyewitness identifications and to change the standards for determining their admissibility and the instructions that inform juries about how to assess their weight. As explained below, while we conclude that a change in the way we evaluate eyewitness identifications would not change the result in Young's case, we agree that a Brathwaite -based test fails to take into account the myriad factors now generally known to affect the reliability of eyewitness evidence, and that such a test can no longer be viewed as consistent with Alaska's constitutional guarantee of due process.

         A. Young's Challenges To The Eyewitness Identifications Admitted At Trial Do Not Require Reversal Of His Conviction.

         Young argues that it was error to admit the Gazewood and Anzalone identifications at trial. He first contends that because the test we use to evaluate eyewitness identifications is insufficiently protective of due process, we should adopt in its place a new test based in part on due process protections and in part on the Alaska Rules of Evidence. He also contends that it was error to admit the Gazewood and Anzalone identifications even under current law.

         Young did not explicitly propose a new test for eyewitness identification evidence to the superior court or the court of appeals. Having arguably failed to preserve the issue, he urges us to adopt a " futility exception" to the preservation rule. We see no need to do so here. First, we conclude that it was error to admit Gazewood's identification of Young at trial even under the existing Brathwaite test, as we discuss below, though we also conclude that the error was harmless. Second, we conclude that it was not error to admit Anzalone's in-court identification and that our conclusion would not be different under a new, more protective test. Thus, the application of a new test for the admissibility of eyewitness identifications would not change the result in Young's case.

         As noted above, however, we are nonetheless convinced that the Brathwaite test does not adequately screen out unreliable eyewitness identifications at trial and therefore does not adequately protect defendants' due process rights under the Alaska Constitution. We outline today the factors relevant to the admission of eyewitness identification testimony that courts should consider in future cases.

         1. Under the Brathwaite test it was error to allow Gazewood to identify Young as the driver -- but that error was harmless.

         Nearly 50 years ago the United States Supreme Court decided that a pretrial identification procedure could be " so unnecessarily suggestive and conducive to irreparable mistaken identification that [a defendant] was denied due process of law" when the witness later testified at trial about the pretrial identification[29] or identified the defendant in court as the perpetrator.[30] We embraced these principles as consistent with the due process clause of the Alaska Constitution.[31]

         In Manson v. Brathwaite, the Supreme Court clarified that an unnecessarily suggestive pretrial identification procedure does not require automatic exclusion of the identification on due process grounds.[32] Rather, " reliability is the linchpin in determining the admissibility of identification testimony." [33] In determining reliability, " [t]he factors to be considered are set out in [ Neil v. ] Biggers " (the " Biggers factors" ), which " include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." [34] " Against these factors is to be weighed the corrupting effect of the suggestive identification itself," evaluated in light of the totality of the circumstances.[35]

         In this case, the superior court found that the procedure used for Gazewood's initial identification of Young (including the detective's comment to " trust your instincts" as Gazewood lingered over Young's photo) was not unnecessarily suggestive. It also found that the identification was sufficiently reliable to be admitted even if the procedure had been unnecessarily suggestive. The court of appeals held that the superior court erred in determining that the procedure was not unnecessarily suggestive but that the identification was nonetheless sufficiently reliable to be admitted.[36] We agree with the court of appeals' first conclusion but disagree with its second. We hold that in addition to being the product of an improperly suggestive procedure, Gazewood's identification was not sufficiently reliable to be admitted. Accordingly, we hold that it was error to allow Gazewood to identify Young at trial as the driver.

         a. The procedure through which Gazewood identified Young as the driver was unnecessarily suggestive.

         According to the State, the court of appeals erred in deciding that the procedure for Gazewood's pretrial identification was unnecessarily suggestive, because Gazewood had already chosen Young as the driver before the detective said to " trust your instincts." But the court of appeals rejected this argument,[37] and it was correct to do so. While Gazewood testified that he " was kind of going there" in selecting Young as the shooter and may well have picked Young anyway, he also testified that he took the detective's comment to mean " that's the guy we want you to pick" and that it ended his deliberations. He testified that what " stopped the process of me, . . . you know, looking at the photo identification was [the detective's] going trust your instinct. I mean, that ended this elimination process I was kind of . . . undergoing. . . . [T]hat certainly ended it." He agreed that the detective's comment was " pretty suggestive, yeah." We conclude that the court of appeals was correct to hold that the detective's comment made Gazewood's identification procedure " so suggestive as to create 'a very substantial likelihood of irreparable misidentification.'" [38]

         b. It was error to hold that Gazewood's identification of Young was reliable despite the unnecessarily suggestive identification procedure.

         Though concluding that the identification procedure was unnecessarily suggestive, the court of appeals affirmed the admissibility of Gazewood's identification testimony because it determined that his identification of Young was nonetheless reliable under the Brathwaite test.[39] We conclude that this was error.

         The court of appeals summarized the superior court's findings relating to the five Biggers factors, noted that " eyewitness testimony is often critical and is the kind of testimony that juries have traditionally been able to evaluate," and determined that " because of Gazewood's extensive prior experience with lineup procedure and his criticism of the procedure used in this case, his testimony was effective in establishing the problems with the photo lineup and the influence this procedure had on his identification." [40]

         We agree that Gazewood's testimony -- due to both his own expressed qualms about the identification process and an adept cross-examination -- alerted the jury to a number of factors relevant to assessing the reliability of his identification of Young.[41] But under Brathwaite the testimony was not admissible unless the identification was reliable, and, following an unnecessarily suggestive identification procedure, a finding of reliability depends on an evaluation of the five Biggers factors: " the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." [42] We disagree that such an analysis supports the superior court's finding of reliability in this case.

         Supporting the reliability of Gazewood's identification is " the length of time between the crime and the confrontation." [43] The three days that passed before Gazewood saw the photo array is longer than the time involved in other cases in which we addressed the reliability of eyewitness identifications,[44] but not so long as to weigh against a finding of reliability given the circumstances of this case.[45]

         More weakly supporting reliability is the superior court's finding that Gazewood " had a sufficient degree of attention to the events" [46] because the fast approach of the vehicles in his rearview mirror put him on the alert. But Gazewood readily acknowledged the simultaneous distractions of the other cars stopped at the light, the changing signal, and having to watch for cross-traffic.

         The remaining three Biggers factors weigh against a finding of reliability. Considering Gazewood's " level of certainty," the superior court found that his " conduct during the photo lineup and his demeanor while testifying suggest a significant degree of certainty." Lacking the trial judge's perspective on Gazewood's demeanor, we nonetheless note that Gazewood repeatedly declined to state definitively that Young was the man he had seen. He testified at the evidentiary hearing that when the detective said " trust your instincts," he had narrowed his choice down to two photos that " looked vaguely familiar" -- " I remember the two of them looked vaguely like the person that I saw" -- and that even though the detective's comment terminated his deliberation with the choice of Young, he " [didn't] know necessarily where [he] would have wound up" otherwise. Describing his earlier identification of Young at the grand jury, Gazewood testified, " I said he looked . . . the most like the guy I saw that particular day." Throughout the evidentiary hearing he cautiously avoided stating that Young was definitely the man he had seen; his testimony shows at most a relative certainty that Young looked more like the perpetrator than did the other subjects he was shown.[47] We conclude that Gazewood's level of certainty does not support a finding of reliability.

         Considering Gazewood's " opportunity . . . to view the criminal at the time of the crime," [48] the superior court found that he was a " bona fide on the scene witness who had a good view of the events[,] . . . saw the events unfolding up close," and had " three to eight seconds to witness [those] events." While these findings do reflect Gazewood's testimony, we also note that his brief view of the driver in his rearview mirror was not enough to give him confidence in his identification, as noted above; in fact, Gazewood cited these details to explain why he hesitated to say definitively it was Young. He readily admitted that while the SUV was coming up behind him the light changed, traffic started to move, and his focus was shifting back and forth. It is also worth noting that in Gazewood's quick sighting of the driver in his rearview mirror he identified him as Samoan (whereas Young is African American), identified the SUV as white (whereas Young's SUV was gray or silver), and failed to note the presence of any passenger (until the SUV had passed him, when he saw a hand with a gun extend from the passenger-side window and start shooting). Under the circumstances, we cannot agree that Gazewood's opportunity to view the perpetrator weighs in favor of the reliability of his identification.[49]

         Finally, with regard to " the accuracy of [the witness's] prior description of the criminal," [50] the superior court found significant that Gazewood had previously identified the shooter as a " Black or Samoan man who had his hair pulled back." This factual finding, however, is clearly erroneous: while Gazewood consistently recalled that the driver's hair was " pulled back," he initially described the man not as " Black or Samoan" but as " Samoan." [51] And other than the pulled-back hair and " kind of a round face," the record does not reflect that Gazewood could or did describe the driver's facial features, clothing, or other distinguishing characteristics. While Gazewood's initial description of the driver may have matched Young in a very general sense, we conclude that it was not accurate or specific enough to support a finding that his later selection of Young's photograph was reliable.[52]

         The Brathwaite test requires that we weigh the five Biggers factors " [i]n light of the totality of the circumstances" against " the corrupting effect of the suggestive identification itself." [53] Given that only two of the Biggers factors provide only modest support for a finding of reliability, we conclude that they cannot overcome the unnecessary suggestiveness of the photo array. We therefore hold that it was error to admit Gazewood's identification of Young at trial.

         c. The error in admitting Gazewood's identification at trial was harmless.

         We conclude, however, that the error in admitting the evidence of Gazewood's identification was harmless beyond a reasonable doubt.[54] The admission of an unreliable eyewitness identification at trial is harmless " if there [is] conclusive independent evidence, apart from the [unreliable] identification testimony[,] . . . that identified [the defendant] as the [culprit]." [55]

         In prosecuting Young, the State did not rely solely on Gazewood's identification; two other eyewitnesses placed Young at the scene. Arles Arauz, who had known Young since high school, identified him as the driver of the SUV. John Anzalone, another driver near the shooting, positively identified Young as the driver. And significant circumstantial evidence tied Young to the crime. The key in his pocket when he was arrested was found to operate the SUV the State alleged was used in the shooting. The State's witnesses identified the SUV as belonging to " Big Nasty," a nickname for Young. The nine-millimeter Luger pistol Young was carrying when he was arrested was shown to match bullet casings found at the crime scene.

         In assessing whether the erroneous admission of Gazewood's identification was harmless, we also find significant the extent to which he qualified his own testimony by emphasizing the brevity of his opportunity to view the perpetrator and his frustration with what he considered to be a suggestive comment at the photo array.[56] Admission of a weak and equivocal identification is more likely to be harmless error than admission of a strong and confident one.[57]

         Thus, despite the error in admitting Gazewood's identification, the fact that there was " conclusive independent evidence, apart from the [unreliable] identification testimony," [58] implicating Young in the shooting leads us to conclude that the error was harmless beyond a reasonable doubt.

         2. It was not error to allow Anzalone to identify Young in court.

         Young also argues that it was error to permit Anzalone, who had failed to identify him at the grand jury, to identify him at trial as the driver after having seen his photo on the television news. We conclude that this was not error.

         a. Due process protections against unnecessarily suggestive identifications do not apply to Anzalone's initial identification of Young after seeing his picture on television.

         Young argues first that Anzalone's identification of him after seeing his picture on the television news constitutes an unnecessarily suggestive identification procedure and that the superior court should have assessed its reliability under the Brathwaite test before allowing Anzalone to identify Young in court. But the due process protections against unnecessarily suggestive identification procedures do not apply in the absence of state action.[59] As the United States Supreme Court has recently held, the " due process check on the admission of eyewitness identification [is] applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime." [60]

When no improper law enforcement activity is involved,... it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post-indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.[61]

         Consistent with these principles, we held in Kimble v. State that accidental confrontations do not ordinarily implicate due process concerns.[62] Such a confrontation " may be the subject of cross-examination of course, but on the whole the question is one going to the weight rather than the admissibility of the evidence." [63] While the facts in Kimble -- where the police were alleged to have arranged an " accidental" showup with the witness--made for a close question,[64] this is not such a case. Because there was no state action involved in Anzalone's identification of Young from a picture on the television news, due process did not require that the superior court screen it for reliability under Brathwaite.

         b. Due process protections against unnecessarily suggestive eyewitness identifications do not apply to Anzalone's first-time in-court identification.

         Young also argues that Anzalone's in-court identification of him was itself unnecessarily suggestive because it " was equivalent to a show-up, where an individual is presented with one suspect and asked to make a yes or no identification." Young observes that he was the only African-American man in the courtroom and that he was sitting at counsel table with his lawyer. He contends that given the suggestiveness of these circumstances, the superior court should have assessed the reliability of the resulting identification under Brathwaite and should have excluded it.

         We have never directly addressed whether a first-time in-court identification triggers application of the same due process protections that apply to suggestive pretrial identifications.[65] We now decide it does not. Our conclusion is driven by the fundamental differences between identifications derived from state action prior to trial and those that occur in the courtroom. A pretrial identification ordinarily involves only the police and the witness, and how the identification is later evaluated at trial depends largely on those participants' recollections of it. An in-court identification, in contrast, occurs in the presence of the judge, the jury, and the lawyers. The circumstances under which the identification is made are apparent. Defense counsel has the opportunity to identify firsthand the factors that make the identification suggestive and to highlight them for the jury.[66] We also note that there are other ways, though not used in this case, in which the risks of in-court misidentifications can be either minimized in practice or pointed out to the jury. Expert witnesses can testify about the problems inherent in first-time in-court identifications; [67] the trial court may grant a defendant's request for an in-court lineup or to be seated somewhere other than counsel table for the identification.[68]

         We recognize that this is a close question, and by our decision today we do not mean to foreclose the possibility that a first-time in-court identification could be unnecessarily suggestive. For example, courts have found due process violations where the prosecutor improperly coached the witness into making an in-court identification.[69] In this case, however, Anzalone volunteered his identification of Young. The prosecutor simply asked him whether he could " give us any description of the person that you saw," to which Anzalone answered, " He's in the courtroom today." The prosecutor asked, " Do you recognize him?" and Anzalone responded, " He's sitting at the defense table."

         We emphasize that the due process protections that have been developed around the admissibility of eyewitness identifications, and which we clarify today, are intended to correct for unnecessarily suggestive police conduct during its investigation, and that courtrooms have a number of other safeguards -- impartial judge and jury, competent defense counsel, the rules of evidence, the State's burden of proof -- that are intended to ensure due process.[70] While recognizing that the suggestiveness and reliability of first-time in-court identifications present many of the same issues as those that affect pretrial identifications, we are not prepared to extend the same rules to both. We conclude that the superior court did not err when it allowed Anzalone to identify Young in court as the driver.

         3. Because the Brathwaite test does not adequately protect the right to due process under the Alaska Constitution, we adopt a new approach to deciding the admissibility of eyewitness identification evidence in future cases.

         Although the result in Young's case is unaffected by a prospective change in the law, we are convinced that Alaska's existing test for the admission of eyewitness identifications does not go far enough in protecting the right to due process under the Alaska Constitution. We generally refrain from issuing advisory opinions,[71] but at times we set aside this judicial policy of self-restraint to correct or clarify important aspects of the law.[72] In the exercise of our general " supervisory power to formulate standards for the enforcement of criminal law in the courts of this state" [73] and our more specific " supervisory powers over state courts pertaining to the admissibility of evidence," [74] we today announce a new test for the admissibility of eyewitness identification testimony that we believe is consistent with the due process protections of Alaska's constitution.

         In so doing we necessarily depart from Manson v. Brathwaite and the Alaska cases that relied on it as the touchstone. " We do not lightly overrule our past decisions." [75] However, " stare decisis is a practical, flexible command that balances our community's competing interests in the stability of legal norms and the need to adapt those norms to society's changing demands." [76] With these considerations in mind, " we will overrule a prior decision only when '" clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." '" [77] We are convinced that this is the case with respect to the Brathwaite test.

         a. Changed conditions justify replacing the Brathwaite test.

          The " changed conditions" that justify abandoning a prior decision include where " related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, [or] facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application." [78] Developments in the science related to the reliability of eyewitness identifications, and courts' responses to those developments, have significantly weakened our confidence in the Brathwaite test as a tool for preventing the admission of unreliable evidence at trial, and therefore its capacity for protecting the due process rights afforded by the Alaska Constitution.[79]

         The State aptly observes that doubts about the reliability of eyewitness identifications are neither " revelatory nor recent." The United States Supreme Court noted even before Brathwaite that " [t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification," and " [t]he hazards of such testimony are established by a formidable number of instances in the records of English and American trials." [80] But " the hazards of such testimony" are even more well documented since Brathwaite.

          Brathwaite was decided in 1977, and " [t]he modern era of eyewitness identification research began" more or less contemporaneously, " in the 1970s." [81] But " [t]he past few decades have seen an explosion of additional research that has led to important insights into how vision and memory work, what we see and remember best, and what causes these processes to fail." [82] The Supreme Court of New Jersey comprehensively surveyed the literature in a 2011 opinion that we find particularly persuasive. The court assigned a special master to consider the scientific evidence on eyewitness identifications and, after receiving the master's report, summarized: " Virtually all of the scientific evidence considered on remand emerged after [ Brathwaite ]," and, while the 1970s " produced only four published articles in psychology literature containing the words 'eyewitness' and 'identity' in their abstracts[, . . .] more than two thousand studies related to eyewitness identification have been published in the past thirty years." [83]

         The State contends that we should not consider scientific evidence that was not subjected to the adversarial process at trial. We " recognize that evaluation of scientific information at the appellate level is without the advantage of cross-examination." [84] Other states' high courts have followed different procedural paths when modifying their standards for evaluating eyewitness identifications. The special master appointed by the New Jersey Supreme Court " to evaluate scientific and other evidence about eyewitness identifications . . . presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies," then issued an extensive report on which the court heavily relied.[85] Other courts, acknowledging the scientific consensus, have not required that the science be tested again in a trial-like process. The Massachusetts Supreme Judicial Court convened a " Study Group" in 2011 to determine how it could improve its model jury instructions for the evaluation of eyewitness identifications.[86] In 2015 the court " review[ed] the scholarly research, analyses by other courts, amici submissions, and the Study Group Report and comments" and adopted new standards.[87] The supreme courts of Connecticut,[88] Hawai'i,[89] Oregon,[90] Utah,[91] and Wisconsin,[92] while noting judicial trends, have also relied directly on the scientific research to explain why their standards should be modified.

         We consider it unnecessary to retest the validity of the scientific evidence on which these other high courts rely. We are not relying on disputed scientific evidence to disturb or affirm the verdict in this case, but rather identifying factors for trial courts' future use -- factors other courts have found highly relevant to their constitutional guarantees of due process. We adopted the Brathwaite test of reliability in 1979 without reference to whether its assumptions were scientifically valid.[93] In the decades that followed we applied a " totality of the circumstances" test that included the Biggers factors because the Supreme Court had decided those factors were relevant.[94] As our sister courts find reason to be dissatisfied with Brathwaite and the Biggers factors, it is appropriate that we take note of their concerns and use their reasoning to inform our own constitutional analysis. We find highly significant the extent to which other courts have reviewed the evidence, accepted it as valid, and filtered it through their own constitutional analyses.

         Ultimately, the movement away from the Brathwaite test in other jurisdictions, in reliance on advances in the relevant research, convinces us that conditions have changed.[95] We conclude that " the legal landscape is very different than it was" when we decided to follow Brathwaite 37 years ago, and " [t]his new diversity of opinions among the high courts of states throughout the country is another reason to conclude that the 'changed conditions' element of the test for overruling precedent is satisfied." [96]

         We also conclude that " more good than harm would result from a departure from" the Brathwaite test.[97] " It is indisputable that a primary goal, perhaps the paramount goal, of the criminal justice system is to protect the innocent accused against an erroneous conviction," [98] and we can not doubt that mistaken eyewitness identifications lead to wrongful convictions.[99] Justice Sotomayor, dissenting in Perry v. New Hampshire, noted that " [t]he empirical evidence demonstrates that eyewitness " misidentification is '" the single greatest cause of wrongful convictions in this country." '" [100] Even the majority opinion in Perry " d[id] not doubt either the importance or the fallibility of eyewitness identifications." [101] And the risks posed by the admission of unreliable identifications is magnified by the effect eyewitness testimony has on the jury: as Justice Brennan noted, " [T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'" [102]

         In sum, we are convinced that the Brathwaite test does not adequately assess the reliability of eyewitness identifications and thus allows the admission of very persuasive evidence of doubtful reliability. In the belief that a new approach -- based on a better understanding of the factors affecting the reliability of eyewitness identifications--will lead to the exclusion of unreliable evidence and thereby reduce the risk of wrongful convictions, we conclude that breaking away from our long reliance on the Brathwaite test will do more good than harm.[103]

         b. The scientific understanding of the factors affecting eyewitness identifications has evolved since Brathwaite.

         The science of human memory developed since Brathwaite shows that memory does not function like a videotape, on which events are simply stored linearly to be recalled later in the same linear way.[104] Instead, there are three major stages of memory and recall. First, in the acquisition stage, " the event is perceived by a witness, and information is entered into the memory system" ; second, in the retention stage, " some time passes before a witness tries to remember the event" ; finally, in the retrieval stage, " the witness tries to recall the stored information." [105] Eyewitness memory is malleable, and many factors can affect the reliability of a memory at each stage of the process of recalling it.[106] And as the court of appeals noted in Tegoseak v. State, a mistaken identification at the beginning of a criminal investigation can " become" the witness's memory for purposes of all subsequent identifications; the erroneous picture displaces the fact.[107]

         Scientific literature often divides the factors that can affect the reliability of eyewitness identifications into two categories: " system variables," which are manipulable and can be influenced by the criminal justice system (such as the instructions given a witness during a lineup); and " estimator variables," which cannot be influenced by the criminal justice system because they are related to environmental conditions and personal characteristics (such as the stress of the moment).[108] In replacing the Biggers factors with a list that draws on these two categories of variables, we follow most closely the New Jersey and Oregon supreme courts' decisions in State v. Henderson [109] and State v. Lawson.[110] Like those courts, we recognize that the science of eyewitness identifications is " probabilistic" ; it cannot say for certain whether any particular identification is accurate but rather identifies the variables that are relevant to evaluating the risk of a misidentification.[111]

         System Variables

         i. Blind administration[112]

          Was the lineup or photo array administered " blind" ? When the administrator of an identification procedure knows who the suspect is, the administrator may subconsciously affect the reliability of the witness's identification.[113] Such influences are referred to as " interpersonal expectancy effects" :[114] " the tendency for experimenters to obtain results they expect . . . because they have helped to shape that response." [115] In the eyewitness identification context, this can occur when the administrator of a lineup or photo array knows which person is the suspect and, consciously or not, gives cues to the witness that affect the witness's choice.[116] The phenomenon is not limited to overt or explicit suggestion; " [e]ven small changes in the experimenter's body posture or expression have been shown to affect participants' responses," though the witness is often unaware that it is happening.[117]

         To prevent these influences on the identification procedure, studies recommend that it be administered " blind." [118] " Double-blind administrators do not know who the actual suspect is. Blind administrators are aware of that information but shield themselves from knowing where the suspect is located in the lineup or photo array." [119]

         ii. Pre-identification instructions[120]

          Was the witness instructed before the identification procedure that the suspect may or may not be present in the lineup, showup, or array, and that the witness need not make an identification? A witness's expectation that a lineup will include the suspect may affect the identification's reliability. Studies attest to the phenomenon of " relative judgment," in which " the witness seems to be choosing the lineup member who most resembles the witness['s] memory relative to other lineup members." [121] Accordingly, studies show that misidentification is less likely if the witness is informed that the suspect might not be in the lineup. For example, two meta-analyses compared the effect of different instructions in lineups in which the perpetrator was present and lineups in which he was not.[122] Both studies concluded that failing to inform a witness that the perpetrator might not be present, when the perpetrator in fact was not, led to more incorrect identifications; that is, a witness tended to select the person who best resembled the one in the witness's memory.[123] By contrast, one of the studies found that instructing witnesses that the lineup might not contain the perpetrator had " minimal effect" on identifications when the perpetrator was present; [124] the other found that such instructions increased correct identifications of the perpetrator.[125] Both studies emphasized the context of the latter finding: in the real world, the police may not know whether a suspect is in fact the perpetrator, and the identification will be affected by a host of other variables.[126] Accordingly, " no good can come from biased instructions." [127]

         iii. The composition of lineups and photographic arrays[128]

          Were there at least five subjects in the lineup or array besides the suspect? Did the suspect stand out in any way from the " fillers " ? Lineups and photo arrays can be constructed in ways that affect their reliability. Most obviously, reliability is compromised if the suspect noticeably stands out from the " fillers" who make up the rest of the group.[129] As a compounding factor, a lineup that suggests a result to the witness may artificially inflate the witness's confidence in the identification because of its apparent ease.[130]

         Courts also conclude, based on the research, that lineups or arrays should include a minimum number of " fillers" in order to ensure an adequate test of the witness's recall and to reduce the chance that an identification is the result of guesswork.[131] Although there is no " magic number" of fillers,[132] many sources recommend a minimum of five per single suspect.[133] By the same logic and to reduce the possibility that a witness will err by guessing, each lineup or photo array should include only one suspect.[134]

         There is significant debate about the desirability of sequential identification procedures -- where suspects are viewed one at a time -- as opposed to simultaneous identification procedures, like lineups and photo arrays, where suspects are viewed as a group.[135] Some scholars believe that the sequential procedure reduces the impact of " relative judgment," thereby increasing accuracy.[136] Others find this conclusion premature.[137] Current research on simultaneous versus sequential procedures seems insufficient to preclude either.

         iv. Feedback and recording confidence[138]

          What feedback, if any, did the witness receive about the identification procedure from the administrator? What expressions of confidence, if any, did the witness make at the time of the identification? An administrator's unconscious cues risk influencing an eyewitness identification after as well as before the witness has selected a suspect. Witnesses who receive confirmatory feedback express " significantly more . . . confidence in their decision compared with participants who received no feedback," [139] and such feedback can lead witnesses to " significantly inflate their reports to suggest better witnessing conditions at the time of the crime, stronger memory at the time of the lineup, and sharper memory abilities in general." [140] Studies suggest that confirmatory feedback has an effect even when it comes 48 hours after an identification,[141] and the effect is powerful across other variables.[142]

         v. Showups[143]

          Was the witness identified in a showup? A " showup" is an identification procedure in which a witness is presented with a single suspect and asked if the suspect is the person who committed the crime.[144] Alaska courts have long restricted the use of showups as an identification procedure to where it is necessary under the circumstances.[145] The problems with showups are apparent: in contrast to lineups and photo arrays, which allow a witness with a faulty memory to pick someone other than the suspect, every positive identification in a showup implicates the suspect.[146] Showups seemingly provide little protection against witnesses who are inclined to guess, as witnesses participating in showups tend to base their identifications on clothing.[147] Research shows that an innocent suspect who resembles the actual perpetrator is more likely to be incorrectly identified in a showup than in a lineup.[148]

         Showups can be reliable when they are conducted immediately after a crime, when the witness's memory is freshest; but research shows that the likelihood of a misidentification increases significantly with showups as little as two hours after the event.[149]

         vi. Multiple viewings[150]

          Was the witness exposed to the suspect after the crime but before making the identification ?[151] Did the witness fail to identify the suspect in an earlier procedure ? The reliability of an identification may suffer if the witness has viewed the suspect more than once during the investigation. This concern arises in part because witnesses struggle to determine whether their memory comes from their original observation of the perpetrator or a later one. Studies describe this as " source confusion" or " source monitoring" error.[152] It arises in a number of different contexts.

         For example, " mugshot exposure" occurs when a witness is repeatedly exposed to a suspect's photograph. The witness may fail to identify the suspect on the first presentation but on the second will recognize the photo; including the same photo in a second presentation can thus raise the risk of misidentification.[153] A similar effect, " mugshot commitment," occurs when a witness identifies a suspect from a photograph and the same photograph is included in a later identification procedure; studies show that in this circumstance the witness is more likely to remain " committed" to the suspect originally selected even if the identification was incorrect.[154]

         Estimator Variables

         i. ...


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