HERRMANN v. STATE, 5682 (Alaska App. 3-2-2011)


Court of Appeals No. 5682.Court of Appeals of Alaska.
March 2, 2011.

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-02-11320 CR.

Douglas Moody, 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 Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

BOLGER, Judge.

Scott Shelley received a telephone call advising him that there was a station wagon at Bean’s Café that had been stolen from his consignment lot. Shelley drove his tow truck into the parking lot at Bean’s and saw the station wagon starting to circle the lot. Shelley pulled his tow truck in front of the station wagon, then ran to the driver’s door and dragged the driver out of the vehicle.Page 2

Shelley initially jumped on the driver and yelled for someone to call 911. When the driver began walking away, Shelley followed the driver for ten to fifteen minutes until the police arrived. Shelley testified that the person he removed from the driver’s seat of the station wagon was the same person that the police took into custody.

Anchorage Police Department Sergeant David Koch was dispatched to Bean’s Café. Koch saw the tow truck blocking the station wagon when he arrived. The individuals in the tow truck identified Charles E. Herrmann as the driver of the stolen vehicle, and Koch took Herrmann into custody.

After he was arrested, Herrmann asked the police to retrieve his backpack from the station wagon and give it to a friend. Anchorage Police Officer John Glor found Herrmann’s backpack in the console area of the stolen station wagon and gave the backpack to Herrmann’s friend.

Herrmann was indicted for felony driving under the influence, [fn1]
felony refusal to submit to a chemical test, [fn2] and first-degree vehicle theft.[fn3]

Prior to trial, a prosecutor’s assistant showed a photograph of Herrmann to Shelley and asked whether the picture showed the driver of the stolen vehicle. Herrmann then moved to preclude Shelley from offering any in-court identification of Herrmann, arguing that this photo identification procedure was unduly suggestive.[fn4] The judgePage 3
denied Herrmann’s motion and allowed Shelley to identify Herrmann during the trial. Herrmann was convicted on all counts.

The reliability of an eyewitness’s identification is determined by examining “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.”[fn5] An in-court identification that violates due process requires reversal of a defendant’s conviction, unless the violation is harmless beyond a reasonable doubt.[fn6]

In Tegoseak v. State, we examined a similar case where the witnesses followed the defendants and identified them to the police.[fn7] Two witnesses observed a car driving erratically and called 911.[fn8] The witnesses lost sight of the vehicle for a short time, but then located the vehicle and followed it until the police arrived.[fn9] We concluded that it was unnecessary to decide whether the photo line-up procedure in Tegoseak’s case was unnecessarily suggestive because any error was harmless beyond a reasonable doubt.[fn10]

In this case, there was no serious dispute that Sergeant Koch arrested the same man that Shelley had pulled from the stolen vehicle. Therefore, there is no doubtPage 4
that the jury would have convicted Herrmann, even if Shelley’s in-court identification had been suppressed.

If the trial judge committed any error when he allowed Shelley to identify Herrmann in court, then that error was harmless beyond a reasonable doubt. We AFFIRM the superior court’s judgment.

[fn1] AS 28.35.030(n).

[fn2] AS 28.35.032(p).

[fn3] AS 11.46.360(a)(1).

[fn4] See generally Holden v. State, 602 P.2d 452, 455-56 (Alaska 1979) (analyzing whether the use of a single photograph in an identification requires reversal of a conviction).

[fn5] Id. at 456 (quoting Manson v. Braithwaite, 432 U.S. 98, 114
(1977)); but see Tegoseak v. State, 221 P.3d 345, 346 (Alaska App. 2009) (questioning the continuing validity of these factors).

[fn6] Tegoseak, 221 P.3d at 363.

[fn7] Id. at 347-48.

[fn8] Id. at 347.

[fn9] Id.

[fn10] Id. at 363.Page 1