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“INADVERTENT” VIEWING OF DEFENDANT’S PICTURE ON POLICE VEHICLE COMPUTER SCREEN IS NOT AN UNDULY SUGGESTIVE IDENTIFICATION

The Superior Court has decided the case of Commonwealth v. Jaynes, No. 2658 EDA 2014 (March 1, 2016), holding that the inadvertent viewing of a suspect’s picture on a police car computer screen by the victim and the subsequent identification process was not unduly suggestive.

FACTS

Victim was robbed at gunpoint while in his vehicle. He drove to a nearby police cruiser after the robbery and was told by the officer to get inside the cruiser. Once he was inside of the cruiser, he viewed a photo of Jaynes on the cruiser’s computer screen that happened to be there as a result of an unrelated matter. The victim immediately identified the person on the screen as his assailant. The officer then told him that the police were already looking for Jaynes because of a ‘run-in’ they had with him on the night before. The victim thereafter went to the police station to speak with a detective. At the police station, he again identified Jaynes from a photo array.

Jaynes was arrested in connection with the robbery and he proceeded to a jury trial on various charges. The first trial ended in a hung jury on all charges. At the second trial, Jayne’s counsel filed a motion to suppress all potential witnesses’ in-and-out-of-court identifications of Appellant as the perpetrator. Specifically, Jaynes alleged that the out-of-court photo identification procedures used by the police were unduly suggestive and there was no independent basis for an in-court identification. Jaynes’ Motion was denied.

During Jaynes’ second jury trial, the victim identified Jaynes as the perpetrator of the robbery and Jaynes was ultimately convicted of the charges. He filed this appeal.

ISSUES

Among the issues raised in Jaynes’ appeal were:

(1) Whether the trial court erred in failing to suppress the victim’s in-and-out-of-court identifications of Jaynes; and,

(2) Whether the trial court erred in failing to declare a mistrial due to a statement made by the prosecutor in closing argument that constituted prosecutorial misconduct.

HOLDING

The Superior Court held that:

(1) The victim’s in-and-out-of-court identifications of Jaynes were not unduly suggestive so as to give rise to a substantial likelihood of irreparable misidentification; and,

(2) The prosecutor’s request of the jury to “put themselves in the victim’s shoes” did not form in the juror’s minds a fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.

REASONING

SUPPRESSION OF VICTIM’S IN-AND-OUT-OF-COURT IDENTIFICATIONS

Jaynes argued that the victim’s initial out-of-court identification of him was based on an unduly suggestive police display of a single photo, and therefore, the victim’s subsequent out-of-court identification based on a photo array, as well as his in-court identification, were improperly tainted. Specifically, he argued that the demonstration of a single picture, immediately after the crime was committed, in the context of an excited and adrenalized report from the victim of a robbery, was “clearly fraught with the potential for misidentification.” Additionally, he argued that the officer’s comment to the victim immediately after the identification that the police were already looking for Jaynes because of a ‘run-in’ they had with him on the night before gave rise to a substantial likelihood of irreparable misidentification.

The Superior Court first reviewed the applicable due process standards for pretrial identifications. A pretrial identification will not be suppressed as violative of due process rights unless the facts demonstrate that the identification procedure was so infected by suggestiveness as to give rise to a substantial likelihood of irreparable misidentification. And, where a defendant does not show that improper police conduct resulted in a suggestive identification, the identification will not be suppressed.

Applying those standards to Jayne’s identification the Superior Court found the initial viewing of Jayne’s picture on the computer screen inside the police vehicle to be inadvertent and not an attempt to utilize a suggestive single photo identification procedure. Rather, the victim’s viewing of the photo was more akin to a spontaneous identification of a suspect. Additionally, the Court concluded that there was no merit to the suggestion that the officer’s comment about the police having a previous ‘run-in’ with Jaynes the night before resulted in an identification that “was so infected by suggestiveness as to give rise to a substantial likelihood of irreparable misidentification.”

As to the subsequent identification at the police station, the Court concluded that the detective acted “in an abundance of caution and in an effort to further verify the victim’s identification” by preparing a photo array of eight photographs, including Jayne’s. Prior to being interviewed by the detective, the victim viewed the array and immediately identified Jaynes as his assailant. When he was asked how sure he was of his identification, the victim replied: “Positive, 100 percent.”

FAILING TO DECLARE MISTRIAL DUE TO STATEMENT MADE BY PROSECUTOR DURING CLOSING ARGUMENT

Jaynes argued that a mistrial was warranted due to the prosecutor improperly asking the jury to “put themselves in the victim’s shoes” and render a verdict based on sympathy for the victim during the prosecutor’s closing argument.

The Superior Court explained that statements made by the prosecutor to the jury during closing argument will not form the basis for granting a new trial “unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict.” The Court added that not every unwise remark by an attorney amounts to misconduct or warrants the grant of a new trial and that both the defense and prosecution are accorded reasonable latitude and may employ oratorical flair in arguing their version of the case to the jury, advancing arguments supported by the evidence or use inferences that can reasonably be derived therefrom.

In this case, the Court concluded that the prosecutor’s comment was not an attempt to have the jury render a verdict based on sympathy for the victim; rather, it advanced an argument supported by the evidence and addressed the arguments advanced by the defense in summation.

http://www.pacourts.us/assets/opinions/Superior/out/J-A01006-16o%20-%201025659046532178.pdf?cb=1

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