Eric Ryles v. State

MEMORANDUM OPINION No. 04-06-00258-CR Eric RYLES, Appellant v. The STATE of Texas, Appellee From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2004CR4258 Honorable Bert C. Richardson, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Catherine Stone, Justice Karen Angelini, Justice Steven C. Hilbig, Justice Delivered and Filed: August 1, 2007 AFFIRMED Eric Ryles was found guilty of aggravated robbery with a deadly weapon and was sentenced to twenty years confinement in the Texas Department of Criminal Justice Institutional Division. He brings the following two issues on appeal: (1) the trial court erred in denying his motion to suppress an impermissibly suggestive identification; and (2) the trial court erred in overruling his objection to the State's improper jury argument. We affirm. Background On March 5, 2004 at around 10:00 a.m., Erica Guzman was working the morning shift at the Radha Food Mart when a black male, whom she recognized as a customer because he had been in the store two or three times before, entered the store acting suspiciously. Guzman noticed that, despite it not being cold outside, the man was wearing a big jacket and a red fisherman's hat. She watched as the man went to the back of the store and got a bottled drink. After the other customers left, the man approached the counter to pay. He put the drink on the counter and gave Guzman change to pay for it, but when she began counting the change, he lifted his shirt to reveal a black gun tucked into the waistband of his pants. He then told Guzman that he did not want to hurt her and ordered her to give him all the money in the cash register. According to Guzman, she then asked if he wanted a bag. At first, the man indicated that he did, but then after looking around told her no and took the money (which totaled approximately $200). As he was leaving, the man ordered Guzman to keep her head down, sit on the floor, and not pick up the phone to call the police. According to Guzman, the man warned her that if he saw her pick up the phone, he would come back into the store and kill her. The man then went out into the parking lot and sat in a green truck for approximately ten minutes, during which time another customer, an elderly lady, came into the store. After seeing Guzman, the lady asked her what had happened. Guzman told the lady that she had been robbed. The lady attempted to look out the window to get the license plate number, but Guzman warned her not to look out the window because the man might come back and kill them both. After the man drove away in his truck, Guzman called the police. According to Guzman, while waiting for the man to leave the parking lot, she was so scared that she was trembling and vomiting. When the police arrived, Guzman described the suspect as a black male, approximately twenty-four years of age, 5' 8", 160 pounds, short hair, with a goatee, wearing a white T-shirt, blue jean pants, a big jacket, and a red fisherman's hat. She also told the police that she could identify him anywhere because of the scar on his mouth, which looked to her like he had been shot in the mouth. According to Guzman, she noticed that when the suspect would talk, "his mouth was to the side." Guzman also told the police that the whites of the suspect's eyes were yellow. On March 5, 2004, at around 9:50 a.m., San Antonio Police Officer Richard Bianchi was dispatched to a robbery at the Radha Food Mart. Officer Bianchi took the description given by Guzman and put it out over the radio, but no suspect was apprehended. According to Officer Bianchi, after being made aware that a video camera in the store recorded the robbery, he recovered the videotape and secured it as evidence. San Antonio Police Detective Steve Almanza investigated the Radha Food Mart robbery. On March 16, 2004, eleven days after the robbery, he received a lead on a possible suspect from a patrolman. Detective Almanza placed the photo of the possible suspect in an array of six pictures and presented the array to the witness, Erica Guzman. Although this first array contained a picture of a suspect with a distinctive scar on his lip, Guzman did not identify any of the photos as depicting the man who had robbed the store. On the night of March 20, 2004, San Antonio Police Officer Edward Miller was on patrol duty when he was dispatched to an apartment complex to investigate a report of a loud party. As he was leaving the apartment complex, he saw Eric Ryles in a group of people around the apartment entrance and noticed that Ryles matched the description of the suspect in the Radha Food Mart robbery. (1) Officer Miller approached Ryles, told him that he matched the description of a robbery suspect, and asked him to go to the substation to be photographed. Ryles agreed and was taken to a police substation where detectives took photographs of him. Officer Miller then drove Ryles back to the apartment complex. Officer Miller alerted Detective Almanza to the photograph of Eric Ryles, which Detective Almanza then used in creating a second array to show Guzman. Detective Almanza testified that when creating an array, police officers will try to find pictures of individuals who have the same type and length of hair, facial features, and complexion; however, according to Detective Almanza, in this case, because the suspect had a scar on his lip, he could not find pictures of other individuals with the same exact injury. Therefore, he decided to use photos of individuals with facial scars, bruises, or something unusual about their faces. On March 21, 2004, he showed the second array to Erica Guzman. She identified the photograph of Eric Ryles, photograph number five, as the man who robbed her. She then signed and dated the photograph. Detective Almanza testified that when he showed Guzman each array, he told her that he had six pictures to show her, that the suspect may or may not be included, and that she should tell him if she recognized anyone, but that if she did not recognize anyone, she should not guess. At trial, Guzman again identified Eric Ryles as the man who robbed the Radha Food Mart. Guzman recognized Ryles because of the same mark on his lip and his mouth being to the side. She also testified that Ryles's face was one she would never forget: "That a face I can never forget . . . . I have nightmares to this day because of that." Photographic Array In his first issue, Ryles argues that the photographic array used was impermissibly suggestive because the five individuals included with him did not have similar features. Thus, he argues that the trial court erred in denying his motion to suppress. Ryles also contends that the procedure of displaying a six-picture array likely induced the complainant, Guzman, to make an incorrect identification at the time she was shown the array, as well as a misidentification later in court. Due process requires suppression of an in-court identification when a pretrial identification procedure is so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Freeney v. State, No. AP-74,766, 2005 WL 1009560, at *9 (Tex. Crim. App. 2005). In reviewing whether an identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, we look to the totality of circumstances surrounding the identification to determine if the procedure was unnecessarily suggestive. Woodard v. State, No. 74,080, 2005 WL 77143, at *6 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 1040 (2005); Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). An in-court identification that has been tainted by an impermissibly suggestive pretrial identification is inadmissible. Woodard, 2005 WL 77143, at *6; Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Crim. App. 1998). In considering whether an in-court identification has been tainted, we apply a two-step analysis: (1) whether the out-of-court identification procedure was impermissibly suggestive; and (2) whether, if suggestive, the procedure gave rise to a substantial likelihood of irreparable misidentification. Simmons, 390 U.S. at 384; Freeney, 2005 WL 1009560, at *9; Woodard, 2005 WL 77143, at *6. An appellant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive and that the in-court identification was unreliable. Woodard, 2005 WL 77143, at *6; Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995). With regard to the first step of the analysis, suggestiveness may be created by the manner in which the pretrial identification procedure was conducted, such as, by a police officer pointing out the suspect or indicating that the suspect is included in the line-up or photo array. Barley, 906 S.W.2d at 33. Suggestiveness may also be created by the content of the line-up or photo array itself, if the suspect is the only individual closely resembling the pre-identification description. Id. Here, Ryles argues that the photographs used in the array were impermissibly suggestive because the appearances of the other individuals included were distinctively different from his own. According to Ryles, there were differences in hair style, facial hair, and complexion. He also contends that his photo in the array was the only one depicting an individual with a scar on his lip, low-cut hair, and a goatee extending past his chin. He emphasizes that the other photos included individuals with braided hair, mis-kept hair, no facial hair, bruising around the eye, a scar on the forehead, and either lighter or darker facial complexions. He argues that these differences make it all but inevitable that the complainant would mistakenly direct her attention to and identify Ryles simply because of the scar on his lip. The trial court, however, denied Ryles's motion to suppress the array, indicating that one other photo actually looked a lot like Ryles. The trial court also noted that, although the lighting was different, two individuals in the photo array had similar skin tones to Ryles. "While it might be better practice to use persons in a line-up whose every feature matches, neither due process nor common sense requires such procedure." Dickson v. State, 492 S.W.2d 267, 271 (Tex. Crim. App. 1973); see also Ward v. State, 474 S.W.2d 471, 476 (Tex. Crim. App. 1971). The use of photos with minor physical differences in an array is not an inherent violation of a defendant's due process rights and does not automatically make the array impermissibly suggestive. See Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App. 1984). Here, the photo array contained photos of six black males dressed in civilian clothing. There are no extreme distinctions in age or hair color. See Ward, 474 S.W.2d at 476 n.5 (explaining that because hair styles, like clothing styles, change rather rapidly, an impossible burden would be placed on police officers if they were required to use only photographs of persons with like hair styles). However, photos in an array that are grossly dissimilar in appearance to the suspect are unduly suggestive. United States v. Wade, 388 U.S. 218, 233 (1967). Thus, the Supreme Court has held a line-up procedure to be unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process under the following circumstances: the suspect was first placed in a line-up with much shorter men and no identification was made; a one-to-one confrontation was then arranged with the robbery victim who made a tentative identification; and the suspect was then placed in a second line-up (the only man to be in both line-ups), at which time the victim identified the suspect. Foster v. California, 394 U.S. 440, 441-42 (1969). The Court held that "[t]he suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify [the suspect] whether or not he was in fact 'the man.' In effect, the police repeatedly said to the witness, 'This is the man.'" Id. at 443. Here, at both the pretrial suppression hearing and trial, (2) Detective Almanza testified that he attempted to minimize Ryles's disfigurement by including photos of individuals with unusual faces. Ryles argues that because his photo was the only photo depicting a person with a scar on his lip, it was inevitable that Guzman would identify him. However, when Guzman was shown the first array, which also included only one picture of a man with a scar on his lip, she did not make an identification. Indeed, Guzman identified Ryles only after viewing the second array. Further, Guzman was not instructed to identify a photo in either array; she was only asked to take her time, and to make her selection only if she recognized anyone. She was never told that the suspect was in either array and did not know if more arrays would be shown. Moreover, in this case, the six-photo array contained all black males with varying disfigurements or unusual facial features. Thus, there was no gross dissimilarity causing the array to be unduly suggestive. Ryles also argues that the procedure of using a six-picture photo array is in itself suggestive and can create a substantial likelihood of misidentification. He asserts that the simultaneous presentation method, as opposed to sequential method, has been found to be less reliable by the United States Department of Justice guidelines for law enforcement and by a New York trial court. Ryles has failed to present any Texas authority mandating the sequential technique in photo arrays. Thus, we decline to impose such requirement. See Pacheco v. State, No. 04-06-00453-CR, 2007 WL 1059040, at *11 (Tex. App.-San Antonio, Apr. 11, 2007, pet. filed). Thus, in applying the first prong of our analysis, Ryles has failed to demonstrate that the array was impermissibly suggestive. And, even if we had found that the array was impermissibly suggestive, under the second prong of our analysis, the array did not give rise to a substantial likelihood of irreparable misidentification at trial. An impermissibly suggestive array does not give rise to a substantial likelihood of irreparable misidentification at trial where the witness sufficiently establishes the independent origin of her in-court identification. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Here, Guzman's testimony established that her in-court identification was independent from the photo array. Whether a substantial likelihood of misidentification occurred depends on "whether there was a distinct observation at the time of the event which, in light of the surrounding circumstances, can be considered credible enough to serve as an independent origin for the in-court identification." Limuel v. State, 568 S.W.2d 309, 313 (Tex. Crim. App. 1978). In assessing the reliability of a witness's in-court identification, we focus on five non-exclusive factors: (1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the prior description given by the witness; (4) the witness's level of certainty; and (5) the length of time between the event and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). In applying the above factors, we first note that according to Erica Guzman's testimony, she had ample opportunity to view Ryles during the robbery. Second, she paid close attention to him as he moved throughout the store and then later when he approached the counter, showed the gun, and demanded the money. Third, her description was very detailed. She told police that the suspect was a black male, approximately twenty-four years of age, 5'8", 160 pounds, had short hair, a goatee, was wearing a white T-shirt, blue jean pants, a big jacket, a red fisherman's hat, and had a very noticeable scar on his lip. Fourth, according to Guzman, she recognized Ryles because he was a customer, having been in the store two to three times before. Therefore, she was certain in her identification. Fifth, only sixteen days passed between the robbery and the second array presentation, during which Guzman identified Ryles without hesitation. Further, there is nothing in the record to support Ryles's contention that Guzman felt pressured to make an identification. Therefore, these factors indicate a reliable independent origin for Guzman's in-court identification. We, therefore, overrule Ryles's first issue. Improper Jury Argument In his second issue, Ryles argues that the trial court erred in overruling his objection to improper jury argument. Specifically, he complains of the following statements by the prosecutor during closing argument: Now the - when we are talking about the paperwork, and the time - and let me say one more thing about this photo line-up. If you believe that the defendant looks different than everybody else, or that for some reason it wasn't fair, the judge wouldn't have let you see this if it was a suggestive line-up. (3) (emphasis added). According to Ryles, the prosecutor's statements "implied to the jury that the question of identification, an element of the charge [that] the State must prove beyond a reasonable doubt, had already been solved by the judge." Permissible jury argument must encompass one of the following areas: summation of the evidence; reasonable deduction from the evidence; answers to opposing counsel's argument; or a plea for law enforcement. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Here, although the State concedes that the argument was improper as it does not fall within these four areas, it argues that the error was harmless. We agree. Improper jury argument is non-constitutional error. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Thus, we apply Texas Rule of Appellate Procedure 44.2(b): "Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). In considering whether a defendant's substantial rights have been affected by improper jury argument, we consider the following factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of the defendant's conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259. For an improper jury argument to rise to the level of warranting a reversal, the argument in light of the record must be "extreme or manifestly improper." Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Applying the first factor to the present case, the severity of the misconduct, we note that the misconduct was only moderately severe in that the improper argument was a small portion of the State's entire closing argument; indeed, it consisted of only three sentences. And, after the trial court overruled defense counsel's objection, the prosecutor moved on and did not repeat the improper argument again. Further, we disagree with Ryles that the prosecutor implied to the jury that the question of identification had already been resolved by the judge. The prosecutor told the jury that it would not have seen the array if it was impermissibly suggestive; the prosecutor did not state that the judge had determined that the witness had properly identified Ryles. With regard to the second factor, because the objection was overruled, the improper argument was not cured by a trial court instruction. And, according to Ryles, "the error was certainly not cured when the State added" the following statements later during its closing argument: There is - the last thing that I want to tell you about is the - I want you to think about this. You are to judge the credibility of the witnesses and make a decision on who you believe. That's your job right now. And you study the evidence when you are making this decision. But keep in mind the crime that was committed against Erica [Guzman]. And keep in mind that people are going to hear your verdict. If you find this defendant not guilty, you're going to make him bulletproof. And you're going to tell Erica - Defense: Objection, improper argument; prejudicial. Court: It's overruled. And you're going to tell Erica that you don't believe her. The defendant is going to hear your verdict. (emphasis added). These statements by the prosecutor, however, did not add to any harm suffered by Ryles. Instead, they were a plea for law enforcement. With regard to the third factor, there was substantial evidence to support Ryles's conviction. The videotape of the store robbery was entered in evidence. Guzman recognized Ryles as a previous customer and had time to observe him during the robbery. Thus, there is certainty that Ryles would be convicted absent the prosecutor's statements. Therefore, the statements by the prosecutor were harmless. Having found that the error was harmless, we overrule Ryles's second issue. Conclusion We affirm the judgment of the trial court. Karen Angelini, Justice DO NOT PUBLISH 1. According to Officer Miller, approximately a week before, robbery detectives had attended patrol officer roll call to put out a description of a robbery suspect and showed the video of the Radha Food Mart robbery to the patrol officers. 2. Generally, in reviewing a motion to suppress, we would only look to evidence presented at the pretrial hearing because the trial judge did not have the benefit of the testimony from trial when making his ruling. Barley, 906 S.W.2d at 31 n.2. However, when the error complained of is the admissibility of the evidence at trial and the issue was relitigated by the parties during trial, consideration of relevant trial testimony is appropriate. Webb v. State, 760 S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988); see also Barley, 906 S.W.2d at 31 n.2. Even though Ryles "relitigated" facts surrounding the pretrial identification procedure only in the context of trying to impugn the weight the jury should accord Guzman's identification of him at trial and was not attempting to retry the legal question of its admissibility, "[t]o hold that appellate review is limited to facts adduced at the pretrial hearing . . . could place the appellate court in the untenable position of having to reverse a conviction in the face of a record, which supports, albeit belatedly, the trial court's ruling." Webb, 760 S.W.2d at 272 n. 13. Therefore, "[i]n scrutinizing trial determinations of admissibility of identification testimony, [the Texas Court of Criminal Appeals] has not so limited its review." Id.; see also Barley v. State, 906 S.W.2d 27, 31 n.2 (Tex. Crim. App. 1995) (explaining that in an identification case, because "limiting review to the evidence adduced at the hearing could lead to an untenable result," the court of criminal appeals has "place[d] no limit on the review of identification admissibility"). 3. Defense counsel objected to this statement as improper argument, but the objection was overruled by the trial court.