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Potzner v. State2/10/1999
3988 NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
No. 3988
Appeal from the Superior Court, Third Judicial District, Anchorage, William H. Fuld, Judge.
Troy A. Potzner was charged with felony driving while intoxicated, failing to stop at the scene of an accident , and driving with a suspended or revoked license. The State alleged that Potzner, intoxicated and driving a maroon-colored Lincoln Continental, rear-ended another vehicle and then fled the scene on foot.
Potzner defended by asserting that he had not been the driver of the Lincoln. Potzner claimed that he had been drinking at a nearby bar at the time of the collision; he suggested that a friend of his had been driving the Lincoln. The State, however, presented one witness who identified Potzner as the driver of the Lincoln and several other witnesses who identified Potzner as being at the scene of the collision and then fleeing. Further, the State presented evidence that, when Potzner was arrested, the key to the Lincoln was found concealed in his shoe. The jury convicted Potzner on all three counts.
In this appeal, Potzner attacks the testimony of a mother and daughter who saw Potzner driving the Lincoln just before the collision and then saw him flee the scene. Potzner argues that these witnesses' identifications of him were impermissibly tainted by the suggestiveness of the identification procedure, and he therefore asserts that their testimony should be suppressed. (Potzner also argues that, because these two identifications led to his arrest, suppression of identifications should also result in suppression of the key found in his shoe following his arrest.)
For the reasons explained here, we conclude that the identification procedure was not unconstitutionally suggestive, and we therefore affirm Potzner's convictions.
In the late afternoon of November 23, 1996, Nancy Haley and her thirteen-year-old daughter, Marie, were driving down Arctic Boulevard in Anchorage. While waiting for a traffic light to change to green, Marie noticed something unusual about the car stopped beside them: even though the day was quite cold, the other car had its rear driver's side window rolled down. Marie looked at the driver of this other car (a man she later identified as Potzner), and then she made a remark to her mother about the window being down.
When the traffic light changed, the adjacent car sped ahead of the Haleys' vehicle, weaving in and out of its lane of travel. Nancy Haley remarked to her daughter that she was going to stay clear of that car. A short time later, the Haleys came upon the aftermath of a collision between this other car and a van that had stopped to make a turn. The Haleys watched the car pull into a gas station at the corner of Arctic Boulevard and International Airport Road.
Nancy Haley drove past the accident scene, then turned around and went back to see if anyone needed assistance. Both she and her daughter observed a man (whom they both later identified as Potzner) cross International Airport Road, go into a liquor store, then emerge from the liquor store and run away. Marie Haley identified this man as the same person she had seen driving the car. When the police arrived, the Haleys described the man to Officer Michelle Logan.
The police
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