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Potzner v. State2/10/1999
ted at the suppression hearing, the police did not tell Nancy and Marie Haley that they had arrested the driver of the Lincoln, nor did the police tell the Haleys that the man in custody was the same man the Haleys had seen running from the site of the collision. Rather, Officer Logan told Nancy Haley "that [they] ha somebody down ... at the Chevron [station]", and she asked Ms. Haley and her daughter to "come down and see if that's the same person you saw."
On these facts, the show-up identification procedure was not unnecessarily suggestive. Rather, as was true in Howe, this confrontation between two witnesses and a potential suspect occurred reasonably promptly after a serious crime was committed, and the confrontation was necessary so that the police might "still have time to pursue the real culprit, or to ensure proper identification when events are still vivid and fresh in the witness ' mind ".
Because we conclude that the identification procedure was not unnecessarily suggestive, we need not reach the second portion of the due process analysis: whether the identification, even though unnecessarily suggestive, was nevertheless reliable based on the totality of the circumstances. That being said, if we were to reach this second issue, we would conclude that the Haleys' identifications were reliable.
In assessing the reliability of a visual identification, the Alaska Supreme Court has followed the United States Supreme Court in setting forth five factors. These factors include: (1) the opportunity of the witness to see the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's description of the suspect; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.
In Potzner's case, Superior Court Judge pro tem William H. Fuld found that Marie Haley had ample opportunity in a well-lit intersection to view the person driving the car next to her mother's. Judge Fuld also found that both of the Haleys had a good opportunity to view the person who ran down and across the street near their car. We further note that, after the Haleys saw that a collision had occurred, the Haleys had an understandable interest in paying attention to the man they saw running from the scene.
The Haleys identified Potzner less than three hours later, a relatively short time after the collision. And both of the Haleys testified at the suppression hearing that they were certain of their identifications of Potzner on the day of the collision. Based on this record and on Judge Fuld's findings of fact, we conclude that the Haleys' identifications of Potzner were "reliable" for purposes of the due process test.
Potzner appears to attack the reliability of the Haleys' identifications based on certain potentially contradictory testimony at his trial regarding the color of his coat and the style of his hair. We do not think that these inconsistencies undermine Judge Fuld's Conclusion. Moreover, if Potzner believed that this trial testimony cast doubt on Judge Fuld's pre-trial decision, it was Potzner's duty to bring this evidence to Judge Fuld's attention and to request re-determination of the suppression issue.
The superior court properly denied Potzner's motion to suppress the identifications made by Nancy and Marie Haley.
Accordingly, the judgment of the superior court is AFFIRMED.
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