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People v. Leung4/9/1992
obbery of the Miyake Restaurant in Palo Alto. Ten days after the robbery he conducted a photographic identification at the police station. Officer Buck contacted Mr. Yukio Iwamoto, the owner of the restaurant which had been robbed, and asked him to bring the four eyewitnesses, Iwamoto's employees,
to the police station to view a lineup of weapons. Buck did not advise Iwamoto or the witnesses in advance that there would be a photographic identification. Iwamoto brought the four employees, Akiro Nakamura, Kikuo and Hiroshi and Moriyuki Nagayama, to the police station.
The witnesses were taken into a holding area for the photographic identification. Andrew Liu, a former employee of the restaurant, had already been arrested in connection with the robbery. Liu had provided the police with the names of four persons he claimed were with him on the night of the robbery. Buck obtained photographs of these four individuals and one "filler" photo from the San Francisco police. He tried to find additional "filler" photographs of nonsuspect Asians but didn't obtain any. He also took a photo of Liu and placed it with the other photographs. The photographs accumulated by Buck depicted six Asian males who appeared to be approximately twenty years old with straight black hair, broad noses, small eyes and similar skin tone. Overall the individuals pictured were of substantially similar appearance.
Buck had the witnesses sit on a bench along one wall of the room. He placed the photographs flat atop a small four-foot high cabinet. One at a time, he asked the witnesses to approach the cabinet to view the photo lineup. Iwamoto acted as translator for the witnesses since they did not speak English. Through Iwamoto, Buck asked each of the four witnesses to view the photographs and point out to him any photo the witness recognized. While each witness was viewing the photo array, the other witnesses remained seated on a bench approximately eight feet away from the cabinet upon which the photo array lay.
Buck observed that each witness placed his hand on the photos so that the area below the photographed subject's nose was obscured. Iwamoto would tell Buck that the witness recognized a particular photo and the witness would point to the photo. Each witness identified at least one photo. Buck failed to document which photos were identified by which witnesses or how many photographs were identified by each witness. Iwamoto told Buck that the four witnesses had collectively recognized five of the photos. The entire procedure took approximately three to five minutes. The witnesses were separately shown several weapons and a leather jacket for identification purposes.
b. Other Testimony
Iwamoto accompanied his four employees to the police station on January 10, 1990. He was not told that anyone had been arrested in connection with
the robbery or that the witnesses would be shown any photographs. Neither Iwamoto nor the witnesses knew that Liu had been arrested. The first thing that happened at the police station was that the witnesses were shown a group of photos. Buck placed some photos on top of a cabinet. Buck requested that Iwamoto ask each witness if he had ever seen the people in the photos. The witnesses were asked if they remembered having seen anyone in the photos before. Buck did not say that any of the people in the photos had been involved in the robbery nor did he mention Liu. While each witness was viewing the photos, the rest of witnesses sat on a bench about 13 feet away. The witnesses did not speak with one another while they were in the room viewing the photos. After viewing the photos, the witnesses viewed some weapons and clothing.
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