                                                                       FILED
                                                                   JANUARY 23, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 34350-2-III
                     Respondent,              )         (consolidated with
                                              )         No. 34351-1-III)
       v.                                     )
                                              )
DESHAWN DARNELLE GRAY,                        )
                                              )
                     Appellant.               )
                                              )         UNPUBLISHED OPINION
                                              )
STATE OF WASHINGTON,                          )
                                              )
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JOSE LUIS MIRANDA CANDIDO                     )
                                              )
                     Appellant.               )

       SIDDOWAY, J. — In these consolidated appeals, juveniles Deshawn Darnelle Gray

and Jose Luis Miranda Candido challenge their convictions for second degree robbery.

Both argue that the trial court erred when it (1) ruled on a suppression motion before

giving the defense a chance to present evidence, (2) ruled inconsistently on admissibility

of in-court identification evidence, and (3) denied a motion to suppress the victim’s out

of court identification. We find no error and affirm.
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


                     FACTS AND PROCEDURAL BACKGROUND

       On an evening in February 2016, following a Super Bowl party at Magdalena

Rodriguez’s brother’s home, her boyfriend, Cody Zeller, tried to walk her home. En

route, and around the time a group of people started crossing a street to the sidewalk

where she and Mr. Zeller were walking, Ms. Rodriguez fast-walked ahead to “split off”

from him. Report of Proceedings (RP)1 at 25. She later explained she was upset because

she didn’t want him to walk her home. As she distanced herself from Mr. Zeller and the

approaching group, she heard someone ask Mr. Zeller for a cigarette.

       What Mr. Zeller later estimated was a group of four to six people—two men; the

rest women—approached him and asked for a cigarette, then asked if he had marijuana,

and then asked him for a dollar, to which he repeatedly responded no. He reconsidered

the request for a dollar, however (“ha[ving] a feeling they knew that I had a wallet on

me”), and was about to hand one over when one of the men pulled out a handgun. RP at

69. Mr. Zeller was forced to give the man wielding the gun all the money in his wallet—

between $23 and $26, he testified at trial. At that point, everyone in the group except the

man who was unarmed ran off. The unarmed man tried unsuccessfully to take Mr.

Zeller’s wallet, and then ran off after the others.




       1
        References to the Report of Proceedings are to the volume of proceedings that
includes trial proceedings on April 1, 4, and 8, 2016.

                                               2
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


       When Mr. Zeller caught up with Ms. Rodriguez, she was on the phone with a 911

operator, having become concerned that something had happened to him. Mr. Zeller

described the people who robbed him as wearing all black and told Ms. Rodriguez he

believed the group was heading toward a nearby Hy’s Mini Mart convenience store,

information Ms. Rodriguez passed along to the 911 operator. She and Mr. Zeller then

hurried to the convenience store themselves. They did not find the people that robbed

Mr. Zeller, but remained at the convenience store to await the arrival of police officers at

the 911 operator’s request.

       Officer Casey Gillette was on duty when dispatch reported a robbery at gunpoint

in an area of Yakima that he patrolled. The report was that the suspects were male and

female, wearing all black. Driving through the area where the suspects were last seen,

the officer saw three people wearing all black walking down an alley. When he turned

into the alley and drove toward them, one of them sprinted off. The officer radioed other

officers that one suspect fled and was running east. He detained the other two

individuals, who turned out to be Deshawn Gray and J.L.2

       Officer Elias Huizar also responded to the report of the robbery and joined Officer

Gillette to assist with Mr. Gray and J.L. After both were handcuffed and placed in patrol


       2
        We use initials for the juvenile female detained that evening. See Gen. Order of
Division III, In re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses
(Wash. Ct. App. June 18, 2012), http://www.courts.wa.gov/appellate_trial_courts/.


                                             3
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


cars, Officer Huizar was standing by while other officers checked the area when he twice

saw a young man walking nearby who met Officer Gillette’s description of the man who

fled. When told to stop by Officer Huizar, the young man originally ran but later

returned. On returning, he complied as Officer Huizar detained him, although he mocked

police efforts to find him, calling the police “weak” and telling the officer he was caught

only because he “let [them].” RP at 201. The third man detained was determined to be

Jose Miranda Candido.

       Meanwhile, Officer Thomas Garza had arrived at the Hy’s convenience store and

questioned Mr. Zeller and Ms. Rodriguez. Upon receiving word that three suspects had

been detained, he took Mr. Zeller and Ms. Rodriguez to where they were being held and

conducted a showup. During the showup, Mr. Zeller and Ms. Rodriguez were in a patrol

car across the street from three patrol cars in each of which a suspect was seated.

Officers brought Mr. Gray out of a patrol car first, then J.L., and then Mr. Miranda

Candido. All three suspects were in handcuffs when presented to Mr. Zeller for

identification, and an officer illuminated each suspect with a spotlight. Officer Garza’s

in-car video and sound recording equipment, manufactured by COBAN Technologies3

was operating, recording Mr. Zeller and Ms. Rodriguez during the procedure.



       3
         References to COBAN were not explained in the record below, but the
company’s recording and related computer equipment is described in Fisher Broad.-
Seattle TV LLC v. City of Seattle, 180 Wn.2d 515, 518, 326 P.3d 688 (2014).

                                             4
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


       After Mr. Zeller identified the three—hesitantly, in the case of Mr. Gray; less so,

in the case of the two others—Mr. Gray and Mr. Miranda Candido were transported to

the juvenile detention center together, in the back seat of a patrol car under the same

video and audio surveillance. During the transport, both—but principally Mr. Miranda

Candido—made incriminating statements. When the two were searched on arrival at the

detention facility, a $20 bill was found in Mr. Gray’s shorts and three $1 bills were found

in Mr. Miranda Candido’s possession. Both were charged in juvenile court with second

degree robbery and felony harassment.

       At a pretrial conference on the date for the suppression hearing and possibly the

disposition hearing, the court and counsel discussed whether the hearings might be

conducted simultaneously, since both would be argued or tried to the bench. Only the

prosecutor expressed reservations. After hearing from the parties, the trial court ruled

that rather than hear the same testimony twice, it would combine the hearings. The

lawyers proceeded directly to opening statements and completed the combined hearing in

three days.

       During the State’s case, it called as witnesses Ms. Rodriguez; Mr. Zeller; Officers

Gillette, Huizar, Garza; and Officer Chad Thorn. When examining Mr. Zeller, the State

asked him if there was anyone in the courtroom that he remembered from the night of the

robbery. The questioning and Mr. Zeller’s answers drew objections from the defense and



                                             5
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


statements on the record by the court and counsel as to whether Mr. Zeller even looked at

the defendants in providing his answers.

       Following the close of the State’s evidence, the court heard argument of the

defense motions to suppress. After hearing from counsel, the trial court ruled that while

the out of court identifications were unnecessarily suggestive, there was no substantial

likelihood of irreparable misidentification that supported suppressing the evidence.

Turning to the defendants’ related argument that the showup procedure tainted Mr.

Zeller’s in-court identification of the defendants, the court announced that as far as it was

concerned, there “was no in-Court identification”—Mr. Zeller merely identified the

defendants as responsible “because they’re sitting in . . . Court.” RP at 363-64 (emphasis

added).

       At the conclusion of the disposition hearing, the court found the defendants guilty

of second degree robbery but not guilty of the felony harassment charges. It imposed a

standard range sentence of 15 to 36 weeks of confinement on both. Both appeal.

                                        ANALYSIS

       Mr. Miranda Candido’s first-filed brief makes three assignments of error. He first

contends that in combining the suppression and disposition hearings, the trial court ruled

on the suppression issue before permitting the defense to present evidence. Second, he

contends that the court erred by being inconsistent in its treatment of Mr. Zeller’s

answers to the prosecutor’s questions about whether he could identify anyone in the

                                              6
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


courtroom as a person who robbed him. Third, he assigns error to the trial court’s refusal

to suppress evidence of the out of court identification of the defendants.4

       Mr. Gray emphasizes the trial court’s asserted error in refusing to suppress

evidence of the out of court identification, but also adopts and incorporates Mr. Miranda

Candido’s other assignments of error.

       We address the asserted errors in the order presented by Mr. Miranda Candido.

                            I. Denial of right to present evidence

       Mr. Miranda Candido argues that by hearing argument and ruling on the

suppression motion at the end of the State’s case, the trial court “did not offer the

defen[dant] an opportunity to present evidence” despite knowing he bore the burden of

establishing an inadmissible eyewitness identification. Br. of Appellant Miranda

Candido at 6. The State responds that the most reasonable inference from the record is

that the defendants had no further evidence to offer and because no objection was made

in the trial court, we should refuse to consider this argument.

       We agree with the State. At the pretrial conference at which the court agreed to

combine the suppression and disposition hearings, only the prosecutor expressed

reservations—specifically, a concern that because the State bore the burden of proving

guilt while the defendants bore the burden of establishing a basis for suppression, the


       4
        His fourth assignment of error—that consideration of the identification evidence
was not harmless—is an issue, not an assignment of error.

                                              7
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


presentation and consideration of evidence could be “confusing.” RP at 6. It was Mr.

Gray’s lawyer who then proposed to proceed in a combined hearing in which the State

would take the lead, the defense would cross, and “leeway” would be given to the

defense when needed to present evidence in support of suppression. RP at 7. Mr. Gray’s

lawyer expressed “no doubt” that the trial court could keep accurate notes and “track of

things.” Id.

       Mr. Miranda Candido’s lawyer favored “whatever is the most efficient and

quickest way forward,” identifying demands on his schedule that could interfere if

proceedings took more than a couple of days. RP at 8-9. He, too, expressed “complete

faith in the Court to be able to distinguish between . . . the suppression issues and the

things that are supposed to be just for trial.” RP at 9.

       After the prosecutor replied, allowing that she could “see where [defense

counsel’s] coming from” and understood the “[efficiency]5 that we will all want to strive

for,” the trial court said it would hear both matters at the same time. RP at 9-10.

       Mr. Miranda Candido does not identify any time during presentation of the State’s

case that defense counsel’s attempt to cross-examine a witness about matters relevant to

suppression was shut down because it was beyond the scope of the State’s direct



       5
         The transcript says “sufficiency” but earlier discussion of “efficiency” leads us to
conclude that the prosecutor either misspoke or the statement was mistranscribed; the
trial court would reasonably have understood her to be referring to efficiency.

                                              8
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


examination. Neither defense lawyer objected when, following the closing of the State’s

case, the trial court said it would hear argument on the motion to suppress. Neither

defense lawyer requested the opportunity to call or recall any witness. Mr. Miranda

Candido does not attempt to argue that manifest constitutional error occurred.

         If there was error, it was not preserved. RAP 2.5(a). We will not review it.

                            II. Consideration of in-court identification

         Mr. Miranda Candido next argues that the trial court gave inconsistent treatment to

Mr. Zeller’s answers when asked by the prosecutor if he recognized anyone in the

courtroom as a person who robbed him. He argues that the trial court found the answers

were not an in-court identification as a reason to deny the motion to suppress, but then

found the answers were an in-court identification in support of its ultimate finding of

guilt.

         In explaining why it would deny the defendants’ suppression motions, the trial

court made the following statements about Mr. Zeller’s answers:

         [Q]uite frankly, Cody Zeller didn’t identify these two gentlemen in Court
         during the trial. He said the only reasonI mean I acknowledge what
         [defense counsel] was arguing when [the prosecutor] was asking him, he
         said, “Yeah, that those are the two that mugged me,” but [he] immediately,
         you know, concedes on, on cross examination that he identifies them as the
         responsible party (sic) because they’re sitting in, in Court. . . . [I]t kind of
         undercuts that somehow the out of Court identification has influenced the
         in-Court identification because there was no in-Court identification.




                                                9
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


RP at 363-64. In conclusions of law entered in support of its suppression ruling, the court

included a conclusion that “Cody Zeller did not identify either respondent in Court at

trial.” Clerk’s Papers (CP) (Miranda Candido) at 121; CP (Gray) at 83.

       Following the disposition hearing, the trial court entered 71 detailed findings in

support of its verdict in Mr. Miranda Candido’s case, essentially summarizing all of the

relevant evidence presented. Two of its findings address Mr. Zeller’s answers to the

prosecutor’s identification questions. Mr. Miranda Candido only identifies the first, but

the second is critical and reveals that the trial court consistently discounted Mr. Zeller’s

so-called in-court identification:

       1.52   At trial [Mr.] Zeller was asked if he had seen the two men who had
              robbed him since the February 7, 2016. He said no. Then [Mr.]
              Zeller gestured to the [Mr. Gray and Mr. Miranda Candido], and
              asked “Those two gentlemen? No.” When the prosecutor tried to
              clarify who [Mr.] Zeller was referring to when he stated “those two
              gentlemen,” [Mr.] Zeller responded, “The two people who mugged
              me?” He then identified [Mr.] Gray and [Mr.] Miranda-Candido as
              the two young men who had robbed him on February 7, 2016. He
              was unable to identify which one took the money and had the gun
              initially and which one attempted to take his wallet.

       1.53   On cross-examination, [Mr.] Zeller admitted that he only identified
              the two respondents because they were in the courtroom at the trial.
              And because they each had “black hair.”

CP (Miranda Candido) at 105. Identical findings were made in support of the verdict in

Mr. Gray’s case. CP (Gray) at 65 (Findings of Fact 1.53 and 1.54).




                                             10
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


       We find no inconsistency in the trial court’s treatment of Mr. Zeller’s answers.

The trial court consistently found that when testifying as a witness at trial, Mr. Zeller did

not identify Messrs. Miranda Candido and Gray as the men who robbed him. He

identified them, in court, only as the defendants at his trial.

                         III. Refusal to suppress showup identification

       Finally, Mr. Miranda Candido and Mr. Gray contend the trial court erred in

denying their motions to suppress the COBAN recording of Mr. Zeller’s identification of

the three suspects. An out of court identification violates due process if the police

procedure is “‘so [unnecessarily] suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.’” Perry v. New Hampshire, 565 U.S. 228,

238, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012) (alteration in original)6 (quoting Simmons

v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)); State v.

Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002) (quoting State v. Linares, 98 Wn. App.

397, 401, 989 P.2d 591 (1999)). The due process inquiry involves two steps: determining

if the identification was unnecessarily suggestive, and if it was, determining whether the



       6
        The United States Supreme Court, or at least Justice Ginsburg, has shown a
preference for “unnecessarily suggestive” rather than “impermissibly suggestive” in
recent decisions such as Perry. We, too, believe that “unnecessarily” better explains the
due process concern than does the circular “impermissibly.” As pointed out in Justice
Sotomayor’s dissent in Perry, the United States Supreme Court has used “unnecessarily,”
“impermissibly” and “unduly” interchangeably in describing when suggestiveness raises
a due process concern. 565 U.S. at 254 n.3 (Sotomayor, J., dissenting).

                                              11
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


suggestiveness created a substantial likelihood of irreparable misidentification. State v.

Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002).

       In ruling on the suppression motions, the trial court found the procedure unduly

suggestive for several reasons. The first was that before all three suspects were detained,

Officer Garza sought to reassure a badly-shaken Mr. Zeller by telling him that other

officers had set up a perimeter a few blocks away and were chasing some people.

Additionally, Mr. Zeller overheard radio traffic about suspects being captured and the

suspects, who were handcuffed, were presented by being pulled out of patrol cars,

illuminated by a spotlight. Mr. Miranda Candido and Mr. Gray challenge only the trial

court’s finding that the suggestiveness did not create a substantial likelihood of

irreparable misidentification.7

       We review a trial court’s denial of a motion to suppress by determining whether

substantial evidence supports its factual findings and, if so, whether the findings support

its conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).

Unchallenged findings are verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62

P.3d 489 (2003).

       At issue is whether the findings support the trial court’s conclusion that the

identifications were sufficiently reliable to be admitted for consideration by the trier of


       7
        The State argues that we can affirm on the basis that the trial court erred when it
found the procedure unnecessarily suggestive. We need not reach that issue.

                                             12
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


fact despite the suggestive procedure used. Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.

Ct. 375, 34 L. Ed. 2d 401 (1972). In making this determination, the effect of the

suggestive identification is weighed against factors indicating reliability, which include

(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the

witness’s degree of attention, (3) the accuracy of the witness’s prior description of the

criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time

between the crime and the confrontation. State v. Birch, 151 Wn. App. 504, 514, 213

P.3d 63 (2009). See also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L.

Ed. 2d 140 (1977).

       Mr. Miranda Candido does not assign error to any of the trial court’s findings of

fact entered in support of its suppression ruling, but argues they do not support its

conclusions. He emphasizes findings that Mr. Zeller “observed his alleged assailants in

the dark while his attention was focused on a gun, and was unable to provide any

description of any features other than the alleged assailants’ hairstyles.” Br. of Appellant

Miranda Candido at 2. Mr. Gray assigns error to three of the trial court’s findings in

support of its suppression ruling. We need consider only finding 1.31, since the other

two findings he challenges are not relevant to the reliability issue. Since Mr. Gray

assigned error to finding 1.31 but then failed to address it any further in his brief, we

deem the error assigned to that finding as abandoned. Seattle Sch. Dist. No. 1 v. State, 90

Wn.2d 476, 488, 585 P.2d 71 (1978).

                                              13
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


       Considering finding 1.31 and all of the unchallenged findings as verities, we

review whether they support the trial court’s conclusion that there was no basis to

suppress the out of court identification. Among the court’s findings in support of its

suppression ruling were the following:

       1.3    When Magdalena Rodriguez was reunited with Cody Zeller, her
              boyfriend, she gave the details he gave her to 911 operator. . . .
              Zeller . . . told Rodriguez that the individuals who robbed him were
              wearing black clothing, had black hair and were in their late teens to
              early/mid twenties. This description can be heard being relayed on
              the 911 call.
       ....
       1.5    . . . the description was updated and, based upon that updated
              description, Officer Gillette began searching the area for a group of
              males and females wearing all black.
       ....
       1.28   Officer Garza’s instructions to Cody Zeller were thorough. He spent
              time with Cody Zeller prior to the [showup], telling Zeller he wanted
              a yes or no, that he just wanted the truth and “not what you think I
              may want to hear,” and clarified that the person “I show you may or
              may not be the one.” Officer Garza allowed Rodriguez to stay in the
              back of the patrol car with Zeller for the [showup] but advised her
              that she was not to talk during the [showup] or attempt to influence
              the [showup] in any way.
       1.29   Cody Zeller had an opportunity to view both Deshawn Gray and
              Miranda-Candido at the time of the crime. The gun was held 3-5
              inches away from his person. The respondents were in close
              proximity to him. However, the robbery took place on a dark corner,
              there were no porch lights or street lights on to illuminate the area.
              The only light source came from passing cars. The respondents
              were wearing dark clothing. Zeller did provide a consistent
              description that both of the individuals who robbed him had dark
              hair and were wearing dark clothing, but could not describe features.


                                            14
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


      1.30   Throughout the robbery, Zeller had a gun pointed at him so his
             primary focus was the gun. Despite being focused on the gun, Zeller
             does remember that one of the males who robbed him had long dark
             hair, the other male had dark curly hair and both males were wearing
             dark clothing.
      1.31   Cody Zeller’s description of the suspects’ appearance is consistent
             with the appearance of Gray and Miranda-Candido. The Court
             reviewed Officer Garza’s COBAN, State’s exhibit 4. The accuracy
             can be found in the nature of the dark clothing and the nature of the
             dark hair of the respondents, and the fact that Zeller described one
             respondent has [sic] having dark curly hair which fits Gray and one
             with long dark hair which fits Miranda-Candido.
      1.32   Cody Zeller was presented with an opportunity to identify all three
             detained suspects approximately 40 minutes after the 911 call came
             in according to the COBAN time stamps from Officer Garza’s patrol
             car, State’s exhibit 4.
      1.32.1 When Zeller viewed the first suspect, Deshawn Gray, at 9:20 PM, he
             stated, “Looks like him, not sure. Yeah, not sure for sure. Don’t
             know. I remember the curly hair.” Zeller testified that he did not
             recognize Deshawn Gray and that he was “iffy” about his
             identification of Deshawn Gray.
      1.32.2 At 9:22 PM, Zeller viewed the second person, [J.L]. He told Officer
             Garza, “Yes, yeah, yes” indicating that she was one of the
             individuals he saw when he was being robbed. Officer Garza asked
             Zeller what she was doing during the robbery. Zeller responded by
             telling the officer that she was just sitting back there. He testified on
             the stand that she was standing off to the side while the situation was
             happening. But Zeller was very clear that he had seen her during the
             robbery and he knew what her role, or lack thereof, was in the
             robbery.
      1.32.3 Zeller is shown a third suspect, Jose Miranda-Candido, also at
             COBAN timestamp 9:22 PM. As soon as Zeller saw Miranda-
             Candido, Zeller stated, “Yeah, yeah, that’s him,” and then he
             physically slumped over and broke down. At 9:26 PM, Zeller and
             Rodriguez were alone in the patrol car together. On the COBAN,
             Rodriguez told Zeller, “He knew it was him because he looked
             away.” After further questioning regarding whether Miranda-

                                            15
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


              Candido was the person who had the gun in his possession last,
              Zeller tells Rodriguez, “I hope it’s him. He’s familiar. I hope it’s
              him.” Zeller testified on the stand that the third person he was asked
              to identify was a male and that Zeller knew right away that the third
              male was involved because when the spotlight was shone on him,
              the male looked away and that was a sign to Zeller that he was one
              of the males who had robbed him.
       ....
       1.33   In establishing the timeframe between the crime being committed
              and the [showup] being conducted, the Court reviewed Officer
              Garza’s COBAN, State’s exhibit 4, along with Officer Gillette’s
              testimony regarding the CAD log that dispatch generated. The 911
              call was answered by Magdalena Rodriguez at 8:36 PM. Officer
              Garza pulled into the Hy’s Market parking lot at 8:46 PM. Deshawn
              Gray and [J.L.] were detained at 8:49 PM. Jose Miranda-Candido
              was detained at 9:12 PM. Officer Garza’s COBAN showed that he
              pulled up for the [showup] at 9:20 PM. The [showup] was finished
              around 9:26 PM.

CP (Gray) at 74, 78-81. Identical findings were made in Mr. Miranda Candido’s case.

CP (Miranda Candido) at 112, 116-119.

       The trial court concluded that Officer Garza’s instructions to Mr. Zeller mitigated

some of its concerns about the suggestive nature of the showup identification. And as it

explained in its oral ruling on the suppression motions, it considered the standard for

excluding the evidence to be high, because even if not suppressed, the evidence

“proceeds forward to the trier of fact to weigh out in the trial itself.” RP at 356-57. In

other words, credibility and reliability determinations remained to be made; the trial

court’s task in ruling on the suppression motion was only to assess the substantiality of

the likelihood of “irreparable” misidentification.


                                             16
No. 34350-2-III (consolidated with No. 34351-1-III)
State v. Gray


       The trial court forthrightly entered findings of the indicators that weighed against

Mr. Zeller's ability to make an accurate identification as well as those that weighed in

favor. Overall, the findings that we treat as verities are sufficient to support the trial

court's conclusion that indicators of Mr. Zeller's ability to make an accurate

identification were not "' outweighed by the corrupting effect' of law enforcement

suggestion." Perry, 565 U.S. at 239 (quoting Brathwaite, 432 U.S. at 114). The

evidence was properly admitted to be weighed by the court as the trier of fact. See id.

                                    Appellate costs

       Mr. Gray asks us to waive costs on appeal should he not substantially prevail. We

accept the State's representation that it will not seek an award of appellate costs.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Fearing, C.J.                                  Law~nce-Berrey~ J.               {
                                                                                     j

                                              17
