                                                                       FILED
                                                                    AUGUST 20, 2019
                                                              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. 36647-2-III
                     Respondent,            )
                                            )
       v.                                   )         UNPUBLISHED OPINION
                                            )
TERRY LEE RUSSELL, JR.,                     )
                                            )
                     Appellant.             )

       FEARING, J. — Terry Russell appeals his conviction for residential burglary. He

contends a photomontage showed to a victim violated his due process rights. We

disagree and affirm his conviction. We remand for the striking of some legal financial

obligations.

                                        FACTS

       This prosecution arises from a burglary at the Pederson family Tacoma home on

February 1, 2016. Appellant Terry Russell denies he burglarized the home. We glean the

facts from trial testimony.
No. 36647-2-III
State v. Russell


          Terry Russell is a self-employed general contractor. He subcontracts for

restoration work with individual homeowners. In February 2016, Terry Russell

performed construction work at a Tacoma home on 51st Street. Russell insists that, on

Monday, February 1, 2016, the day of the crime, he was flattening the structure on 51st

Street.

          According to Terry Russell, before starting the 51st Street home job, he introduced

himself to neighbors and told them the window of time for the project. All neighbors

kindly received Russell except next door neighbor, Brandon Tally. Unbeknownst to

Terry Russell, Tally took surveillance pictures of him while Russell toiled at the 51st

Street home.

          Lindsey Pederson lived with her father, stepmother, and stepbrother on North Pine

Street in Tacoma, five miles from the 51st Street home where Terry Russell worked. On

February 1, 2016, at 11:40 a.m., Lindsey returned home after a weekend trip to Seattle.

Her father and stepmother were then at work and her stepbrother at school. The father,

Eric, locked all doors to the outside when he left for work that morning.

          After briefly parking at her residence, Lindsey Pederson drove to a nearby

convenience store, for snacks and a beverage, one or two minutes away. As she drove on

North Pine Street, Lindsey saw a Toyota van driving in the opposite direction. Due to the

road’s narrowness, the driver of the van pulled to the side to allow Lindsey to pass. As

she waved at the driver to express thanks, she observed a person in the passenger seat of

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State v. Russell


the van. After buying a drink and candy, Lindsey drove back to her residence.

       When Lindsey Pederson arrived home the second time, she noticed the same

Toyota van parked in her father’s parking spot to the residence’s right. Lindsey assumed

the van occupants were visiting neighbors. As she walked toward the house, she heard

the van’s engine running, but she did not look inside the vehicle. The front door to the

house was locked, and, as she peered through the door’s window, she saw a French door

at the back of the house ajar. Since her family does not leave the house unlocked,

Lindsey grew troubled. Lindsey unlocked the front door, went to the back French doors,

and saw shattered glass from one of the doors.

       After surveying the damage, Lindsey Pederson heard footsteps upstairs. Lindsey

uttered “hello” and heard quickened footsteps. She called “hello” again, but only heard

more footsteps. Report of Proceedings (RP) (Jan. 22, 2018) at 21. Lindsey, from fear,

exited the front door of her house. Before she reached the end of the front porch, a man

jumped from the residence’s roof and landed in front of her. The housebreaker had

removed a screen on Lindsey’s stepbrother’s window and climbed on the roof. The man

faced Lindsey and looked at her. He immediately bolted to the van. Lindsey noticed the

trespasser being of “average male height,” which she believes to be five foot eight inches.

RP (Jan. 22, 2018) at 23. The intruder wore mismatched gloves, a black beanie hat, dark

pants, and a dark or black sweatshirt. Despite a limited view due to the beanie, Lindsey

saw darker hair.

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State v. Russell


       The intruder climbed into the driver’s seat of the van and began his escape. The

man shifted the van in reverse and backed out of the driveway and down North Pine

Street. Lindsey Pederson took pictures of the van with her phone. The van lacked a

license plate. Due to glare on the van’s windshield, Lindsey could not photograph the

van’s occupants. Lindsey, however, observed a blond woman “scrunched” in the

passenger seat. The van crashed into a neighbor’s vehicle, before backing down the

street and leaving the neighborhood. Lindsey went to a neighbor’s house and called the

police and her father.

       Eric Pederson, Lindsey’s father, immediately returned home. Eric and Lindsey

entered the residence and surveyed the premises. The home breaker only disturbed the

second floor master bedroom. He had strewn belongings, including papers and jewelry

kept on Eric’s wife’s side table, onto the bed. The intruder also placed drawers taken

from dressers and their contents on the bed.

       While Lindsey and Eric Pederson awaited police, Lindsey posted a picture of the

van and the shattered French door to her Facebook page. In her post, Lindsey

commented about the need to jail the perpetrators and pledged not to allow them to

succeed in their crime.

       Tacoma Police Department Officer Rick Hutchinson journeyed to the Pederson

home. Officer Hutchinson interviewed Lindsey, obtained a description of the suspect,

and scrutinized the house. Lindsey described the suspect as a white male, age twenty to

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State v. Russell


twenty-five, with brown hair.

       On February 2, 2016, Brandon Tally contacted Lindsey Pederson on Facebook

regarding the burglary of the Pederson residence. Tally sent her a photo of Terry Russell

and asked if the person in the photo committed the burglary. Lindsey’s gut instinct told

her that the pictured person was the burglar. Lindsey looked at the picture “once or

twice” and “didn’t look at it for very long.” RP (Jan. 22, 2018) at 46. Brandon Tally

then gave her the name Terry Russell, a name unfamiliar to her.

       Also on February 2, 2016, Brandon Tally contacted Tacoma Police Detective

Christine Coulter regarding the intrusion at the Pederson home. Tally identified, for

Detective Coulter, “Terry Russell” as a potential suspect in the burglary, and he e-mailed

her pictures of the suspect. Tally also sent Detective Coulter photos of a Nissan Sentra

that he claimed to be associated with Terry Russell.

       On February 25, 2016, Detective Christine Coulter contacted Lindsey Pederson.

At the police station, Lindsey looked at a series of six photos of men to attempt to

identify the trespasser. All photographs were in color and of the same size, showing men

in the same front face format. Half of the men had facial hair. Detective Coulter did not

tell Lindsey that she included the photograph of Russell in the montage. The

photomontage contained an admonition, signed by Lindsey, which read:

              “You are about to view a group of photos for the purpose of
       identifying a suspect in a crime. The fact that the photographs are shown to
       you should not influence your judgment. This group of photographs may

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State v. Russell


       or may not include a photograph of the person who committed this crime.
       Therefore, you should not conclude or guess. You are not obligated to
       identify anyone. Keep in mind that a photograph may or may not depict the
       current appearance of the person who committed the crime since the people
       can change their appearance in numerous ways. Also photographs do not
       always show the true complexion of a person who could be lighter or
       darker than shown. Finally, please do not discuss this case with other
       witnesses, nor indicate in any way that you have or have not identified
       anyone.”

RP (Jan. 22, 2018) at 42-43; Ex. 12.

       After signing the admonition form, Lindsey Pederson viewed the six pictures

displayed in the photo mosaic. Lindsey concluded that all photographed men were in

their twenties, thirties, forties, and that they all looked similar in age. Lindsey first

excluded pictures three to six from consideration. Lindsey struggled between

photographs one and two. She tried to imagine the man in photograph two without his

mustache. She viewed the men in photos one and two as similar in that they both had

light eyes and similar color of hair. After viewing the photographs for less than one

minute, Lindsey identified the first picture as the individual who committed the burglary.

Terry Russell was pictured in the montage’s first photo. In a written statement to law

enforcement, Lindsey wrote: “I am 100% positive this is the same man whom landed in

front of me after attempting to rob me.” Ex. 12.

                                        PROCEDURE

       The State of Washington charged Terry Russell with one count of residential

burglary based on the February 1, 2016 intrusion into the Pederson abode. Before trial,

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State v. Russell


Russell moved the court to exclude from evidence, under ER 401 and ER 403, Lindsey

Pederson’s identification from the photo montage and any in-court identification. The

trial court denied Russell’s motion in limine.

       At trial, Terry Russell denied committing the burglary and denied being in the

Pederson neighborhood on February 1, 2016. Russell testified that he did not possess a

car and often relied on the homeowner of the house where he worked for transportation.

He averred that he did not receive a ride in a minivan in February 2016 and that a friend,

Anastasia, from whom he often gets rides, owns a Nissan Sentra, not a van. He also

testified that he might have received a ride, from Anastasia, from his father’s house to

work at the house in south Tacoma on February 1. Russell denied knowing the locale of

the Pederson home, denied ever having seen the Pedersons, and denied entering their

house. In addition, Russell denied dyeing his hair or changing his facial hair.

       During trial, Lindsey Pederson testified that she sought to keep an open mind

when viewing the law enforcement photomontage and to render her identification based

on observations at her home on February 1, not on the picture sent her by Brandon Tally.

She concluded that she would recognize the burglar if she ever faced him again. During

trial, Lindsey identified Terry Russell in court as the man who jumped from the roof of

the house.

       The jury found Terry Russell guilty of residential burglary. At sentencing, the

trial court imposed legal financial obligations consisting of a $500 crime victim penalty

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State v. Russell


assessment, a $100 DNA database fee, and a $200 criminal filing fee. The trial court

declared Russell indigent for purpose of this appeal.

                                 LAW AND ANALYSIS

       On appeal, Terry Russell assigns error to the trial court’s denial of his motion in

limine. He claims that Lindsey Pederson’s identification of him in the series of

photographs violated his due process rights because the identification resulted from an

impermissibly suggestive or tainted photomontage. He emphasizes that Pederson had

earlier viewed the picture sent to her by Brandon Tally, to which Tally identified the

pictured man as Terry Russell. Russell also, putting aside the photos sent by Tally to

Pederson, challenges the method by which law enforcement displayed the six

photographs to Pederson.

       We review a trial court’s decision on whether to admit an out-of-court

identification, including a photomontage, for abuse of discretion. State v. Kinard, 109

Wn. App. 428, 432, 36 P.3d 573 (2001). An out-of-court photographic identification

meets due process requirements if it is not so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification. Simmons v. United States,

390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Kinard, 109 Wn.

App. at 432-33.

       To determine whether a photo identification is so impermissibly suggestive that it

creates a substantial likelihood of irreparable misidentification, courts employ a two-step

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State v. Russell


test. State v. Kinard, 109 Wn. App. at 433. The accused must first show that the

identification procedure was suggestive. State v. Kinard, 109 Wn. App. at 433. If the

defendant cannot show that the identification procedure is suggestive, the inquiry ends.

State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999). A suggestive identification

procedure unduly calls attention to a particular photo. State v. Linares, 98 Wn. App. at

403. If the defendant carries this burden, the court must then determine whether,

considering the totality of the circumstances, the suggestiveness created a substantial

likelihood of irreparable misidentification. State v. Linares, 98 Wn. App. at 401.

Traditionally, courts consider:

               (1) the opportunity of the witness to view the [suspect] at the time
       [of the crime]; (2) the witness’s degree of attention; (3) the accuracy of the
       witness’s prior description . . . ; (4) the level of certainty demonstrated at
       the confrontation; and (5) the time between the [offense] and the
       confrontation.

State v. Barker, 103 Wn. App. 893, 905, 14 P.3d 863 (2000).

       Due process principles regarding suggestive photograph identifications have no

application to pretrial photographic identification procedures engaged in by private

citizens. State v. Knight, 46 Wn. App. 57, 59, 729 P.2d 645 (1986). This rule is

premised on the principle that evidence obtained by a private citizen using illegal means

will be suppressed only when the State in some manner instigated, encouraged,

counseled, directed, or controlled the conduct. State v. Knight, 46 Wn. App. at 59-60.



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No. 36647-2-III
State v. Russell


       We readily dismiss Terry Russell’s contention that the photograph and message

sent by Brandon Tally violated Russell’s due process rights by tainting the later

identification during the law enforcement photomontage. The law does not impute

Tally’s conduct to the State. One might conclude that, in concern of fairness for the

accused, a court may consider the impact that photographs displayed by a private citizen

to a victim might have on a victim that later views pictures at the request of law

enforcement. State v. Knight suggests otherwise. Nevertheless, even if we considered

the combination of Brandon Tally’s photograph and the photo mosaic shown by law

enforcement, we would still conclude that the procedure was not overly suggestive.

       Terry Russell acknowledges State v. Knight, but argues that Knight leaves the

ability to challenge the photomontage by itself. We agree and also analyze the

methodology employed solely by law enforcement.

       Courts have found out-of-court identifications to be impermissibly suggestive

when the defendant is the sole possible choice given the witness’s earlier description.

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

differences in the photos are not suggestive enough to warrant further inquiry into the

likelihood of misidentification. State v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109

(1999). Courts also consider (1) whether the police displayed only the picture of a single

individual who generally resembles the person the witness saw, (2) whether one picture is

emphasized, and (3) whether the police indicated to the witness that they have other

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State v. Russell


evidence that one of the persons pictured committed the crime. Simmons v. United

States, 390 U.S. at 383-84 (1968).

       Terry Russell argues that the photomontage presented by law enforcement to

Lindsey Pederson was not reliable because Lindsey saw the picture of Russell sent by

Brandon Tally soon after the burglary. Nevertheless, Russell makes no argument as to

how the photomontage itself, displayed by Detective Christine Coulter to Lindsey, is

impermissibly suggestive.

       Law enforcement showed Lindsey Pederson six photographs. Police did not

suggest to Pederson that the photographs were in any order. Differences between the

men in the six photographs were minimal. Lindsey Pederson thought them to be the

same age. She particularly struggled between photographs one and two, who had light

eyes and the same color of hair. Law enforcement never suggested to Pederson that any

other evidence connected Terry Russell or the man pictured in photograph one to the

burglary. No officer told Pederson that the burglar’s photograph was in the montage.

       Assuming we consider the earlier photo sent by Brandon Tally, Lindsey Pederson

still carefully reviewed six photographs. She knew she could have concluded that none

of the photographs fit her home trespasser.

       We conclude that the photomontage was not impermissibly suggestive. Therefore,

we do not reach step two of the two-step test, whether, considering the totality of the

circumstances, the suggestiveness created a substantial likelihood of irreparable

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misidentification. The trial court did not abuse its discretion in admitting the

photomontage, and, therefore, this court should affirm Russell’s conviction for the crime

of residential burglary.

                                Legal Financial Obligations

       The trial court assessed legal financial obligations at sentencing of a $500 victim

penalty assessment fee, a $200 criminal filing fee, and a $100 DNA fee. Although

mandatory when imposed, the criminal filing fee and DNA fee are no longer mandatory

under new legislation as explained in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714

(2018). The DNA fee is mandatory if the offender has yet to have his DNA collected by

the State.

       Pursuant to Ramirez, we remand for the trial court to strike the DNA collection

fee, assuming Terry Russell has prior convictions, and the criminal filing fee. Russell

need not be present at any hearing to strike the financial obligations.

                                      CONCLUSION

       We affirm Terry Russell’s conviction of burglary. We remand for the striking of

some of the legal financial obligations.




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       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:




Pennell, J.




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