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iN 'THE COURT OF APPEALS FOR THE STATE OF WASHiNGTON

STATE OF VVASH|NGTON,
No. 76572-8-|
Respondent,
v. DEV|SION ONE
RAUL CORTES-MENDEZ, UNPUBL|SHED OPiN|ON
Appeliant. F|J_ED: I\iovember 13, 2018

 

 

!_EACH, .i. -- Rau! Cortes~l\/iendez appeals his conviction for attempting to
elude a pursuing police vehicle He claims that his trial counsel provided
ineffective representation by failing to object to an officer’s out-of-court and tater
in-court identifications Because he does not show that the triai court would liker
have granted a request to suppress this evidence, his claim fai|s. We aftirrn.

BACKGROUND

Officer Nathan l_emberg has Worked for the Seatt|e Po|ice Departrnent
(SPD) for more than eight years. On the evening of February 16, 2016, he was
“proactively poiicing” the Aurora corridor in a marked police vehicle He pulled
into the Jack in the Box parking lot on the northeast corner of North 85th and
Aurora. As he drove into the lot from the east, toward a set of parking places

along the facing wall of the Jack in the Box, he noticed a man standing next to a

NO. 76572-8-| l 2

i=ord Taurus, looking at the person in the passenger’s seat. This man walked
away after spotting Lernberg’s car. One concern for police along the Aurora
corridor is illegal drug activity. Lemberg thought he might have interrupted a drug
transactionl But without more information, he did not believe that he had
sufficient cause to detain anyone

Aithough the interior of the Taurus was dark, Lemberg could see a man in
the driver's seat and a woman in the passenger’s seat. l-ie drove toward the
Taurus, nearly perpendiculariy, with the intent of seeing its license piate number.
He initially could not see into the Taurus clearly but as he approached within five
to seven feet, his headlights lighted its interior. Lemberg made eye contact with
the driver and got “a very good look at the occupants.” i-le testified during trial a
year later that he noticed the driver's eyes Were brown.

After observing the occupants1 Lemberg turned his car so he could back
into the space next to the Taurus. Lemberg did not describe the suspect to
dispatch, take notes ct his observations or turn his video camera to face the
occupants of the car. instead, he immediately conducted a computer search
based on the license number he observed The search revealed that the Taurus
had been sold but titie had not been transferred Failure to transfer title within 45
days of sale is a crime1 Lemberg aiso noticed that the Taurus did not have a

temporary trip permit that Wou|d excuse the failure to register. V\ihile the police

 

1 Rcvv 46.12.650(7).

NO. 76572~8-! / 3

vehicie and the Taurus were still parked next to each other, the driver of the
Taurus was iiluminated by the ambient light in the parking lot.

About 30 seconds after Lernberg parked, white the results Were stiil
coming in on the license search, the driver of the Taurus puiiecl out of his parking
space. l_emberg did not get a cioser took at the driver as the Taurus was pulling
out. l-le followed the Taurus for about ten blocks When the license piate search
returned the information about the faiiure to transfer title, he decided to stop the
Taurus. l-le was directly behind it and turned on his overhead lights The Taurus
stowed to iet the car in front of it turn rightl immediately afterward, it changed
ianes, acceierated, and drove through a red light at the intersection of Third
Avenue l\iW and NVV 85th Street. The Taurus then continued quickly west on
NW 85th Street.

l_emberg turned on his siren and foilowed the Taurus through the red light
but decided to end his pursuit out ot concern for the danger to the public at
targe.2 l-le pulled over and iearned from the dispatcher that Cortes»l\/iendez had
purchased the vehlc|e. Within 15 minutes of ending pursuit1 Lemberg searched
Cortes-il/lendez’s narne and retrieved a booking photograph that matched his
memory of the driver. He wrote a report that evening but did not include a
detailed description of his observations before the records search as he had

identified Cortes~l\/lendez based upon the booking photograph

 

2 This is SPD policy Officers terminate pursuit when threats to public
safety of a chase outweigh the magnitude of the offense for which the pursuit is
enacted

NO. 76572-8-i / 4

At triall the defense asked the court to exclude any reference to the
booking photograph The State agreed not to offer the booking photograph and
offered instead a state-issued identification card. Cortes-lvlendez objected,
initiain on the basis of hearsay and later on the basis of relevancy because the
officer did not view the identification card to determine the identity of the driver.
The court allowed the State to ask the officer how he located the photograph
without identifying its source The court aiso admitted the identification card as a
business record but pointed out that counsel could question Lemberg about his
use, if any, of the card to identify Cortes-lVlendez.

During trial, Lernberg identified Cortes-i\/lendez as the driver. tie testified
that on the night in question he viewed a photograph of the purchaser of the
vehicle and it matched the man he saw driving the `i`aurus and the defendantx
l-le did not describe the photograph he viewed as a booking photograph He also
identified the person in the identification card photograph as the driver but stated
that he did not use the card for his initial out-of~court identification The jury
found Cortes~l\/lendez guilty of attempting to elude a pursing police vehicle. He
appeals

ANALYSES
We review ciaims of ineffective assistance of counsei de novo.3 To

succeed on a claim of ineffective assistance of counsel, the appellant must

 

3 State v. Feeiy, 192 VVn. App. 751, 768, 368 P.3d 5141 review denied,
185 Wn.2d 1042 (2016).

NO. 76572-8-| l 5

establish that the trial attorneys performed below an objective standard of
reasonableness and that this failure resulted in prejudice4 'ihis court starts with
a strong presumption that trial counsel provided effective representation.5 The
appeliant may rebut this presumption only with a clear showing of
incompetence6

Coites-ivlendez does not meet his burden l~le does not show that the in-
court and out»of~court identification evidence gave rise to a substantial iikelihood
of irreparable n'iisidentiiicationl So he cannot show that the trial court likely
would have granted a request to suppress this identification evidence As a
result, his ineffective assistance claim also fails.
identification Evidence

Cortes-Niendez claims that Lemberg’s out-of-court identification procedure
violated his right to due process and the triai court should have suppressed any
evidence arising from it. But he does not show that i_emberg’s identification of
him gave rise to a substantiai likelihood ot irreparable misidentification

An out-of-court identification that is “‘so impermissibly suggestive as to
give rise to a substantial likelihood of irreparable misidentification’" violates due

process7 To estabiish a due process violation, a defendant first must establish

 

4 Stricl<land v. Washinqton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).

5 State v. NlcFarland, 327 Wn.2d 322, 335, 899 P.Zd. 1251 (1995).

6 State v. Varga, 15t Wn.2d 179, 199, 86 P.3d 139 (2094).

7 State v. Vickers, i48 Wn.2d 91, 118, 59 P.3d 58 (2002) (quoting State v.
L.inares, 98 Wn. App. 397, 401, 989 P.2d 591 (‘i999)).

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No. 76572-8~l l 6

that the identification procedure Was impermissively suggestive.8 Single
photograph identification procedures can raise due process concerns9 if a
defendant shows an identification was impermissively suggestive then he aiso
must show this procedure created a “substantial |ikeiihood ot irreparable
misidentification.”i° Because Cortes-l\/iendez fails to show that Lernberg’s
identifications met this second prong, we need not evaluate the first prong of the
analysis

Courts measure the likelihood of irreparabie misidentification by looking at
the totality ot the circumstances to see if the identification demonstrated
“sufficient aspects of reliability.”i1 Reliability “is the linchpin in determining the
admissibility of identification testimony.”12

ln l\/lanson v. Brathwaite,13 the United States Supreme Court considered
the admissibility of an out-of-court single-photograph identification by a law
enforcement officer of an individual he encountered earlier. The State conceded
that the officers single photograph identification of Brathwaite was impermissibly
suggestive The Court did not find this concession dispositive of the due process

issue. lnstead, the Court evaluated the totality of the circumstances to determine

 

8 State v. i<inard, i09 V\ln. App. 428, 433, 36 P.3d 573 (2001).

9 Linares, 98 Wn. App. at 403; Simmons v. United States, 390 U.S. 377,
383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

iii Vici<ers, 148 Wn.2d at 118.

11 lVlanson v. l?irathwaite1 432 U.S. 981 106, 97 S. Ct. 2243, 53 L. Ed. 2d
140 (i977).

12 Brathwaite, 432 U.S. at 114.
13 432 U.S. 98, 101,97 S. Ct. 2243, 53 l_. Ed. 2d 149 (1977).

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NO. 76572-8-| l 7

whether the identification was reliabie.14 Because the Court found that the
identification was reiiable, it did not give rise to a substantial iikelihood of
irreparable misidentification.l5 The due process ciaim failed

The Brathwaite Court evaluated these factors to determine reliability: “the
opportunity of the witness to view the criminai at the time of the crime, the
witness' degree of attentionl the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation and the time between the
crime and the confrontation."16 Against these factors, a court must weigh the
corrupting effect of the suggestive identification itself17 Aspects indicative of the
corruption of a suggestive identification include “urgency {and] coercive pressure
to make an identification arising frorn the presence of another."18 in contrast,
“circumstances allowing [for] care and reflection" and the chance to examine the
photograph at one’s “leisure” reduce the suggestive impact of the procedure19

Our review of the totality cf the circumstances using all but one of the
factors examined by the Brathwaite Court, shows that Lemberg’s identification
was reliable and not substantialiy likely to result in irreparable misidentification
Lemberg did not take notes or describe the suspect to dispatch before receiving

information connecting Cortes-l\/lendez to the car. So we cannot compare the

 

14 Brathwaite, 432 U.S. at 114-16 (using the factors identified in Neii v_
Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), to
determine reliability).

15 Brathwaite, 432 U.S. at 116.

15 Brathwaite, 432 U.S. at ‘i'l4.

" Brathwaite, 432 U.S. at 'l‘l4.

13 Brathwaite, 432 U.S. at 116.

19 Brathwaite, 432 U.S. at 116.

NO. 76572-8-i l 8

“accuracy cf the description” made by i_emberg after the initial encounter to the
booking photograph.20 We must exclude this factor from our analysisl The
remaining factors weigh in favor of the identifications reliability.

Lemberg had a moderate opportunity to view the driver in the parking lot.
He encountered the Taurus at night With transient |ight. At one point, he saw the
suspect illuminated by his headlights from about five to seven feet away. l-ie
made eye contact with the driver and spent another 20 to 30 seconds parked
next to the car, in view of the driver, before the Taurus pulled away. While less
favorable than in Brathwaite, where the encounter was in tate daylight,21 the
conditions here were more favorable than in State vi Ramires.22 Therel the court
found reliable the officer’s identification of the defendant based on viewing a
suspect at night through a window from a position near the rear tire on the
driver’s side of the car.23

Lemberg’s degree of attention when making the identification weighs
heavily in favor of reliabiiity. A trained ofhcer on duty brings a particularly high
degree of attention to making observations of potential suspects.24 Lemberg was
on duty when he encountered the suspect He was a trained police officer with

more than eight years of experience25 He was also suspicious of the activity in

 

20 Brathwaite, 432 U.S. at 115 (listing factor three as “the accuracy of the
description” made by the witness after the encounter).

21 Brathwaite, 432 U.S. at 114.

22 109 Wn. App. 749, 754-57, 762-63, 37 P.3d 343 (2002).

23 Ramires, 109 VVn. App. at 754

24 Brathwaite, 432 U.S. at 115.

25 W Brathwaite, 432 U.S. at 115 (indicating that police officers’ training
raises their attentiveness as witnesses).

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NO. 76572-8-l l 9

and around the Taurus An officers heightened suspicion supports increased
attention to detail 26 Officer Lemberg displayed a high level of certainty, stating
that he obtained a “very good look" at the suspect and that he recognized Cortes-
Mendez as the driver when he viewed the booking photograph He also
displayed confidence during his in-court identification

The very short time between when Lemberg encountered the suspect and
when he identified Cortes-l\/lendez from the booking photograph supports
reliability Courts have considered elapsed times of one and two days to be
reliab|e.27 l-lere, only about 30 minutes to an hour elapsed Lemberg was in the
parking lot adjacent to the Taurus for 20 to 30 seconds He then pursued the
Taurus for about 13 blocks Fifteen minutes after ending pursuit, he found the
photograph

The identification was also not affected by any corrupting influences that
would make it unreliable Because Lemberg ended the chase, he was in no rush
to complete the identification He was not feeling coerced by other officers since
he Was aione when he identified Cortes-Nlendez in the booking photograph
Lemberg behaved the way a trained officer should in this situation Rather than
attempting to bolster a predetermined conclusion, he searched for the correct

answer by conducting a systematic investigation of a suspicious circumstance

 

26 §_e___e_ Ramires, 109 Wn. App. at 762 (discussing the impact of suspicion
on heightened attention to detail).

27 Seel e.g., Brathwaite 432 U.S. at 115-16; Rarnires, 109 Wn. App. at

 

762.

NO. 76572-8-| / 10

Because Lemberg’s identification of Cortes»l\/lendez based on the booking
photograph and his memory of the encounter is reliable it did not risk a
substantial likelihood of irreparable misidentification and therefore did not violate
due process So Cortes-ll/lendez fails to establish that the trial court would have
been likely to grant a motion to suppress evidence flowing from this initial out-of-
court identification
Assistance of Counsel

A criminal defendant has a constitutional right to effective assistance of
oounsel.28 The burden is on the convicted defendant to “show that (‘i) ‘counsel's
representation fell beiow an objective standard of reasonableness and (2) ‘the
deficient performance prejudiced the defense.’"29 An appellant must prove both
prongs to establish ineffective assistance30

Cortes~l\/lendez asserts he suffered ineffective assistance of counsel at
trial because his attorneys did not move to suppress i_emberg's out-of-court and
in-court identification l-lowever1 since he fails to show that the trial court woqu
likely have granted a motion to suppress, Cortes-Nlendez aiso fails to establish
that his attorneys performance prejudiced him.

if an appellant fails to establish either prong of an ineffective assistance of

counsel claim, that claim fails 80 Cortes-l\/lendez’s claim fails

 

23 |n re Pers. Restraint of Khan, 184 Wn.2d 679, 688, 363 P.3d 577
(2015).

29 ln re Pers. Restraint of Yates, 177 Wn.2d i, 35, 296 P.3d 872 (2013)
(quoting Strickland, 466 U.S. at 687-88); Khan, 184 Wn.2d at 688; McFarland,
127 Wn.2d at 334-35.

39 Feely, 192 Wn. App. at 769_

_10_

NO. 76572-8-1 l 11

CONCLUSON
We find that Cortes-lVlendez failed to demonstrate ineffective assistance of
counsel l-le failed to show that a court would likely have granted a motion to
suppress the out-of-court and in~court identification evidence because he did not
establish that the identification procedure violated his due process right We

affirm.

M/
/

WE CONCUR:
c/i'v\d/w.<u{ 3 , V/Mvéi{gl/,

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