       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                                No. 73413-0-1
                    Respondent,          )      (consolidated with 73592-6-1)

             v.                          )      DIVISION ONE                    ^             J&
ABDIHAKIM A. MOHAMED,
                                                                                C3            c£
                                                                                    TV?           .•?,
                    Defendant,           )

ALIABDIALIandABDISHAKURI.                )      UNPUBLISHED OPINION                  ri "f
                                                                                      CD                 •;
IBRAHIM, and each of them,               )
                                                                                      O?
                                                                                          c   ;

                    Appellants.          ]      FILED: September 26, 2016


      Becker, J. — A show-up identification procedure was not unnecessarily

suggestive when an officer told a car robbery victim that they were going to

possibly identify suspects who were in his car when it was stopped. When one of

the defendants was removed from the courtroom for disruptive behavior, the trial

court adequately informed him that he would be allowed to return upon

assurance that his conduct would improve.

      We affirm.

                                     FACTS

       Michael Harris was in downtown Seattle offering people rides in his car for

money on an October evening in 2014. He agreed to drive three men to Tukwila.
No. 73413-0-1


When the men got out of the car, one of them pulled a gun, held it to Harris's

head and told him not to move. All three men got into Harris's car and drove off.

       Harris called the police. Within about an hour, officers stopped Harris's

car with three men inside. Harris was brought to the location, where he positively

identified all three suspects as being involved in the car robbery. The State

charged all three men with first degree robbery. A jury convicted them as

charged. Two—appellants Abdishakur Ibrahim and Ali AN—have appealed.

Their appeals have been consolidated.

                   SHOW-UP IDENTIFICATION PROCEDURE

       Both appellants moved to suppress the identification evidence on the

basis that the show-up identification procedure was unduly suggestive. At the

suppression hearing, the witness was Deputy Jose Bartolo, the responding

officer who was with Harris when a broadcast came over his police radio that

officers had stopped Harris's car. Bartolo testified that he told Harris that his car

"was being stopped at a certain location. And that we'd be going to that location"

to possibly identify three subjects who "were in the vehicle."

       A number of police vehicles were present with their flashers on when

Bartolo and Harris arrived. Bartolo parked with his car's lights directed towards

Harris's car. He turned his spotlight on. Each of the three suspects, handcuffed,

was brought separately to this lit area, within about two car lengths of Bartolo's

car. Bartolo testified that Harris identified them as the three men who rode with

him to Tukwila and robbed him.
No. 73413-0-1


      The trial court entered findings of fact and conclusions of law and denied

the motion to suppress. We review a trial court's findings of fact on a motion to

suppress to determine whether they are supported by substantial evidence.

State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). Here, no error is

assigned to the findings of fact, so they are verities on appeal. Lew, 156 Wn.2d

at 733. We review conclusions of law pertaining to suppression of evidence de

novo. Lew, 156Wn.2d at 733.

      A defendant asserting that a police identification procedure denied him

due process must show that the procedure was unnecessarily suggestive.

Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). If the

defendant makes this showing, the court reviews the totality of the circumstances

to determine whether the suggestiveness created a substantial likelihood of

irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct.

2243, 53 L. Ed. 2d 140(1977).

      A showup is not unnecessarily suggestive just because the suspects were

handcuffed and standing near a police car. See State v. Fortun-Cebada, 158

Wn. App. 158, 170, 241 P.3d 800 (2010) ("By itself, the presence of a suspect in

handcuffs is not enough to show the show-up procedure was unduly

suggestive."); State v. Shea, 85 Wn. App. 56, 60, 930 P.2d 1232 (1997) (same);

State v. Guzman-Cuellar. 47 Wn. App. 326, 336, 734 P.2d 996 (1987) ("The

thrust of Guzman's argument is that he was handcuffed and standing

approximately 15 feet from the police car during the showup. These facts alone
No. 73413-0-1


are insufficient to demonstrate unnecessary suggestiveness"), review denied,

108Wn.2d 1027(1987).

       Appellants argue that what made the showup unduly suggestive in this

case was the fact that Harris learned from Bartolo and maybe also from the

police broadcast that he was going to be taken to the scene where his car was

stopped to possibly identify three individuals. They cite State v. McDonald, 40

Wn. App. 743, 744, 700 P.2d 327 (1985). In McDonald, the victim failed to

identify the defendant, number 3, in a lineup. After the lineup, a detective told the

victim that the subjects arrested following his robbery were numbers 3 and 5 in

the lineup. McDonald, 40 Wn. App. at 744. At trial, the victim was allowed to

make an in-court identification of the defendant. This court found the detective's

statement to be impermissibly suggestive: "He literally told [the victim], 'This is

the man." McDonald, 40 Wn. App. at 746. The facts here are not comparable.

Bartolo merely told Harris they were going to "possibly identify" three men who

were in his car when it was stopped.

       Appellants also argue that the use of Bartolo's spotlight and the "unusual"

number of police made the showup unnecessarily suggestive. We disagree. As

the trial court said in response to the spotlight argument, "I know that the

spotlight was used, which would make sense considering it's 11:00 p.m. at night.

And if a spotlight hadn't been used, if lighting hadn't been used, that would be the

argument in front of me. That there was insufficient lighting." And appellants cite

nothing in the record indicating that an "unusual" number of police were present.
No. 73413-0-1



       The trial court did not err in its conclusion that defendants failed to meet

their burden to demonstrate that the show-up procedure was unnecessarily

suggestive. Therefore, we need not proceed to the second step of reviewing the

totality of the circumstances to determine whether the suggestiveness created a

substantial likelihood of irreparable misidentification. Guzman-Cuellar, 47 Wn.

App. at 335.

                  EYEWITNESS IDENTIFICATION INSTRUCTION

       At trial, Ali proposed an eyewitness identification jury instruction.1 Ibrahim

stated his position on two other defense-proposed instructions, but he did not

mention the eyewitness instruction. The court declined to give the eyewitness

instruction proposed by Ali, and Ibrahim took no exceptions. Ibrahim now argues


       1Ali proposed the Ninth Circuit jury instruction 4.11, which reads:
              You have heard testimony of eyewitness identification. In
       deciding how much weight to give to this testimony, you may
       consider the various factors mentioned in these instructions
       concerning credibility of witnesses.
               In addition to those factors, in evaluating eyewitness
       identification testimony, you may also consider:
                (1) the capacity and opportunity of the eyewitness to observe
                    the offender based upon the length of time for
                   observation and the conditions at the time of observation,
                   including lighting and distance;
                (2) whether the identification was the product of the
                    eyewitness's own recollection or was the result of
                   subsequent influence or suggestiveness;
                (3) any inconsistent identifications made by the eyewitness;
                (4) the witness's familiarity with the subject identified;
                (5) the strength of earlier and later identifications;
                (6) lapses of time between the event and the identification^];
                   and
                (7) the totality of the circumstances surrounding the
                    eyewitness's identification.
Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury
Instructions for the District Courts of the Ninth Circuit 4.11 (2010)
(alteration in original).
No. 73413-0-1


that the trial court erred in declining to give the jury a specific instruction about

eyewitness testimony such as the one proposed by Ali.

         The State argues that because Ibrahim did not take exception to the

court's refusal to give the instruction, he invited the error he asserts on appeal.

To be invited, an error must be the result of an affirmative, knowing, and

voluntary act. State v. Lucero. 152 Wn. App. 287, 292, 217 P.3d 369 (2009),

rev'd on other grounds. 168 Wn.2d 785, 230 P.3d 165 (2010). Ibrahim did not

demonstrate the kind of affirmative conduct that can be classified as inviting the

error.



         Nevertheless, we generally will not consider an issue that is raised for the

first time on appeal. RAP 2.5. Below, Ibrahim did not raise any issue concerning

an instruction on eyewitness testimony. Ibrahim makes a cursory claim in his

reply brief that failing to give a special instruction on eyewitness testimony is a

manifest error affecting a constitutional right. We reject this claim. The trial court

gave pattern instructions on witness credibility2 and the State's burden of proof.3




         2       You are the sole judges of the credibility of each witness.
         You are also the sole judges of the value or weight to be given to
         the testimony of each witness. In considering a witness's
         testimony, you may consider these things: the opportunity of the
         witness to observe or know the things he or she testifies about; the
         ability of the witness to observe accurately; the quality of a
         witness's memory while testifying; the manner of the witness while
         testifying; any personal interest that the witness might have in the
         outcome or the issues; any bias or prejudice that the witness may
         have shown; the reasonableness of the witness's statements in the
         context of all the other evidence; and any other factors that affect
         your evaluation or belief of a witness or your evaluation of his or her
         testimony.
No. 73413-0-1


These instructions, taken together, are generally sufficient to charge the jury with

deciding whether the State has proven beyond a reasonable doubt that the

witness correctly identified the defendant. State v. Allen. 176 Wn.2d 611, 686,

294 P.3d 679 (2013). In view of Allen, there was no manifest error. The issue is

waived because it was not raised in the trial court.

                              RIGHT TO BE PRESENT


        Ali interrupted the prosecutor's closing argument with an accusation that

defense counsel was giving him drugs and offering him money in exchange for

sex. At the court's instruction, a jail guard removed Ali from the courtroom.

When the guard returned, he reported that Ali said he did not want to return to

court, did not want to talk to his attorney, and wanted only to go back to his jail

cell.


        If a defendant is removed from the courtroom during his trial, he must be

allowed to reclaim his right to be present if he assures the court that his conduct

will improve. Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353

(1970); State v. Chappie, 145 Wn.2d 310, 36 P.3d 1025 (2001). The trial court,

aware of this rule, asked defense counsel to advise Ali that he would be

permitted to return to the courtroom if he promised to behave appropriately.

When the court returned from recess, All's attorney stated on the record that he


        3      A defendant is presumed innocent. This presumption
        continues throughout the entire trial unless during your
        deliberations you find it has been overcome by the evidence
        beyond a reasonable doubt.
               A reasonable doubt is one for which a reason exists and
        may arise from the evidence or lack of evidence. It is such a doubt
        as would exist in the mind of a reasonable person after fully, fairly,
        and carefully considering all of the evidence or lack of evidence.
No. 73413-0-1



had tried to make contact with Ali in the jail and that Ali refused to communicate

with him. Closing argument then proceeded without Ali present. Ali argues that

the trial court did not give him an appropriate opportunity to reclaim his right to be

present.

       There are no specific requirements governing the procedure a trial court

uses to advise an ejected defendant of his right to reclaim the right to be present.

Chappie, 145 Wn.2d at 325-26. In Chappie, the trial court sent defense counsel

to ask whether the defendant wanted to return and, if so, to ask if he could

conduct himself appropriately. Chappie, 145 Wn.2d at 324. Defense counsel

reported back, on the record, that the defendant would not agree to behave

differently if allowed to return. Chappie, 145 Wn.2d at 324. This was held to be

adequate advisement. Chappie. 145 Wn.2d at 326.

       Ali's case is like Chappie except that Ali refused to speak with defense

counsel. Ali now argues that because the court knew he was unhappy with his

attorney and had previously tried to have him discharged, the court should not

have relied on the attorney to deliver the message and should have devised

some other method, perhaps by appointing conflict counsel, sending the bailiff

with a message, or drafting an order to give to Ali. These options were not

proposed to the trial court at the time.

       Ali had previously tried to delay the trial based on his alleged

dissatisfaction with defense counsel. His outrageously disruptive behavior

occurred during closing argument. Ali had two codefendants who both moved for
No. 73413-0-1


a mistrial based on his outburst. We conclude the steps taken by the court were,

under the circumstances, adequate to protect Ali's right to be present at trial.

       Affirmed.




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WE CONCUR:




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