Home/Court of Appeals of Washington/State v. Schultz

State v. Schultz

627 P.2d 107, 27 Wash. App. 722, 1980 Wash. App. LEXIS 2442
Court of Appeals of Washington·Decided December 1, 1980·No. No. 8103-9-I·Published·Cited by 3 cases

Opinion

Williams, J.

Eric Garth Schultz was charged and convicted of two counts of first degree robbery with special [723] verdicts that he was armed with a deadly weapon as to both counts. His appeal concerns the court's denial of his motion to suppress evidence of eyewitness identification relevant to count one at trial. Schultz contends that the motion should have been granted because a pretrial photographic identification procedure was impermissibly suggestive and because the police should have used the lineup method, Schultz then being in custody.

The trial court found that the photograph montage used for pretrial identification was not impermissibly suggestive and the record supports that finding. See photo montage on following page.

The use of the photo montage for identification purposes when Schultz was in custody presents a more difficult problem. For some years, the appellate courts of this state have cautioned against use of the photo montage identification technique when a lineup identification procedure was available. State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977); State v. Thorkelson, 25 Wn. App. 615, 611 P.2d 1278 (1980); State v. Nettles, 6 Wn. App. 257, 492 P.2d 567 (1971), aff'd on appeal, 81 Wn.2d 205, 500 P.2d 752 (1972); State v. Lane, 4 Wn. App. 745, 484 P.2d 432 (1971); State v. Ferguson, 3 Wn. App. 898, 479 P.2d 114 (1970).

In State v. Nettles, 81 Wn.2d at 209-10, the Supreme Court said:

We cannot commend the [photographic] identification procedure which was used in this case. Where a defendant is in custody and available for a lineup, a lineup identification procedure would usually be a more effective, less questionable law enforcement technique, and should be used, following the requirements or standards prescribed in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), and Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967).

The Supreme Court has not decided whether the lineup procedure must be used in the absence of extenuating circumstances if the defendant is in custody. State v. Hilliard, supra.

[724]

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Schultz, 627 P.2d 107, 27 Wash. App. 722, 1980 Wash. App. LEXIS 2442 (Wash. Ct. App. 1980).

627 P.2d 107 (State v. Schultz) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Cook
639 P.2d 863 (Court of Appeals of Washington, 1982)
State v. Poulos
640 P.2d 735 (Court of Appeals of Washington, 1982)
State v. Weddel
629 P.2d 912 (Court of Appeals of Washington, 1981)