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Jeffrey Eric Brigman v State of Alaska (4/22/2022) ap-2724

Jeffrey Eric Brigman v State of Alaska (4/22/2022) ap-2724

                                                     NOTICE
  

           The text of this opinion can be correct before the opinion is published in the  

           Pacific  Reporter.    Readers  are  encouraged  to  bring  typographical  or  other  

           formal errors to the attention of the Clerk of the Appellate Courts:  



                                 303 K Street, Anchorage, Alaska  99501
    

                                             Fax:  (907) 264-0878
  

                                     E-mail:  corrections@akcourts.gov
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JEFFREY ERIC BRIGMAN,  

                                                                    Court of Appeals No. A-12727  

                                    Appellant,                   Trial Court No. 3AN-13-09635 CR  



                    v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                         No. 2724 - April 22, 2022  



                  Appeal  from  the  Superior  Court,  Third  Judicial  District,  

                                     

                  Anchorage, Kevin M. Saxby, Judge.  



                  Appearances: Justin N. Gillette, Assistant Public Defender, and  

                                      

                  Samantha       Cherot,     Public   Defender,        Anchorage,       for   the  

                  Appellant.      Eric  A.  Ringsmuth,  Assistant  Attorney  General,  

                                                                                        

                  Office of Criminal Appeals, Anchorage, and Treg R. Taylor,  

                                                                                          

                  Attorney General, Juneau, for the Appellee.  



                  Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer,  

                                       

                  Senior Judge.*  

                                      



                  Judge ALLARD.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                      JeffreyEricBrigman was convicted,                           following ajury            trial, offelony driving     



                                 1  

under the influence.                                                                                                                     

                                    In his original appeal, Brigman argued that the superior court erred  



                                                                                                                                                

when it failed to suppress an out-of-court eyewitness identification that resulted from a  



                                  2  

                                                                                                                                   

                                        Because  the  superior  court  had  not  analyzed  the  showup  

showup  procedure. 



                                                                                                                                            

identification under the Alaska Supreme Court's newly adopted  Young standard, we  



                                                                                                                                      3  

                                                                                                                                          

remanded Brigman's case so that the superior court could conduct that analysis. 



                                                                                                                                           

                      On remand, the superior court found that the showup identification was  



                                                                                                                                          

sufficiently reliable under Young and was therefore admissible at trial.  Brigman now  



                                                                                                                                         

appeals that ruling.  For the reasons explained here, we conclude that the superior court  



                                         

did not err in its Young analysis.  



                                     

           Relevant facts  



                                                                                                                                             

                      Around 10:00 p.m. on a September evening in 2013, a woman stepped out  



                                                                                                                                         

of a gas station in Anchorage to find that her car had been stolen.  A few minutes later,  



                                                                                                                                      

the driver of the stolen car crashed into a sidewalk area near 10th Avenue and Juneau  



              

Street.  



                                                                                                                                             

                      Thomas Jenkins, who was walking his dog on 10th Avenue, witnessed the  



                                                                                                                                             

crash, and he approached the driver to offer assistance.  Jenkins believed, based on his  



                                                                                                                                     

contact with the driver, that the driver was under the influence of something.  Jenkins  



      1    AS 28.35.030(n).  



      2    A showup is essentially a single-person lineup.                                A single suspect is presented to a   



witness to see if the witness can make an identification.                                    These often occur at or near the  

scene of a crime soon after it takes place.                         See Brigman v. State, 2020 WL 704854 (Alaska  

App. Feb. 12, 2020) (unpublished).  



      3    Id. (citing Young v. State, 374 P.3d 395 (Alaska 2016)).  



                                                                   - 2 -                                                                  2724
  


----------------------- Page 3-----------------------

 spoke to the driver briefly before leaving to retrieve his cell phone and call 911.                                                                                                                                                                                                                                                                                                                                                                          4  The  



driver left the scene before Jenkins returned.                                                                                                                                                                                                             



                                                                          When Jenkins called 911, he described the driver as a man with black hair,                                                                                                                                                                                                                                                                                                                 



gray clothing, and wearing a zippered hoodie.                                                                                                                                                                                                                   Jenkins thought the man was white, but                                                                                                                                                                     



he could not be sure.                                                                                              Jenkins also told the 911 operator that the man might have walked                                                                                                                                                                                                                                                                  



 south on Ingra Street when he left the scene.                                                                                                                                                                                                          



                                                                          Almost immediately after this                                                                                                                                     911 call, Officer AngelinaFraizespotted and                                                                                                                                                                                    



detained a white male suspect with dark hair and dark clothing walking south on Ingra                                                                                                                                                                                                                                                                                                                                                                           



 Street, approximately a block from the crash scene. This suspect was Brigman. At trial,                                                                                                                                                                                                                                                                                                                                                                            



Officer Fraize described Brigman as "obviously intoxicated," "sweaty," and "nervous."                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                          Another officer, Steven Childers, brought Jenkins to where Officer Fraize                                                                                                                                                                                                                                                                                                        



was holding Brigman, so that the police could conduct a showup identification - asking                                                                                                                                                                                                                                                                                                                                                                    



Jenkins if he could identify Brigman as the driver he had spoken to several minutes                                                                                                                                                                                                                                                                                                                                                             



earlier.  To facilitate this showup, Officer Fraize had Brigman stand next to her police                                                                                                                                                                                                                                                                                                    



car in handcuffs.                



                                                                          Before asking Jenkins whether he could identify the man standing next to                                                                                                                                                                                                                                                                                                                                 



the patrol car, Officer Childers specifically instructed Jenkins that this man might or                                                                                                                                                                                                                                                                                                                                                                                         



might not be the right person.                                                                                                                                          Jenkins identified Brigman as the driver of the crashed                                                                                                                                                                                                                    



vehicle.  



                                                                          At trial, Jenkins testified to his identification of Brigman. Jenkins testified                                                                                                                                                                                                                                                                                        



that Brigman was wearing a gray hoodie at the time of the crash.                                                                                                                                                                                                                                                                                                                   (Brigman was not                                                                       



                  4                  It was evening when Jenkins observed the driver.  Jenkins testified that there was a  



 street lamp about twenty-five feet from where the crash occurred that offered some additional                                                                                                                                                                                                                                                                                                                                            

light by which to see.  



                                                                                                                                                                                                                             - 3 -                                                                  2724
  


----------------------- Page 4-----------------------

wearing   a   hoodie   in   the   photograph   taken   of   him   at  the   scene   of   the   showup  



identification.)  



                                                        Another eyewitness to the crash also identified Brigman at trial.                                                                                                                                                                                                                           This  



 second eyewitness testified that he was drunk when he witnessed the crash and that the                                                                                                                                                                                                                                                                       



police never asked him                                                                         to participate in a showup identification or any other out-of-court                                                                                                                                                      



identification.  Instead, at trial, this eyewitness was shown the photograph of Brigman                                                                                                                                                                                                                                   



taken during the showup identification with Jenkins. This second eyewitness identified                                                                                                                                                                                                                                             



Brigman as the driver of the crashed vehicle, although he stated that he could not be sure.                                                                                                                                                                                                                                                                                    



The eyewitness had previously described the driver as a white male adult wearing a gray                                                                                                                                                                                                                                                             



 shirt with wavy, dark-colored, shoulder-length hair.                                                                                                                                                                     (Brigman's hair in the photograph                                                                



is shorter than shoulder-length.)                             



                                                        Brigman was convicted at trial.                                                                                                       



                            Brigman's motion to suppress and our remand to the superior court                                                                                                                                                                                                       



                                                        Prior   to   trial,   Brigman   moved   to   suppress   the   results   of   the   showup  



identification by Jenkins, arguing that the showup procedure was improperly suggestive                                                                                                                                                                                                                                         



and that the resulting identification was therefore unreliable.                                                                                                                                                  



                                                        The superior                                             court held                                      an evidentiary                                                    hearing   on  this  motion.     After  



evaluating the showup under the then-existing legal test set forth in                                                                                                                                                                                                                          Anderson v. State                                     



                                                                                                                  5  

and  Manson v. Braithwaite                                                                                      ,                                                                                                                                                                                                                                                              

                                                                                                                       the court ruled that the result of the showup was admissible.  



                                                                                                                                                                                                                                                                                                                                    

                                                        However, after the superior court made its ruling, the Alaska Supreme  



                                                                                                                                                                                                                                                                                                                    

Court adopted anewtest for evaluating thereliabilityofout-of-court policeidentification  



              5             Anderson v. State , 123 P.3d 1110, 1116 (Alaska App. 2005); Manson v. Braithwaite ,  



432 U.S. 98, 114 (1977).  



                                                                                                                                                                        - 4 -                                                                  2724
  


----------------------- Page 5-----------------------

                                                       6 

procedures in              Young v. State             .   In Brigman's initial appeal, the State conceded that the   



 Young  test applied to Brigman's case, and we therefore remanded the case to the superior                                                         

court to conduct the appropriate analysis under                                          Young.7  



            An overview of the                   Young  test   



                         In       Young           v.     State,        the       Alaska           Supreme             Court          held        that       the  



Anderson/Braithwaite   test   for   evaluating   the   reliability  of   out-of-court   eyewitness  



identifications did not adequately protect a defendant's right to due process under the                                                                     



                                       8 

Alaska Constitution.                                                                                                                    

                                          In its place, the court adopted a new test that was modeled after  



                                                                                                                                          9  

                                                                                                                                              

the test set forth by the New Jersey Supreme Court in State v. Henderson. 



                                                                                                                                                                    

                         The supreme court had two principal reasons for adopting this new test.  



                                                                                                                                                 

First, the Young test corrected some of the deficiencies of the former test by requiring  



                                                                                                                       

trial judges to consider scientifically grounded variables when assessing the reliability  



                                                                                                                              10  

                                                                                                                                                        

                                                                                                                                   Second, in cases  

of an out-of-court identification procedure conducted by the police. 



                                                                                                                                                            

where the trial court does not order suppression of an out-of-court identification, the  



       6     Young, 374 P.3d at 426-28.  



       7     Brigman, 2020 WL 704854, at *1.  



       8     Young, 374 P.3d at 412.  



       9     Id. at 417-27 (citing State v. Henderson, 27 A.3d 872 (N.J. 2011)).  



       10    Id.  at 412-29; see Henderson, 27 A.3d at 918-22 (outlining the problems inherent in  



the prior eyewitness identification test under Braithwaite  and explaining the variables to be  

considered under the new test).  



                                                                           - 5 -                                                                  2724
  


----------------------- Page 6-----------------------

 Young  test prescribed improved jury instructions to assist jurors in evaluating the out-of-                                                          



                                                                                                                                        11  

court identification according to these scientifically grounded variables.                                                                   



                                                                                                                                                          

                         Under Young, a trial court is required to consider two sets of variables when  



                                                                                                                                                                     

evaluating whether to suppress the results of an out-of-court eyewitness identification.  



         

The supreme court referred to the first group of variables as "system variables" (those  



                                                                                                                                               

variables that are within the control of the law enforcement officers who are conducting  



                                                                                                                                                              

the identification procedure) and "estimator" variables (those variables intrinsic to the  



                                                                                                             12  

                                                                                                                 

event that are not within the control of law enforcement). 



                                                                                                                                              

                         Under the Young test, a defendant who seeks suppression ofan out-of-court  



                                                                                                                                                              

identification must show "some evidence," tied to asystemvariable, tending to show that  



                                                                                                                                                   

the identification procedure was tainted by suggestiveness that could lead to a mistaken  



                           13  

                                                                                                                                                 

identification.                  System variables include both how the identification was structured  



                                                                                                                                                              

(e.g., whether it was the product of a showup, a lineup, or a photographic array) and the  



                                                                                                                                                     

procedures surrounding the identification (e.g., the composition of the lineup, whether  



                                                                                                                                                   

thewitness received properly neutral pre-identification instructions or,instead, improper  



                                                                                                                                                       

confirmatory feedback).   Young outlines the following non-exhaustive list of system  



       11    Young, 374 P.3d at 428;                   see Henderson, 27 A.3d at 924-26 (directing the development   



of enhanced jury instructions).  



       12    Young, 374 P.3d at 416-25 (discussing variables).  



       13    Id. at 427.  The supreme court explained that a suppression motion must generally be  

                                                                                                                                                                

based  on  a  system  variable  because  state  action  is  required  to  trigger  a  due  process  

                                      

suppression analysis.  Id. ; see also Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973)  

                                                                                     

("For [the due process] clause to apply there must be state action and the deprivation of an  

individual interest of sufficient importance to warrant constitutional protection.").  But see  

                                                                                                                                                       

Henderson, 27 A.3d at 920 (recognizing this same requirement, but pointing to one New  

                                                                                               

Jersey case,  State  v.  Chen,  208  N.J.  307  (2011),  where  conduct  by a  private  actor  was  

                                                                                                                                

sufficient to trigger an evidentiary hearing).  



                                                                            - 6 -                                                                  2724
  


----------------------- Page 7-----------------------

variables for a trial court to consider when determining whether a defendant has met this                                                 



initial  burden  of  showing  "some  evidence"  of  suggestiveness:   



                      1.  Blind   Administration.     Was   the   identification   procedure   performed  



double-blind   (i.e.,  was  the   person   administering   the   procedure   kept   ignorant   of   the  



identity of  the  person  who  was  suspected)?  If  double-blind  administration  of  a  photo  



lineup  or  physical  lineup  was  impractical,  did  the  police  at  least  use  a  technique  to  ensure  



that  the  administrator  had  no  knowledge  of  where  the  suspect  appeared  in  the  photo  array  

or  lineup?14  



                      2.  Pre-identification  Instructions.   Did  the  administrator  provide  neutral  



pre-identification   instructions   to   the   witness   being   asked   to   make   the   identification,  



warning  the  witness  that  the  suspect  may  not  be  present  in  the  lineup  and  that  the  witness  

should  not  feel  compelled  to  make  an  identification?15  



                      3.  Lineup  Construction.   Did  the  photo  array or lineup  contain  only  one  



suspect  embedded  among  at  least  five  innocent  fillers?  Did  the  suspect  stand  out  from  

other  members  of  the  lineup?16  



      14   Young, 374 P.3d at 417-18; see Henderson, 27 A.3d at 897 ("The consequences are  



                                                                                                       

clear:  a non-blind lineup procedure can affect the reliability of a lineup because even the  

                                                                                                                                

best-intentioned,  non-blind  administrator  can  act  in  a  way  that  inadvertently  sways  an  

                                                               

eyewitness trying to identify a suspect.  An ideal lineup administrator, therefore, is someone  

who is not investigating the particular case and does not know who the suspect is.").  



      15   Young, 374 P.3d at 418-19; see Henderson, 27 A.3d at 897 ("Pre-lineup instructions  

                                                                                 

help reduce the relative judgment phenomenon . . . .   Without  an appropriate warning,  

                                                                                                              

witnesses may misidentify innocent suspects who look more like the perpetrator than other  

                                            

lineup  members.              .  .  .   In  one  experiment,  45%  more  people  chose  innocent  fillers  in  

                                                                                                                  

target-absent lineups when administrators failed to warn that the suspect may not be there.").  

                                                                                                                         



      16   Young, 374 P.3d at 419-20; see Henderson, 27 A.3d at 897 ("Properly constructed  

                                                                                                                             

                                                                                                                          (continued...)  



                                                                  - 7 -                                                                  2724
  


----------------------- Page 8-----------------------

                     4.  Feedback   and   Recording   Confidence.    Did   the   witness receive   any  



feedback   from   the   police   or   from   another   witness   before,   during,   or   after   the  



identification   procedure?    If   the   witness   made   a   statement   regarding   their   level   of  



confidence  in  the  identification,  did  the  administrator  record  the  witness's  statement  of  



confidence  immediately after the identification, before any possibility of confirmatory  

feedback?17  



                     5.  Showups.   Was   the   witness   identified   in   a   showup?   Did   the  police  



perform   the   showup   more   than   two hours   after   the   event?   Did   the   police   warn   the  



witness  that  the  person  they  were  about  to  view  may  not  be  the  perpetrator,  and  that  the  

witness  should  not  feel  compelled  to  make  an  identification?18  



                     6.  Multiple  Viewings.   Was  the  witness exposed  to  the  suspect  after  the  



crime  but  before  making  the  identification?  Did  the  witness  fail  to  identify  the  suspect  



                                     19  

in  an  earlier  procedure?              



     16   (...continued)  



lineups  test  a  witness'[s]  memory  and  decrease  the  chance  that  a  witness  is  simply  

                                                       

guessing.").  



     17  

                                                                                                                   

           Young, 374 P.3d at 420; see Henderson, 27 A.3d at 900 ("Confirmatory feedback can  

                                                                                                  

distort  memory.             As  a  result,  to  the  extent  confidence  may  be  relevant  in  certain  

                                                                                                                         

circumstances,  it  must  be  recorded  in  the  witness'[s]  own  words  before  any  possible  

                 

feedback.  To avoid possible distortion, law enforcement officers should make a full record  

                                                                                     

- written or otherwise - of the witness'[s] statement of confidence once an identification  

is made.  Even then, feedback about the individual selected must be avoided.").  



     18    Young, 374 P.3d at 420-21; see Henderson, 27 A.3d at 903 ("By their nature, showups  

                                                                                                       

are suggestive and cannot be performed blind or double-blind.").  



     19    Young, 374 P.3d at 421; see Henderson, 27 A.3d at 900 ("Viewing a suspect more  

                                                                                     

than once during an investigation can affect the reliability of the later identification.  The  

                                                                                                                                

problem . . . is that successive views of the same person can make it difficult to know  

                                                                                         

                                                                                                                 (continued...)  



                                                             - 8 -                                                                  2724
  


----------------------- Page 9-----------------------

                         Again,  Young  states that a defendant need only show "some evidence" of                                                             



suggestiveness from the above non-exhaustive list of system variables in order to obtain                                                               



                                                                                              20  

an evidentiary hearing on their suppression claim.                                                 



                                                                                                                                                      

                         If the defendant establishes the need for an evidentiary hearing, the burden  



                                                                                                                                                            

of production shifts to the State.  The State must offer evidence that, even though the  



                                                                                                                                              

eyewitness identification procedure was potentially subject to suggestive influences  



                                                                                                                                    21  

                                                                                                                                                             

arising from system variables, the identification is nevertheless reliable.                                                             However, the  



                                                                                                                     22  

                                                                                                                                                     

ultimate  burden  of  persuasion  remains  with  the  defendant.                                                             In  order  to  obtain  



                                                                                                                                          

suppression of the out-of-court identification (and any subsequent in-court identification  



                                                                                                                                              

by the witness), the defendant must show a "very substantial likelihood of irreparable  

misidentification."23  



       19    (...continued)  



                                                                                                                                                               

whether the later identification stems from a memory of the original event or a memory of  

the earlier identification procedure.").  



      20     Young, 374 P.3d at 427.  



      21    Id.  The State can also offer proof to rebut the defendant's claim of suggestiveness.  

                                                                           

For example, if the defendant claims that there is "some evidence" that the witness received  

                             

confirmatory feedback, the State may respond by introducing evidence to the contrary. If the  

                                                                                                                                                             

court determines that the confirmatory feedback did not occur and that no other evidence of  

                                                                      

suggestiveness from a system variable otherwise exists, then suppression can be denied  

                                                        

without additional analysis of the estimator variables.  See Henderson, 27 A.3d at 920 ("[At  

                                                                                                                              

the  hearing,  t]he  State  must  then  offer  proof  to  show  that  the  proffered  eyewitness  

                                                                                         

identification is reliable - accounting for system and estimator variables - subject to the  

                                                                                           

following:   the court can end the hearing at any time if it finds from the testimony that  

                                                                                                                                                           

defendant's threshold allegation of suggestiveness is groundless.").  



      22     Young, 374 P.3d at 427.  



      23    Id. (quoting Henderson, 27 A.3d at 920).  

                                                                         



                                                                           - 9 -                                                                  2724
  


----------------------- Page 10-----------------------

                        To  evaluate  whether  the  defendant  has  made  the  required  showing,  a  trial  



court must consider  both the system variables and the  estimator variables described in  



             24  

Young.    Again,  estimator  variables  are  those  factors  intrinsic  to  the  event  and  not  within  



the  control  of  law  enforcement,  such  as  environmental  variables  and  the  characteristics  



                                                        25  

                                                                                                                                                     

of  the  witness  and  the  suspect.                          Some examples of estimator variables the trial court  



                                            

must consider include:  



                         1.  Stress.   Did  the  witness  view  the  perpetrator  under  particularly  stressful  



                     26  

conditions?               



                        2.  Weapons   Focus.    Was   a   weapon,   or   another   unusual   or   distracting  

object,  visible  during  the  time  the  witness  was  viewing  the  perpetrator?27  



                         3.  Duration   of   View.     How   long   was   the   witness   able   to   see   the  

perpetrator?28  



      24    Id.  



      25    Id. at 417.  



      26    Id.  at  422  ("Acknowledging  the  negative   effect  of   stress  on  the  reliability   of  



eyewitness identifications may help jurors counteract the common misconception that faces   

seen in highlystressful situations can be burned into a witness's memory." (internal quotation   

marks and citation omitted)).  



      27  

                                                                                                                                   

            Id.  at 422-23; see Henderson, 27 A.3d at 904-05 ("When a visible weapon is used  

                                                                                                                                        

during a crime, it can distract a witness and draw his or her attention away from the culprit.").  



      28     Young, 374 P.3d at 423.  



                                                                         - 10 -                                                                  2724
  


----------------------- Page 11-----------------------

                   4.  Environmental Conditions of  View.   What  environmental  conditions,  



such   as   distance   and   lighting,   may   have   affected   the   witness's   ability   to   view   the  

perpetrator?29  



                   5.  Witness  Characteristics.   Were  there  any  characteristics  of  the  witness,  



such  as  mental  and  physical  health,  age,  vision,  or  alcohol  or  drug use,  that  may  have  

compromised  the  witness's  ability  to  see  and  identify  the  perpetrator?30  



                   6.  Perpetrator  Characteristics.   Was  the  perpetrator  disguised  or  otherwise  

difficult  to  describe?  Has  the  suspect's  appearance  changed  since  the  crime?31  



                   7.  Race   and   Ethnicity   Bias.     Does   the   case   involve   a   cross-racial  

identification?32  



                   8.  Memory Decay/Retention Interval.   How much time passed between the  

crime  and  the  identification  procedure?33  



                   9.  Co-Witnesses.    Did   the   witness   discuss   the   identification   or   receive  

information  about  the  suspect  from  co-witnesses  or  other  non-state  actors?34  



    29   Id.
  



    30   Id. at 423-24.
  



    31   Id.  at 424 ("Masks, sunglasses, hats, hoods, and other things that hide the hair and
  



hairline affect witnesses' ability to accurately identify a perpetrator.").  



    32   Id.  



    33   Id. at 424-25.  



    34   Id. at 425.  



                                                        - 11 -                                                                  2724
  


----------------------- Page 12-----------------------

                      This  is  not  a  complete  list  of  the  estimator  variables  that  a  trial  court  should  



               35  

consider.            The   Young   test   recognizes   that   the   scientific   research   pertaining   to  



eyewitness   identification   continues   to   evolve   and   that   trial   courts   should   take   into  



account    this    developing    research    when    assessing    the    reliability    of    eyewitness  

identifications.36  



                                                                                                                                        

                      One question that the Young opinion did not directly answer is whether the  



                                                                                                                                         

Biggers factors - the factors that were used in the former Anderson/Braithwaite test -  



                                                                              

are still valid factors to consider under the new test.  



                                                                                                                                        

                      Under Anderson/Braithwaite , a defendant was required to show that the  



                                                                                                                     

procedures used to obtain the out-of-court eyewitness identification were "unnecessarily  



                    37  

suggestive."                                                                                                                          

                        Once this showing was made, the trial court was required to consider "the  



                                                                                                                         

totality of the circumstances" in determining whether the identification was nevertheless  



                                                              38 

                                                                                              

                               

reliable enough to be admitted at trial.                          In assessing the totality of the circumstances,  



                                                                                                                              39  

                                                                                                                                   These  

the court was required to consider the five factors articulated in Neil v. Biggers. 



                                                                                                                                   

factors were:  (1) the witness's opportunity to view the suspect at the time of the crime;  



                                                                                                                                        

(2) the witness's degree of attention; (3) the accuracy of any prior description of the  



                                                                                                                       

suspect; (4) the level of certainty demonstrated by the witness during the identification  



      35   Id. at 427.  



      36   Id.  ("Because of this, trial courts should not hesitate to take expert testimony that                                      



explains,  supplements,  or  challenges  the  application   of   these  variables  to  different  fact  

situations.").  



      37   Anderson v. State , 123 P.3d 1110, 1116 (Alaska App. 2005); Manson v. Braithwaite ,  



432 U.S. 98, 114 (1977).  



      38   Anderson , 123 P.3d at 1116.  



      39   Braithwaite, 432 U.S. at 114 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).  

                                                                           



                                                                 - 12 -                                                                  2724
  


----------------------- Page 13-----------------------

procedure;    and    (5)    the    time    interval    between    the    crime    and    the    out-of-court  



                      40  

identification.           



                                                                                                                                   

                     Although the Young opinion did not directly address the current status of  



                                                                                                                                 

the Biggers factors, the supreme court indicated that its new test was modeled after the  



                                                                                              41  

                                                                                                                                 

                                                                                                  And in Henderson, the  

test adopted by the New Jersey Supreme Court in Henderson . 



                                                                                                                      

New Jersey Supreme Court made clear that the Biggers factors should still be considered  



                                                                                                        42  

                                                                                                                            

among the estimator variables, albeit with some important caveats.                                          The New Jersey  



                                                                                                                                 

Supreme Court cautioned trial courts to be aware of the scientific criticism that the  



                                                                                                                

Biggers factors havegenerated. Chiefamongthesecriticismsis Biggers 'sover-emphasis  



                                                  43  

                                                       

on a witness's level of certainty. 



                                                                                                                               

                     Scientific studies have shown that a witness's level of certainty is a poor  



                                                                                                                        

indicator of the reliability of the witness's identification - in part, because a witness's  



                                                                                                                  

level of certainty is often a product of suggestive procedures such as confirmatory  



               44  

                                                                                                                         

feedback.          Therefore, the New Jersey Supreme Court directed trial courts to consider  



                                                                                                                                 

whether thewitnessexpressed high confidencein theidentification "before receiving any  



                                                                        45  

                                                     

feedback or other [confirmatory] information."                                                                                  

                                                                             The New Jersey Supreme Court also  



                                                                                                                               

encouraged trial courts to consider using protective orders to block the government from  



                                                                                                                        

introducing evidence of a witness's high degree of certainty, even when the witness's  



     40   Biggers, 409 U.S. at 199-200.  



     41    Young, 374 P.3d at 427.  



     42   State v. Henderson, 27 A.3d 872, 918-22 (N.J. 2011).  



     43   Id. at 918.  



     44   Id.  



     45   Id. at 922 (emphasis added).  



                                                              - 13 -                                                                  2724
  


----------------------- Page 14-----------------------

out-of-court identification is not suppressed,  if  the  witness's  level  of certainty appears  

to  have  been  influenced  by  suggestive  procedures.46  



                    Another  criticism  of  the  Biggers  framework,  discussed  in  both  Henderson  



and  Young,  is  that  three  of  the  Biggers  factors  -  the  witness's  opportunity  to  view  the  



crime,  the  witness's  degree  of  attention,  and  their  level  of  certainty  -  often  rely  solely  



                                                   47  

on   the   witness's   self-reporting.                                                                             

                                                         Studies  have  shown  that  witnesses  frequently  



                                                                                                                               

overestimate how  long they  saw the perpetrator  and their degree  of attention to the  



                  48  

perpetrator.                                                                                                                   

                      They also often underestimate the distance between themselves and the  



                  49  

                                                                                                                     

perpetrator.           Therefore,  to  the  extent  possible,  a  trial  court  should  use  objective  



                                                                                                                                  

measures when  assessing these  estimator variables rather  than rely  exclusively on  a  



                

witness's self-reporting.  



                                                                                                                               

                    Ultimately,  the  Young test  requires  a  trial  court  to  decide  whether  the  



                                                                                                                 

defendant  has  shown,  by  a  preponderance  of  the  evidence,  that  the  out-of-court  



                                                                                                                   

identification  procedure  is  tainted  by  a  "very  substantial  likelihood  of  irreparable  



                            50  

misidentification."                                                                                                               

                                  The  trial court's  analysis  of this  question must  be  based  on  a  



     46   Id.  at 925; cf. State v. Lawson, 291 P.3d 673, 695 (Or. 2012) (suggesting that trial  



courts can satisfyEvidence Rule 403 byadmitting an eyewitness's out-of-court identification  

                                                                            

but excluding the accompanying statement regarding the witness's level of certainty, because  

                                                                                                           

such statements can often be persuasive to jurors but actually have limited reliability).  



     47   Young v. State, 374 P.3d 395, 425-26 (Alaska 2016); Henderson, 27 A.3d at 918.  



     48   Young, 374 P.3d at 420 n.140, 423.  



     49   Id. at 423.  



     50   Id. at 427 (quoting Henderson, 27 A.3d at 920).  



                                                             - 14 -                                                                  2724
  


----------------------- Page 15-----------------------

                                                                                                                                                                                                          51  

consideration of both the system variables and the estimator variables.                                                                                                                                         The court's   



analysis should also be informed by accepted scientific studies regarding the inherent                                                                                                                                     

perils that can lead to flawed eyewitness identifications.                                                                                                   52  



                                                                                                                                                                                                                    

                                      If the trial court finds that the defendant has shown a "very substantial  



                                                                                                                                                                                                                 

likelihood ofirreparable misidentification," the trial court must suppress the out-of-court  



                                                                                                                                                                                                                                      53  

                                                                                                                                                                                                                                             

identification and preclude the witness from providing any in-court identification.                                                                                                                                                           If  



                                                                                                                                                                                                                                      

the trial court finds that the defendant has not made the requisite showing, the court must  



                                                                                                                                                                                                                                   

still provide the kind of tailored jury instructions described in Young to ensure that jurors  



                                                                                                                                                                                                                  

understand  the  factors  that  can  affect  the  reliability  of  an  out-of-court  eyewitness  

identification.54  



                   The  Young  test applied to the facts of Brigman's case                                                                                                 



                                     Here, there is no question that Brigman met his initial burden of showing                                                                                                             



"some evidence" of suggestiveness related to a systemvariable, because the out-of-court                                                                                                                          



identification   in   Brigman's   case   was   obtained   through   a   showup  -   an   inherently  



suggestive procedure.                                           



                                      In a showup, a single suspect is presented to a witness, and the witness is                                                                                                                             



asked    whether    they    can    make    an    identification.       As    courts    have    frequently  



          51      Id.  



          52      Id.  



          53      Id.  



          54      Id.   at 428; see Henderson, 27 A.3d at 920 ("If the evidence is admitted, the court   



should provide appropriate, tailored jury instructions . . . .").  



                                                                                                                - 15 -                                                                  2724
  


----------------------- Page 16-----------------------

                                                                                                             55  

acknowledged, showups are "inherently suggestive."                                                                By their very nature, they cannot                    



be performed using a blind or double-blind format.                                                           



                            Moreover, in contrast to lineups and photographic arrays, where a witness                                                               



with a faulty memory might well pick someone other than the suspect, every positive                                                                                



                                                                                                     56  

                                                                                                                                                                         

identification in a showup implicates the suspect.                                                        As the Alaska Supreme Court noted  



                                                                                                                                                                             

in  Young,  "Showups  seemingly  provide  little  protection  against  witnesses  who  are  



                                                                                                                                                       

inclined to guess, as witnesses participating in showups tend to base their identifications  



                           57  

                                                                                                                                                                        

on clothing."                   Research also shows that "an innocent suspect who resembles the actual  



                                                                                                                                                                             58  

                                                                                                                                                                                   

perpetrator is more likely to be incorrectly identified in a showup than in a lineup." 



                                                                                                                                                                      

                            Despite these problems, showups still play a role in the criminal justice  



                                                                                                                                                          

system because they are often the best way to determine the direction of an investigation  



                                                                                                                                                                          

under exigent circumstances. For example, in Brigman's case, the police needed to learn  



                                                                                                                                                                                

whether they had apprehended the intoxicated driver who had just fled the crash site or  



                                                                                                                                                

whether they should continue their search.   Because showups are useful  and  often  



                                                                                                                                                             

necessary, the out-of-court identifications resulting from showups remain potentially  



                                                                     

admissible under the Young test.  



                                                                                                                                                                

                            But under the Young test, the fact that a showup may have been necessary  



                                                                                                                                                                                

under the circumstances does not end the analysis.  Instead, a trial court is required to  



                                                                                                                                                                           

assess all of the relevant system and estimator variables, with particular attention to how  



       55     Anderson v. State , 123 P.3d 1110, 1117 (Alaska App. 2005).  



       56     Young, 374 P.3d at 421.  



       57     Id.  



       58     Id.  



                                                                                   - 16 -                                                                  2724
  


----------------------- Page 17-----------------------

                                                                                          59  

the showup was conducted and when it occurred.                                                 Studies have shown that showups               



are often most reliable if they are conducted immediately after the crime when the                                                                     



                                                     60  

witness's  memory   is   fresh.                                                                                                                           

                                                             But  research  also  shows  that  the  likelihood  of  a  



                                                                                                                                                        

misidentification at a showup increases significantly in as little as two hours after the  

event.61  



                                                                                                                                                        

                        In addition, studies have shown that the pre-identification instructions the  



                                                                                                                                           

witness  receives  are  an  important  influence  on  the  reliability  of  the  witness's  



                         62  

identification.                                                                                                                                        

                              To increase the chances of reliability, a witness should be instructed that  



                                                                                                                                                        

the person they are about to view may or may not be the culprit and that they should not  



                                                                             63  

                                                    

feel compelled to make any identification. 



                                                                                                                                             

                        In Brigman's case, the superior court found that the showup occurred  



                                                                                                                                                      

within  minutes  of  the  time  when  the  witness,  Thomas  Jenkins,  encountered  and  



                                                                                                                                                       

conversed with the driver of the crashed vehicle.  The record supports this finding, and  



                                                                                                                                                    

the parties appear to agree that less than thirty minutes passed from the time of the crash  



                                                 

to the time of the showup.  



                                                                                                                                          

                        Thesuperiorcourt also found thatOfficer Childersprovided theappropriate  



                                                                                                                                            

pre-identification instructions to Jenkins. Prior to the identification, Childers instructed  



                                                                                                                                        

Jenkins that the person in custody might or might not be the driver.  These instructions  



                                                                     

were recorded and are not in dispute.  



      59    Id. at 427.  



      60    Id. at 421.  



      61    Id.  



      62    Id. at 418-19.  



      63    Id.  



                                                                        - 17 -                                                                  2724
  


----------------------- Page 18-----------------------

                              Based on the immediacy of the showup and the fact that Jenkins received                                                                         



neutral   pre-identification   instructions,   the   superior   court   found   that   the   showup  



identification that occurred in Brigman's case was "the type the Supreme Court had in                                                                                                       



mind when it said [that showups] can be reliable."                                          



                              But,   as   the   superior  court   recognized,   finding   that   the   showup   was  



conducted in an appropriately neutral form is not the end of the analysis under                                                                                                  Young.   



The superior court still needed to assess the estimator variables to determine whether,                                                                                      



notwithstanding the immediacy of the showup and the result-neutral pre-identification                                                                     

instructions, there was a "very substantial likelihood of irreparable misidentification."                                                                                                    64  



                                                                                                                                                                            

                              The superior court's order provides an in-depth analysis of the estimator  



                                                                                                                                                                         

variables in Brigman's case.  The court found, for example, that "there is no suggestion  



                                                                                                                                                                                  

that the witness's stress level was particularly high[,] because he was not in any danger  



                                                                                                                                                                                                   

and his desire was to help the driver of the vehicle that had just crashed in front of him."  



                                                                                                                                                                                        

The court also found that, although the interaction between Jenkins and the driver was  



                                                                                                                                                                                                   

short, their encounter was face-to-face and in an area that was well-lit by a streetlight.  



                                                                                                                                                                                          

There were no weapons or unusual or distracting objects present, and the driver was not  



                                                                                                                                                                       

wearing a hat or other disguise.  The court noted that there was no issue of cross-racial  



                                                                                                                                                                                              

identification bias, as both Jenkins and the driver were white.  In addition, Jenkins, a  



                                                                                                                                                                                            

sixty-one-year-old man, was wearing his eyeglasses and was not under the influence of  



                                                                                                                                                                                           

alcohol or medication.  The court further found that Jenkins had acted responsibly by  



                                                                                                                                                                           

first checking on the driver of the vehicle and then calling 911 and providing a relatively  



                                                                                                                                           

detailed description.   The court noted that there were some discrepancies regarding  



                                                                                                                                                                                     

Jenkins's description of the driver's clothing and hair.  But the court found that these  



        64     See id. at 427.  



                                                                                         - 18 -                                                                  2724
  


----------------------- Page 19-----------------------

discrepancies  were  explainable,  that  they  did  not  undermine  the  reliability  of  the  

                                                                                                                                 



identification, and that these discrepancies could be understood and considered by the  

                                                                                                                                  



jury.  

          



                     In sum, after conducting a thorough analysis under Young of howand when  

                                                                                                                               



the showup occurred, and after analyzing the applicable estimator variables, the court  

                                                                                                                               



concluded that Brigman had failed to show that there was a very substantial likelihood  

                                                                                                                       



of irreparable misidentification, and thus the showup identification was sufficiently  

                                                                                                                     



reliable to be introduced into evidence.  

                                               



                     On  appeal,  Brigman  focuses  on  the  discrepancies  between  Jenkins's  

                                                                                                                        



description of the driver and what Brigman looked like at the showup.  According to  

                                                                                                                                    



Brigman,thesediscrepanciesweresignificantenough that thesuperior court should have  

                                                                                                                                



found the identification unreliable.  

                                                        



                     We disagree.  In his initial 911 call, Jenkins described the driver as a man,  

                                                                                                                                



likely  white,  with  black  hair,  gray  clothing,  and  a  zipped  hoodie.                                    Based  on  this  

                                                                                                                                 



description, Officer Fraize stopped Brigman, a white man with black hair and gray/dark  

                                                                                                                        



clothing.  It is true that Brigman was not wearing a hoodie, and we agree with Brigman  

                                                                                                                          



that  the  absence  of  a  hoodie  casts  some  doubt  on  the  reliability  of  Jenkins's  

                                                                                                                       



identification, and that this was a proper subject for cross-examination at trial.  But this  

                                                                                                                                  



one discrepancy does not defeat the superior court's conclusion that Brigman failed to  

                                                                                                            



 show  a  very  substantial likelihood  of  irreparable  misidentification,  given  the  other  

                                                                                                                              



 system and estimator variables at play in this case.  

                                                                                



                     Brigman also asserts that Jenkins misidentified Brigman's hair. According  

                                                                                                                       



to Brigman, Jenkins described the driver as having hair that was longer, curlier, and  

                                                                                                                                 



wavier than Brigman's.  But the transcript page that Brigman cites does not support this  

                                                                                                                                  



                                                              - 19 -                                                                  2724
  


----------------------- Page 20-----------------------

claim.   Instead, it appears that it was the                                                                                                                                 other  eyewitness who originally described the                                                                                                                                             



driver as having "shoulder-length" wavy hair.                                                                                                                                      



                                                          The record does, however, show that Jenkins himself acknowledged that  



his recollection of the driver's hair differed somewhat from the way Brigman's hair                                                                                                                                                                                                                                                                                



looked at the time of the showup.                                                                                                                 After Jenkins identified Brigman as the driver of the                                                                                                                                                                 



crashed vehicle, Jenkins noted that the driver's hair "wasn't messed up [like Brigman's]                                                                                                                                                                                                                                            



at the time."                                         But according to the record, Brigman was sweaty and nervous by the time                                                                                                                                                                                                                                     



of the showup and, as the superior court noted, there was a light rain or mist "which                                                                                                                                                                                                                                                                



could have altered the look of a person's hair." We therefore find no error in the superior                                                                                                                                                                                                                                                       



court's discounting of this supposed discrepancy.                                                                                                              



                                                          Ultimately,   under   Young,   it   is   the   defendant   who   bears   the   burden   of  



proving that the system variables and estimator variables applicable to the case give rise                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                65  

to a very substantial likelihood of misidentification.                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                            We find no error in the superior  



                                                                                                                                                                                                                        

court's conclusion that Brigman did not meet this burden.  



                                                                                

                              Conclusion  



                                                                                                                                                                                                                                                                                         

                                                          The judgment of the superior court is AFFIRMED.  



               65           Id.  



                                                                                                                                                                             - 20 -                                                                  2724
  

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