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State v. Moore

Supreme Court of Idaho

November 28, 2018

STATE OF IDAHO, Plaintiff-Respondent,
STEVEN MICHAEL MOORE, Defendant-Appellant.

          Appeal from the District Court of the First Judicial District of the State of Idaho, Bonner County, Hon. Barbara A. Buchanan, District Judge.

         The judgment of the district court is affirmed.

          Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Kimberly A. Coster argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. John McKinney argued.

          HORTON, JUSTICE.

         Steven Michael Moore appeals the district court's decision denying his motion to suppress his identification by an eyewitness. The district court found that law enforcement had engaged in a suggestive identification procedure but concluded that the identification was nonetheless reliable under the five-factor reliability test first articulated by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972). Moore argues that the district court should have suppressed the identification because the district court's findings regarding several of the reliability factors were not supported by substantial and competent evidence. We affirm.


         The eyewitness whose identification is at issue is a twelve-year-old boy, B.K. On May 6, 2016, B.K. was riding an all-terrain vehicle (ATV) when he realized that he was being followed by a pickup. After B.K. pulled into his driveway, the pickup followed him into the driveway and intentionally rammed the ATV while B.K. was stilled seated on it. Although he did not exit the pickup, the male driver threatened B.K., saying "If I see any f***bags like you driving fast on my road again, I will shoot and kill you with a bullet." The pickup then left. The Bonner County Sheriff's Office was notified and Patrol Deputy Kempton responded to the scene.

         B.K. described the driver of the pickup as "between 50 and 70 years old, a full head of gray hair, a thick gray and white mustache, medium build, dirty teeth," and smelling of cigarette smoke. B.K. described the vehicle as a "dark blue older truck with a matching canopy." B.K. told police that he would be able to identify the perpetrator and his truck if he saw them again.

         After some investigation the following day, Kempton suspected that Moore might have been involved in the incident. Using the computer in her patrol car, she obtained Moore's driver's license photograph. She forwarded the color photograph to Sergeant Cotter who was closer to B.K.'s home. Cotter went to B.K.'s home, where B.K. and his stepfather were standing in the driveway. Cotter told them that he had a picture for B.K. to look at and showed B.K. Moore's driver's license photograph on his in-car computer. Within seconds, B.K. identified Moore as the driver from the incident the preceding day. When Cotter asked B.K. if he was sure of the identification, B.K. responded that he was positive. Moore was then arrested.

         B.K. left town to visit his father for the summer, returning in late July. On July 29, 2016, Kempton went to B.K.'s home and showed B.K. a "six-pack," i.e., a photographic array consisting of six black and white booking photographs, two of which (including Moore's) bore, in small letters along the bottom of the photograph, the words "Bonner County Sheriff's Office" and a booking number. Before showing B.K. the photographic array, Kempton told B.K. that the line-up had six people matching his description of the pickup driver, that the driver may or may not be in the line-up, and that if B.K. saw somebody that he thought was the driver, to initial the photograph. B.K. chose the photograph of Steven Moore within seconds, and he placed his initials on the photograph.

         Moore moved to suppress B.K.'s identification of him as the driver of the vehicle. At the suppression hearing, based upon the prosecutor's stipulation, the district court found that Cotter's use of the single photograph was impermissibly suggestive. The district court then evaluated the reliability of B.K.'s identification in light of this Court's decisions in State v. Hoisington, 104 Idaho 153, 657 P.2d 1362 (1983), and State v. Almaraz, 154 Idaho 584, 301 P.3d 242 (2013). The district court concluded that the reliability of B.K.'s identification outweighed the suggestive aspects of the identification procedure.

         Moore entered an Alford[1] plea to attempted aggravated assault in which he reserved the right to appeal the district court's order denying his motion to suppress. The district court sentenced Moore to two years' imprisonment, with one year fixed, and suspended the sentence, placing Moore on probation for two years. Moore timely appealed from the judgment of conviction.


         "The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, the Court accepts the trial court's findings of fact that are supported by substantial evidence, but freely reviews the application of constitutional principles to the facts as found." State v. Page, 140 Idaho 841, 843, 103 P.3d 454, 456 (2004). "Substantial, competent evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Doe Children, 163 Idaho 536, 538, 415 P.3d 945, 947 (2018) (quoting Idaho Dep't of Health & Welfare v. Doe (2015-01), 158 Idaho 764, 767, 351 P.3d 1222, 1225 (2015)).

         III. ...

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