State v. Lujan

2015 UT App 199

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
MANUEL ANTONIO LUJAN,
Defendant and Appellant.

Memorandum Decision
No. 20131166-CA
Filed August 6, 2015

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 121910892

Nathalie S. Skibine and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE KATE A. TOOMEY concurred. JUDGE JOHN A.
PEARCE dissented, with opinion.

ORME, Judge:

¶1 Defendant Manuel Antonio Lujan appeals his conviction
of aggravated robbery, a first degree felony under section 76-6-
302 of the Utah Code. Because we determine that the trial court
erroneously admitted unreliable eyewitness testimony, we
reverse and remand for a new trial.

¶2 Early one November morning, a man could not sleep, so
he got out of bed and went outside. He decided to get his car
ready for an upcoming safety inspection. It was while the man
was seated inside his car in his driveway that he came face-to-
face with a robber. The man described the robber as ‚Spanish‛
 State v. Lujan

and as wearing a black leather jacket and beanie. The robber had
black and white ‚longish hair,‛ which was straight and poked
out of the beanie to ‚mid-ear length.‛ The man ‚definitely‛
remembered the robber’s hair.

¶3 The robber opened the man’s driver-side door, squatted
next to the seat, and asked the man, ‚Why you following me?‛
The robber stood, and the man saw him reach for what appeared
to be the handle of a gun or a knife. The man was afraid he
might be stabbed or shot. Wanting to return to the safety of his
house, the man stood, nearly touching the robber, who was
about his same height. He slowly worked his way around the
robber and around the car and ran to his house. The robber
drove off in the man’s car, and the man told his brother to call
the police, which he did. Officers soon arrived.

¶4 The man’s car had a fluid leak, and officers were able to
follow a trail of fluid and recover the abandoned car a few blocks
away, near an elementary school. A K9 unit was called, and the
dog appeared to ‚pick*] up on a track of the person that they
*were+ looking for‛ at the walkway gate of the school. The dog
pulled the officers through the gate and toward ‚some portable
or relocatable classrooms.‛ At that point, some officers ‚kind of
split‛ from the K9 unit, and one of those officers had a ‚gut
feeling‛ to check an air conditioning unit outside the school,
even though the dog was focused elsewhere. Officers found
Defendant inside the air conditioning unit, and he told them
‚something like somebody is following me, somebody is out to
get me.‛

¶5 Defendant is Hispanic, and he had closely-shaven hair
and a goatee when the police found him. He was wearing a
black beanie. Officers also testified that he was wearing a black
jacket, but no jacket appeared in Defendant’s booking photo,
was listed on the jail property list, or was produced at trial.

¶6 Police contacted the man whose car had been stolen and
told him that they had a suspect. They brought the man to the

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school and asked if he could identify Defendant, who stood
handcuffed in the dark, the only non-officer present, illuminated
by the headlights of police cars. The man identified Defendant as
the robber.

¶7 After being arrested and charged, Defendant requested a
lineup, which the trial court granted. At the lineup, the man was
unable to positively identify anyone as the robber. He did
indicate that Defendant and another man looked familiar, but he
was unsure whether either was the robber.

¶8 At the preliminary hearing, the man was asked to identify
the robber, and he pointed to Defendant. As Defendant observes,
he ‚was the only defendant sitting at counsel table and the only
realistic choice.‛

¶9 Defendant moved to exclude evidence of the show-up
and in-court identifications. The motion was denied, Defendant
was convicted as charged, and he now appeals. The sole issue
raised on appeal is whether the trial court erred when it denied
Defendant’s motion to suppress the identifications. We conclude
that it did.

¶10 In State v. Ramirez, 817 P.2d 774 (Utah 1991), the Utah
Supreme Court revised and clarified the protocol for courts to
use in analyzing the admissibility of eyewitness identifications. 1

1. We decide this case within the framework established by State
v. Ramirez, 817 P.2d 774 (Utah 1991). We have every reason to
believe, however, that Ramirez must be revisited. See Anne E.
Whitehead, Note, State v. Ramirez: Strengthening Utah's Standard
for Admitting Eyewitness Identification Evidence, 1992 Utah L. Rev.
647, 689 (1992) (generally approving of Ramirez but recognizing
that it ‚is not without flaws‛ because ‚the court’s conclusion
seems incongruous with the results of its application of the
reliability analysis, leaving uncertain the future impact of the
new Utah analytical framework‛). Aside from any flaws
(continued…)

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 State v. Lujan

(…continued)
inherent in the Ramirez analysis, scientific and legal research
regarding the reliability of eyewitness identifications has
progressed significantly in the last twenty-four years. See
generally National Research Council of the National Academies,
Identifying the Culprit: Assessing Eyewitness Identification 11–12
(2014).
Before Ramirez, the Utah Supreme Court first took an in-
depth look at the potential shortcomings of eyewitness
identifications in State v. Long, 721 P.2d 483 (Utah 1986). In Long,
the Court accepted the invitation to ‚either abandon any pretext
of requiring a cautionary eyewitness instruction or make the
requirement meaningful‛ by deciding ‚to follow the latter
course.‛ Id. at 487. The Court did this by ‚abandon[ing its]
discretionary approach to cautionary jury instructions and
direct[ing] that in cases tried from th[at] date forward, trial
courts shall give such an instruction whenever eyewitness
identification is a central issue in a case and such an instruction
is requested by the defense.‛ Id. at 492.
Then, after Ramirez, the Court considered another aspect
of cases involving eyewitness identifications—expert testimony.
In State v. Butterfield, 2001 UT 59, 27 P.3d 1133, the Court
affirmed a trial court’s exclusion of an expert witness because
the trial court had found that the proposed expert testimony
‚did not deal with the specific facts from *that+ case but rather
would constitute a lecture to the jury about how it should judge
the evidence.‛ Id. ¶ 44 (internal quotation marks omitted). The
issue was revisited in State v. Hubbard, 2002 UT 45, ¶ 14, 48 P.3d
953. In Hubbard, while leaving Butterfield untouched, the Court
did invite trial courts ‚to specifically tailor instructions other
than those offered in Long that address the deficiencies inherent
in eyewitness identification.‛ Id. ¶ 20.
But in State v. Clopten, 2009 UT 84, 223 P.3d 1103, the
Court recognized that its ‚previous holdings ha[d] created a de
facto presumption against the admission of eyewitness expert
testimony, despite persuasive research that such testimony is the
(continued…)

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 State v. Lujan

See id. at 779, 781–82. The Utah Supreme Court indicated that
such clarification was necessary because ‚the scientific literature
. . . ‘is replete with empirical studies documenting the
unreliability of eyewitness identification.’‛ Id. at 779 (quoting
State v. Long, 721 P.2d 483, 488 (Utah 1986)). This led the Court
‚to comment that ‘*p+erhaps it is precisely because jurors do not
appreciate the fallibility of eyewitness testimony that they give
such testimony great weight.’‛ Id. at 780 (alteration in original)
(quoting Long, 721 P.2d at 490). Thus, Utah applies a more
stringent standard in making reliability determinations than that
employed in the federal system. Id. at 784. Compare Neil v.
Biggers, 409 U.S. 188, 199–200 (1972) (indicating that ‚the factors
to be considered in evaluating the likelihood of misidentification

(…continued)
most effective way to educate juries about the possibility of
mistaken identification.‛ Id. ¶ 30. The Court sought to change
this by announcing ‚that the testimony of a qualified expert
regarding factors that have been shown to contribute to
inaccurate eyewitness identifications should be admitted
whenever it meets the requirements of rule 702 of the Utah Rules
of Evidence.‛ Id. The Court ‚expect[ed] this application of rule
702 [to] result in the liberal and routine admission of eyewitness
expert testimony.‛ Id.
While Utah jurisprudence now better recognizes the
problematic nature of eyewitness identification, Ramirez remains
the standard by which courts must evaluate the admissibility of
this evidence. It is a standard that does not accurately reflect the
changed views about handling this problematic evidence. And
the disconnect between the legal analysis in Ramirez and its
outcome makes it an unreliable tool for resolving particular
cases, as shown by the two opinions in this case. All of this,
taken together, indicates that it is time for our Supreme Court to
reconsider Ramirez, a proposition with which the dissent agrees.
See infra ¶ 21.

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 State v. Lujan

include the opportunity of the witness to view the criminal at the
time of the crime, the witness’[s] degree of attention, the
accuracy of the witness’[s] prior description of the criminal, the
level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the
confrontation‛), and Stovall v. Denno, 388 U.S. 293, 302 (1967)
(focusing on whether an eyewitness confrontation was ‚so
unnecessarily suggestive and conducive to irreparable mistaken
identification that [defendant] was denied due process of law‛),
with Ramirez, 817 P.2d at 781 (listing factors that are ‚generally
comparable to the Biggers factors‛ but ‚more precisely define the
focus of the relevant inquiry,‛ and identifying the ‚ultimate
question to be determined [as] whether, under the totality of the
circumstances, the identification was reliable‛).

¶11 In Ramirez, the Court set forth five factors that must be
considered when analyzing the reliability of an eyewitness
identification: (1) opportunity to view, (2) degree of attention, (3)
capacity to observe, (4) spontaneity and consistency, and (5)
nature of the event. Ramirez, 817 P.2d at 781. The first factor, the
opportunity of the witness to view the actor during the event,
includes (but is not limited to) considering the length of time the
witness viewed the actor, the distance between the witness and
the actor, whether the witness could view the actor’s face, the
lighting or lack of it, and whether there were distracting noises
or activity during the observation. Id. at 782. The second factor
considers the witness’s degree of attention to the actor. Id. at 781,
783. The third factor, whether the witness had the capacity to
observe the actor during the event, includes considering whether
the witness’s capacity to observe was impaired by stress or
fright, personal motivations, biases, prejudices, uncorrected
visual defects, fatigue, injury, drugs, or alcohol. Id. at 783. The
next factor, whether the witness’s identification was made
spontaneously and remained consistent thereafter or whether it
was a product of suggestion, includes considering the length of
time that passed between the witness’s observation at the time of
the event and the identification of the defendant, the witness’s
mental capacity and state of mind at the time of the

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identification, the witness’s exposure to information from other
sources, instances when the witness failed to identify the
defendant, instances when the witness gave descriptions that
were inconsistent with the defendant, and the circumstances
under which the defendant was presented to the witness for
identification. Id. And the final factor, the nature of the event and
the likelihood that the witness would perceive, remember, and
relate it correctly, includes considering whether the event was an
ordinary one in the mind of the witness and whether the race of
the actor was the same as the witness. Id. at 781.

¶12 The Ramirez court considered the first four factors in
detail and concluded that it was ‚an extremely close case.‛ Id. at
784. The Supreme Court was particularly troubled by the
‚blatant suggestiveness of the showup,‛ where Ramirez was
identified in a very similar fashion to the way Defendant was
here—Ramirez ‚was the only person at the showup who was not
a police officer,‛ he ‚stood with his hands cuffed,‛ and the
‚headlights of several police cars were trained on him.‛ Id. The
Court was also concerned with the ‚differences in racial
characteristics between‛ the eyewitness and Ramirez. Id. The
Court determined, however, that ‚because the identification was
based principally on the eyes, physical size, and clothing, these
racial factors may have been of relatively little importance.‛ Id.

¶13 The same factors that led the Supreme Court to conclude
that Ramirez was ‚an extremely close case‛ are present here. See
id. The show-up was conducted in almost identical fashion.
Furthermore, the man who identified Defendant is Native
American and Defendant is Hispanic. But unlike in Ramirez, the
identification was not confined to the eyes, physical size, and
clothing of Defendant. Instead, the State makes a point of the fact
that the robber’s entire, unobscured ‚face was about ten inches
from‛ the man’s when the robber first crouched down next to
the car. Thus ‚racial factors‛ are more significant here than they
were in Ramirez. Cf. id. at 776, 784 (noting that ‚racial factors may
have been of relatively little importance‛ when eyewitness
identification was based on the defendant’s eyes, physical size,

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and clothing, and the eyewitness did not have the opportunity to
view the defendant’s entire face).

¶14 This case also presents additional indications of
unreliability. For instance, the man failed to identify Defendant
at the lineup, which is an important consideration under the
fourth Ramirez factor. See id. at 783. Moreover, the man’s original
description of the robber omitted any mention of facial hair and
included a definite recollection of long, straight hair. In contrast,
Defendant had a goatee and a shaved head, both of which are
features that seem hard to miss at a distance of ten inches, and
the man did not miss the shaved head because it was covered
with a beanie—he ‚definitely‛ remembered hair protruding well
below the beanie.

¶15 If Ramirez was an extremely close call, we are confident
that here we can ‚say that *the man+’s testimony is legally
insufficient when considered in light of the other circumstances
to warrant a preliminary finding of reliability and, therefore,
admissibility.‛ See id. at 784. But our inquiry does not end there.
We must also consider whether Defendant suffered prejudice as
a result of the trial court admitting the identifications.

¶16 We agree with Defendant that the State bears the burden
of convincing us that the improperly admitted eyewitness
identifications were harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 24 (1967) (‚[B]efore a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt.‛).2 The State has not met this burden.

2. We recognize that State v. Ramirez, 817 P.2d 774 (Utah 1991),
was primarily concerned with an alleged due process violation
under the Utah Constitution. Id. at 781. See Utah Const. art. I, § 7.
Utah’s approach ‚is certainly as stringent as, if not more
stringent than, the federal analysis,‛ but there is no reason to
(continued…)

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 State v. Lujan

¶17 For us to determine that the trial court’s error was
harmless beyond a reasonable doubt, we must consider ‚the
importance of the witness’[s] testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence
of evidence co[rro]borating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.‛ State v. Villarreal, 889 P.2d 419, 425–26 (Utah
1995) (citation and internal quotation marks omitted). When the
man’s identifications of Defendant are removed, the State’s case
is severely weakened.

¶18 Evidence supporting the State’s case includes the facts
that Defendant was wearing a beanie and a jacket when found
and that he is Hispanic, which jurors might conclude matched
the man’s description of a ‚Spanish‛ robber. The State
recognizes that its strongest piece of evidence, aside from the
eyewitness identifications, albeit with their significant
descriptive discrepancies, was Defendant’s comment to police
about someone following him—a comment similar to the
question posed by the robber to the man, ‚Why you following
me?‛ But without the identifications, the jurors would likely
have found very significant the man’s initial description of the
robber—a description that lacked a goatee and included long
black and white hair—and the evidence that a trained police dog
following the suspect’s scent pulled officers toward portable
classrooms at the elementary school, while other officers veered
off from the K9 unit and later found Defendant curled up in an
air conditioning unit.

(…continued)
assume our constitution would impose a different standard of
review for those few circumstances where our constitution is
violated but the federal constitution is not. Ramirez, 817 P.2d at
784. See U.S. Const. amend. XIV, § 1.

20131166-CA 9 2015 UT App 199
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¶19 When the eyewitness testimony is taken away, the State
loses its strongest evidence against Defendant, and we cannot
say that the trial court’s error in admitting the unreliable
eyewitness identifications was harmless beyond a reasonable
doubt. We accordingly vacate Defendant’s conviction and
remand for a new trial.

PEARCE, Judge (dissenting):

¶20 I dissent.

¶21 I agree with the majority that the time may have arrived
for the Utah Supreme Court to revisit its holding in State v.
Ramirez, 817 P.2d 774 (Utah 1991). But so long as Ramirez
remains good law, we are duty-bound to apply it. I cannot
squint at Ramirez’s holding in a way that permits me to see how
the identification testimony offered in this case is less reliable
than the testimony the Ramirez court deemed admissible.
Ramirez identified five factors a court must consider in assessing
the reliability of eyewitness testimony. In almost all respects, the
showup involving Defendant in this case was substantially less
troublesome than that the Ramirez court approved.

¶22 The first Ramirez factor centers on the ‚opportunity of the
witness to view the actor during the event.‛ Id. at 782. This
includes consideration of how long the witness saw the actor, the
distance between them, the lighting, whether the witness could
view the actor’s face, and whether there were distracting
circumstances that would affect the witness’s ability to see the
actor. Id.

¶23 In Ramirez, the witness (Wilson) testified at various times
that he had seen the actor for either a second, a few seconds, or a
minute or longer. Wilson also testified that the actor was about
ten feet away from him; other witnesses described the distance
as being as much as thirty feet away. Wilson testified that the

20131166-CA 10 2015 UT App 199
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actor was crouched at the end of a building and was wearing a
mask over the lower part of his face. Wilson conceded that he
could not see the actor’s eyes clearly, but he ‚could see enough
to know‛ they were ‚small.‛ Id. Testimony varied as to whether
the lighting was good or whether shadows shrouded the actor.
Id. at 782–83.

¶24 Here, the trial court found that the witness viewed
Defendant for several seconds when they were face to face in the
car’s open doorway. They were less than a foot apart, and the
area was lit by two street lamps, a porch light, a neighbor’s
floodlight, and the car’s headlights, as well as the car’s overhead
dome light and lighted dashboard. Defendant’s face was
uncovered. In all relevant ways, with the possible exception of
the duration of the observation, the witness’s opportunity to
view Defendant was superior to the observation Ramirez
considered.

¶25 The second Ramirez factor examines the witness’s degree
of attention to the actor. Id. at 783. In Ramirez, Wilson was
accosted by two men: Ramirez, who wielded a firearm, and a
second man carrying a pipe. Wilson was struck with the pipe
before he was even aware of Ramirez. While Wilson became
aware of Ramirez’s presence, the ‚pipe man‛ continued to
threaten and swing the pipe at Wilson. In contrast, here, the
witness was alone with Defendant. After observing Defendant
for several seconds, the witness thought that the way Defendant
moved his hand was suggestive of having a weapon. The
witness began to get out of the car and negotiate his way around
Defendant to escape the situation. Although concern over the
potential possession of a weapon by Defendant may have
distracted the witness, it remains a far cry from the distractions
Wilson faced.

¶26 The third Ramirez factor looks at the witness’s capacity to
observe the event, including ‚whether the witness’s capacity to
observe was impaired by stress or fright at the time of the
observation, by personal motivations, biases, or prejudices, by

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 State v. Lujan

uncorrected visual defects, or by fatigue, injury, drugs or
alcohol.‛ State v. Ramirez, 817 P.2d 774, 783 (Utah 1991). The
Ramirez court considered that Wilson had been struck by a pipe
and was facing a gun pointed at him by a masked man while the
assailant continued to swing the pipe and threaten him. The
supreme court concluded that ‚it was reasonable to assume that
Wilson experienced a heightened degree of stress.‛ Id. Although
the witness here was undoubtedly startled by the presence of a
stranger in his car at 3:30 a.m., there was no evidence before the
trial court that this impaired the witness’s capacity to observe
Defendant. Nor was there any evidence that injury, drugs, or
alcohol may have impaired the witness.

¶27 The fourth Ramirez factor considers whether the witness’s
identification was made spontaneously and remained consistent.
Id. It also examines whether the identification was the ‚product
of suggestion.‛ Id. Ramirez instructs that trial courts should
consider a variety of factors, including the amount of time
between observation and identification, the witness’s mental
capacity and state of mind at the time of the identification, the
witness’s exposure to information from other sources, instances
when the witness failed to identify the defendant, instances
when the witness gave inconsistencies in the description of the
defendant, and the circumstances under which the defendant
was presented to the witness for identification. See id.

¶28 In Ramirez, the showup occurred less than an hour after
the event and the court concluded that nothing in the record
suggested that Wilson’s mental capacity or state of mind
influenced the identification. Wilson was aware that one of the
other witnesses had not identified Ramirez as the gunman but
was otherwise not exposed to other identifications or opinions.
The supreme court noted that Wilson’s descriptions had varied
in some details, such as whether Ramirez had worn a hat or
sported tattoos. Id. at 784.

¶29 In this matter, the showup took place thirty-five minutes
after the robbery. There is no indication in the record that the

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witness had been influenced by additional information.
However, as the majority ably describes, there exist a number of
concerns with the consistency of the witness’s descriptions of
Defendant. Notably, at a subsequent lineup, the witness
identified both Defendant and another man as persons who
might have stolen his car. Moreover, the witness originally
omitted any mention of Defendant’s facial hair and said that the
robber had long, straight hair. Defendant had a goatee and was
bald. The discrepancies in the witness’s identification present the
only way in which this matter could be considered a better
candidate for reversal than Ramirez. However, in light of the
myriad other ways in which the testimony in Ramirez appears
more unreliable than that at issue here, I cannot conclude that
these discrepancies are enough to pull this case from Ramirez’s
reach.

¶30 Ramirez also examined whether Wilson’s identification of
Ramirez was the product of suggestion by looking at the
procedures the showup employed. The identification occurred at
night. Id. Prior to the showup, police officers remarked to Wilson
that they had apprehended someone who fit the description of
one of the robbers. Ramirez, the only person involved in the
showup who was not a police officer, was handcuffed to a chain-
link fence illuminated by the headlamps of police cars. Wilson
identified Ramirez from the back seat of a police vehicle. Here,
Defendant was similarly cuffed and lit by headlights. Defendant
was also the only person at the showup who was not a law
enforcement officer.

¶31 I concur with the majority when it echoes the Ramirez
court’s conclusion that ‚*t+he blatant suggestiveness of the
showup is troublesome.‛ 817 P.2d 774, 784 (Utah 1991).
However, even after acknowledging the troublesome nature of
the showup, as well as Wilson’s inability to see Ramirez’s face
(in part because Ramirez was wearing a mask), Wilson’s
changing testimony about whether Ramirez wore a hat, and the
distraction caused by another assailant wielding a pipe, the
Ramirez court found that Wilson’s identification testimony was

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sufficiently reliable to be admissible. Id. at 782–84. Although it is
far from the most satisfying result, if the testimony Wilson
offered in Ramirez cleared the bar, so too must the testimony the
witness offered in this matter.

¶32 For these reasons, I dissent.

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