State v. Hubbard

• Decision Date: 30 April 2002
• Docket Number: No. 20000233.,20000233.
• Citation: 2002 UT 45,48 P.3d 953
• Parties: STATE of Utah, Plaintiff and Appellee, v. Darryl HUBBARD, Defendant and Appellant.
• Court: Utah Supreme Court

48 P.3d 953

2002 UT 45

STATE of Utah, Plaintiff and Appellee, v. Darryl HUBBARD, Defendant and Appellant.

No. 20000233.

Supreme Court of Utah.

April 30, 2002.

Janet Miller, Stephen R. McCaughey, Salt Lake City, for defendant.

Mark L. Shurtleff, Att'y Gen., Karen A. Klucznik, Asst' Att'y Gen., Salt Lake City, for plaintiff.

WILKINS, Justice.

¶ 1 Defendant Darryl Hubbard appeals his convictions of aggravated robbery, aggravated burglary, and aggravated assault. He argues that (1) the trial court should have allowed an expert witness to testify regarding the fallibility of eyewitness identification; (2) the trial court erred in denying his pretrial motion to suppress witness identification testimony because the pretrial photo array presented to the witnesses who identified him was impermissibly suggestive and unreliable and therefore violative of the due process clauses of the United States and Utah constitutions; and (3) the trial court erred in conducting voir dire of prospective jurors at sidebar out of the defendant's presence and off the record. We affirm.

FACTUAL BACKGROUND

¶ 2 We review the record facts in a light most favorable to the jury's verdict. E.g., State v. Evans, 2001 UT 22, ¶ 2, 20 P.3d 888; State v. Vargas, 2001 UT 5, ¶ 2, 20 P.3d 271. We present conflicting evidence only as necessary to understand issues raised on appeal. E.g., State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

¶ 3 On the evening of January 24, 1999, Jeffrey Gunderson and several guests were in the living room area of Gunderson's basement apartment smoking marijuana. Cheryl Moss, who was also in the apartment but not smoking marijuana, was in a back room drawing and listening to music. Gunderson and his guests heard a loud knock at the door. One guest, Ayza Wells, ascended the interior stairway of about ten stairs that led to the door to answer it. The person at the door identified himself as "Six Nine." Wells refused to open the door, and returned, stating that he didn't know anyone called "Six Nine." Gunderson then went to the door where the person again identified himself as "Six Nine." Even though Gunderson did not know anyone by the name of "Six Nine," he opened the door.

¶ 4 The assailant then forced his way into the apartment, wielding a handgun which he pointed at Gunderson, shooting him in the leg below the knee. Gunderson lost his balance and fell down the stairs to the living room area. The assailant descended the stairs, grabbed Gunderson by the hair, and placed the pistol to Gunderson's head. The assailant then demanded guns, drugs, and cash from two safes that Gunderson had in the apartment. In particular, the assailant stated he knew one safe was behind Gunderson's bar.

¶ 5 Having heard the gunshot, Moss entered the living room area carrying a knife. Upon seeing that the assailant was armed, however, Moss set the knife down on a bookshelf. Gunderson's guests took cover, hiding in various locations inside the apartment. The assailant threatened Moss at gunpoint and ordered her into the kitchen where he duct-taped her arms behind her back and ordered her to the floor. The assailant then again demanded access to the safes. ¶ 6 After returning to the living room, the assailant threatened the three guests, took an unloaded weapon from one of them, and repeated his demands regarding the safes. Moss retrieved keys for Gunderson who unlocked the safe behind the bar, and the assailant took the cash and marijuana inside. The assailant demanded more money. Gunderson removed his wallet and offered the money to the assailant, pleading with him not to shoot. The assailant took the money and then demanded access to the other safe. The assailant proceeded to drag Gunderson by the hair to the bedroom, but then left the bedroom and fled the apartment.

¶ 7 Within thirty minutes of the time the assailant fled, the police arrived. Gunderson and Moss told police that they had been attacked and robbed by an individual who identified himself as "Six Nine." Gunderson and Moss also described the assailant to police as a tall, African-American male of strong build, and of medium to light complexion, with a goatee-style beard. With this information Officer Merino obtained a photo from the Salt Lake County Sheriff's Office of a person who used the moniker "Six Nine," and whose photograph matched the description given by the victims. Merino prepared a photo array of six photographs: five photos of light-complected African-American men with goatee-style beards similar to defendant's beard, and defendant's photo.

¶ 8 Approximately three weeks after the incident, Officer Merino presented the photo array separately to Gunderson and Moss. Officer Merino met Gunderson and Moss in the parking area behind Gunderson's apartment. Officer Merino instructed Moss to stand near the apartment building, approximately fifty feet away, while he presented the photo array first to Gunderson. Officer Merino explained to Gunderson that he was going to show him six photos, that the assailant might or might not be pictured in one of the photos, that the hair and facial hair might be different, and that the lighting of the photo might alter the skin tone. Officer Merino further explained to Gunderson that he should look at all of the photos, without looking on the back of the photos where personal information was located, and then indicate if he recognized one of the photos as the assailant. Gunderson, immediately, and without equivocation, identified defendant as the assailant. Officer Merino also asked Gunderson to assign a numerical value from one to ten indicating his certainty, with ten being positively certain. Gunderson never assigned a numerical value, but stated instead, "I'm positive." Officer Merino then sent Gunderson to stand near the apartment building while Moss approached and looked at the photos. Merino instructed Moss as he instructed Gunderson. Moss immediately identified defendant. Moss indicated her certainty as seven on the same ten point scale.

¶ 9 Before trial, defendant moved to suppress the eyewitness identification testimony to be offered by Gunderson and Moss. This motion was denied. Defendant also moved to allow an expert witness to testify regarding the fallibility of eyewitness identification testimony. The district court held a hearing on September 2, 1999, at which counsel argued whether the testimony was admissible under Utah Rule of Evidence 702 and State v. Rimmasch, 775 P.2d 388 (Utah 1989). Both sides also argued whether a jury instruction would sufficiently educate the jury regarding common misconceptions about potential deficiencies of eyewitness identification. Furthermore, as part of the motion, defense counsel explained the following as the substance of the proposed expert witness testimony:

The expert testimony that defendant seeks to admit to the Court at trial in this matter pertains to research and theory concerning memory, the reporting of memory, and the variables known to influence memory and memory reports. The testimony is designed to provide scientific information that may assist the trier of fact in interpreting contested adjudicated facts; statements of witnesses as to who and what they saw and happened.¹

¶ 10 The district court denied defendant's motion. In denying the motion, the court noted that permitting expert testimony in this case was not "required or advisable," that instruction of the jury regarding problems with eyewitness identification is "best accomplished through instruction," and that if the court were to permit expert testimony, it "would have a significant tendency to cause the jury to abdicate its role as fact finder, at least with respect to any issues that must be decided based on eyewitness testimony."

¶ 11 The case proceeded to trial. During the jury selection process, the judge, prosecutor, and defense counsel discussed matters with prospective jurors at sidebar, without the defendant present. There is no evidence in the record that defendant objected to or opposed not being present at sidebar. During the trial, both Gunderson and Moss identified the defendant as their assailant. In instructing the jury, the trial court gave an extensive Long² instruction.³

¶ 12 The jury convicted defendant of aggravated robbery, aggravated assault, and aggravated burglary. Defendant appeals.

ANALYSIS

I. EXPERT EYEWITNESS IDENTIFICATION TESTIMONY

¶ 13 Defendant argues the trial court's exclusion of the proffered expert testimony regarding the dangers and fallibility of eyewitness identification testimony violated his rights to due process and to present a defense. The State counters that State v. Butterfield, 2001 UT 59, 27 P.3d 1133, specifically resolves this issue in the State's favor. We hold that the trial court did not abuse its discretion in disallowing the testimony of defendant's proposed expert witness regarding the fallibility of eyewitness identification.

¶ 14 "Whether expert testimony on the inherent deficiencies of eyewitness identification should be allowed is within the sound discretion of the trial court." Butterfield, 2001 UT 59 at ¶ 43, 27 P.3d 1133 (citing, inter alia, State v. Malmrose, 649 P.2d 56, 61 (Utah 1982)); see also State v. Griffin, 626 P.2d 478, 481 (Utah 1981). Because the admission of expert testimony on the reliability of eyewitness identification may not be improper in all instances, we noted parenthetically in Butterfield that the admission of eyewitness identification testimony is conditional. Butterfield, 2001 UT 59 at ¶ 43, 27 P.3d 1133 (quoting 31A Am.Jur.2d Expert and Opinion Evidence § 370 (1989)). We have not adopted a per se rule of inadmissibility of expert testimony regarding eyewitness identification. Instead, we recognize that whether to allow proffered expert testimony regarding eyewitness identification testimony is a matter best left to the trial court's discretion because of the trial court's superior position to judge the...