Brown v. Com.

• Decision Date: 17 March 1978
• Citation: 564 S.W.2d 24
• Parties: Robert Lee BROWN and Kenneth Lloyd Hill, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 24

564 S.W.2d 24

Robert Lee BROWN and Kenneth Lloyd Hill, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 17, 1978.

Terrence R. Fitzgerald, Deputy Public Defender, Commonwealth of Kentucky, Louisville, for appellants.

Robert F. Stephens, Atty. Gen., Commonwealth of Kentucky, Mark F. Armstrong, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, for appellee.

Before COOPER, HOWARD and PARK, Judges.

PARK, Judge.

The appellants, Robert Lee Brown and Kenneth Lloyd Hill, were both convicted by a jury of robbery in the first degree (KRS 515.020), and each received a sentence of ten years imprisonment. Their appeal is based principally upon the trial court's failure to grant an evidentiary hearing on their motion to suppress evidence of eyewitness identification and evidence of incriminating statements made following their arrest. The Commonwealth concedes that the trial court's failure to conduct an evidentiary hearing on the suppression motions constituted error. The crucial questions on appeal are: (1) whether the judgments of convictions must be reversed, rather than remanded to the trial court with directions to conduct an evidentiary hearing on the issues raised by the suppression motions; and (2) what procedures should be followed on reversal or remand.

FACTUAL BACKGROUND

On the evening of November 17, 1975, two young black men robbed the McDonald's Restaurant on Dixie Highway in southern Jefferson County. One of the men threatened an employee, Rosalie Franklin, with a pistol. After clearing out the cash register, the two men fled on foot across an open field toward an apartment complex. As the two robbers fled from the restaurant, they were observed by five girls Approximately twenty minutes after the robbery, the police arrived at the Leslie Motel. Brown and Hill were arrested in a room at the Leslie Motel opposite the automobile followed by the girls.

who were seated in an automobile parked in the McDonald's parking lot. Suspecting that there had been a robbery, the girls drove toward the apartment complex. As the girls were entering the apartment complex, they saw the two young black men in an automobile leaving the apartment complex. The girls turned around and followed the automobile several miles to the Leslie Motel. The girls then telephoned the police, giving them the license number and description of the automobile which was parked at the Leslie Motel.

PHOTOGRAPH IDENTIFICATION ISSUE

On October 1, 1976, two of the girls who had followed the automobile to the Leslie Motel were interviewed in the office of the Commonwealth's Attorney. The two girls, Sherry Lineberry and Susan Scott, were both shown a group of seven mug shots of young black men. Both girls identified photographs of Brown and Hill as the two men whom they had seen fleeing the McDonald's Restaurant and whom they had observed leaving the apartment complex in the automobile which they followed to the Leslie Motel. At the trial of the case, both Lineberry and Scott again identified Brown and Hill as the two robbers. In addition, the Commonwealth introduced evidence of the identification made by the two girls on October 1, 1976, from the group of photographs.

The seven photographs shown Lineberry and Scott were mug shots from the files of the Jefferson County Police Department. In each photograph a board was suspended from around the neck of the individual. Each board contained information for identification purposes. In the case of Brown and Hill, each board contained the abbreviation "ROB" and the date "November 17, 1975." In the other five photographs, the boards did not contain the robbery date of November 17, 1975, nor were any two dates the same. Only one of the other five photographs contained the abbreviation "ROB." This court recently found that such information made a photograph "impermissibly suggestive" for identification purposes. Jones v. Commonwealth, Ky.App., 556 S.W.2d 918, 921 (1977). However, this court held that the photograph in question should not have been admitted into evidence because it was obtained as a direct result of an arrest which was patently illegal. That argument is not made concerning the photographs of Brown and Hill. Consequently, the Jones case is not directly in point, and we must consider the admissibility of evidence of the photographic identification of the two accused by Lineberry and Scott.

In recent years, it has been the vogue of both bench and bar to consider the admissibility of evidence of out-of-court identification solely as a question of federal constitutional law. Little or no consideration is given to whether evidence of an out-of-court identification would be admissible as a matter of state law. Unless an out-of-court identification is admissible under state law, it is unnecessary to reach the federal constitutional question. Therefore, we first consider whether evidence of the out-of-court photographic identification was admissible as a matter of Kentucky law.

For many years, it was the general rule in Kentucky that evidence of out-of-court identification of the accused was inadmissible at the subsequent trial of the accused. E. g. Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594 (1933). However, this line of cases was overruled in Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442 (1957). In the Colbert case, the court held that a witness could testify that he had made a prior out-of-court identification of the accused. Nevertheless, the court in the Colbert case held that it was error to permit a third person to testify that he heard or observed the witness make the out-of-court identification of the accused. In Preston v. Commonwealth, Ky., 406 S.W.2d 398, 29 A.L.R.3d 1387 (1966), cert. denied, 386 U.S. 920, 87 S.Ct. 886, 17 Evidence of a prior out-of-court identification is usually introduced for the purpose of corroborating the in-court identification of the accused by the witness. Preston v. Commonwealth, supra, 406 S.W.2d at 403; 4 Wigmore on Evidence, § 1130 (Chadbourn rev. 1972). Cf. Summitt v. Commonwealth, Ky., 550 S.W.2d 548, 550 (1977). Because of the courtroom setting itself and the influence of intervening events, an in-court identification of the accused may not have great testimonial force. On the other hand, a prior out-of-court identification may be much more reliable if made under circumstances reasonably free of improper influence at a time when the witness's memory is fresher. However, before a pre-trial identification may be admitted into evidence, the conditions and circumstances of the identification "should be fair and be free of influences and suggestions calculated to induce a fancied recognition." Colbert v. Commonwealth, supra, 306 S.W.2d at 828. If the circumstances surrounding the out-of-court identification are so suggestive that it possesses fewer indicia of reliability than the witness's in-court identification, evidence of the prior out-of-court identification has little value for the purpose of corroborating the in-court identification. As a corollary to the rule enunciated in the Colbert case, a witness is not competent to testify to his own prior out-of-court identification of the accused made under circumstances calculated to induce a fancied recognition of the accused. If the witness is not competent to testify to his own prior identification, the rule in the Preston case would not permit other persons to testify that the witness had made the prior out-of-court identification.

L.Ed.2d 792 (1967), the court extended the Colbert opinion. The court held that once a witness has testified that he made a prior out-of-court identification of the accused, the Commonwealth may introduce the testimony of other witnesses to corroborate the fact that the witness did make the prior out-of-court identification.

Evidence of a prior out-of-court identification is usually admitted for purposes of corroboration. Such evidence is not generally admissible under the doctrine enunciated in Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). The Jett rule permits the introduction of evidence of out-of-court statements which are inconsistent with the testimony of the witness at trial. The Jett rule does not permit the introduction of evidence of statements which are consistent with the testimony of the witness at trial. Lynch v. Commonwealth, Ky., 472 S.W.2d 263 (1971).

The identification of the photographs of Brown and Hill by the witnesses, Lineberry and Scott, was made on October 1, 1976, almost a year after the robbery. Lineberry and Scott testified at trial on February 2, 1977. Consequently, it is difficult to believe that the witnesses' recollection of the robbers was much fresher on the date of the photographic identification than it was at the date of trial. Even more important, the photographs of Brown and Hill both bore the date of the robbery, November 17, 1975, and both photographs bore the legend "ROB." Any person of ordinary intelligence would conclude that the persons in these two photographs had been arrested for robbery on the very date of the McDonald's Restaurant robbery. None of the other five photographs shown Lineberry and Scott contained a date close to November 17, 1975, and only one of the other photographs contained the legend "ROB." The photographs clearly suggested that Brown and Hill should be identified as the persons committing the McDonald's restaurant robbery.

There was absolutely no necessity for using such suggestive photographs. If no other photographs were available, then the identification material on each photograph could have been obscured by tape or simply cut off. Because the identification legends on the photographs of Brown and Hill were unnecessarily and unduly suggestive, and because the identification of the photographs was made by Lineberry and Scott so many months after the robbery, we conclude Although evidence of the out-of-court...