Gibbs v. Com., s. 85-CA-1964-M

• Decision Date: 07 November 1986
• Docket Number: 85-CA-2354-MR,Nos. 85-CA-1964-M,s. 85-CA-1964-M
• Citation: 723 S.W.2d 871
• Parties: Ricky GIBBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 871

723 S.W.2d 871

Ricky GIBBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 85-CA-1964-MR, 85-CA-2354-MR

Court of Appeals of Kentucky.

Nov. 7, 1986.

Discretionary Review Denied by

Supreme Court March 3, 1987.

Timothy T. Riddell, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Cicely Jaracz Lambert, Asst. Atty. Gen., Frankfort, for appellee.

Before CLAYTON, LESTER and MILLER, JJ.

CLAYTON, Judge.

Ricky Gibbs appeals from a final judgment of the Madison Circuit Court sentencing him to five years of imprisonment based upon his conviction for second-degree burglary and from a separate order of the same court denying his motion for new trial. On appeal, Gibbs argues that the trial court erred in 1) admitting into evidence his "mugshot," 2) excluding expert testimony on the unreliability of eyewitness identification, and 3) failing to grant his motion for new trial based upon newly discovered evidence.

On October 22, 1984, Joy Hagan returned to her apartment in Richmond, Kentucky, to find a young black male running out the front door. As he dashed past at a distance of approximately five feet, the startled Hagan was able to view his full face and profile. According to her testimony at trial, the man appeared to be a clean cut, muscular black male, approximately twenty years old with no facial hair. She also noticed at the time that he was wearing a tan coat beneath which he appeared to be hiding something. Thereafter, entering her apartment with her brother, Hagan discovered that $3,500 in jewelry was missing.

On October 25, 1984, Hagan was shown a photographic lineup of eight pictures out of which she identified Randall Williams as a black male standing outside her home the day of the burglary. On being shown a second lineup containing Ricky Gibbs' picture, Hagan identified the appellant as the man running from her apartment. A search warrant was obtained for his residence. While none of the missing jewelry was discovered upon execution of the warrant the tan coat described by Hagan was found in an upstairs bedroom.

Approximately a week later, at a preliminary hearing, Hagan again identified Ricky Gibbs. Although Gibbs' brother, Nathan Gibbs, was also present, Hagan did not believe him to be the man she saw as he was too tall, his hair was too long and his cheek bones were different.

At trial, appellant testified that on the day of the burglary, he was with his girlfriend, Alicia Ballew, the entire day. According to Gibbs, the burglary was actually committed by his brother, Nathan Gibbs, who had been paroled from his second imprisonment for burglary three days before. Allegedly, Nathan admitted this to Ricky, showing him a diamond ring and gold necklace taken from the apartment. This version of events is corroborated by Ballew, who testified that Ricky was with her the entire day on October 22, 1984, and that Nathan had admitted to her that he committed the burglary, showing her some stolen rings and earrings. Ballew added that Nathan had also told her that if questioned, he would say that Clark Bates had committed the crime.

Nathan Gibbs then took the witness stand. After admitting his prior burglary convictions, Nathan testified that on the day in question, he caught a ride with Clark Bates. Bates showed Nathan some jewelry he had been given by a girl. Nathan was then given one of the rings which he later gave to the appellant. Ricky Gibbs denies ever having received this ring. Although Nathan admitted that the tan jacket found in the search was his, he denied ever having committed the burglary or telling anyone that he had done so.

Following instructions and closing arguments, the jury returned a verdict of guilty recommending five years of imprisonment. One month later, on March 4, 1985, appellant filed a motion for a new trial. As a basis for the motion, it was alleged that after the trial, the appellant's eldest brother, Wayne Gibbs, approached him, telling Ricky that at about the time of the burglary, Nathan gave him a ring set with a light blue stone and warned him not to tell anyone. The ring was produced and placed in the custody of Ricky's trial attorney. The ring was subsequently identified by Hagan as being one stolen from her home. No other items of Hagan's jewelry were produced at trial. Trial counsel maintained by supporting affidavit that his diligent pre-trial investigation had failed to reveal this new evidence as Wayne Gibbs lived apart from Ricky and Nathan and was not fully aware of the nature of the charges pending against appellant prior to his trial. Along with the affidavits alleging these events, the avowal testimony of Dr. Reed and a report of a polygraphic examination were included at the hearing on the motion. Following a hearing, the motion was denied. Timely appeal was then taken to this Court.

I.

THE "MUG SHOT"

Prior to trial, Gibbs moved to suppress the use of his police photograph on the basis of both the police reference appearing on it and the distinctive combined frontal and profile views associated with police photographs. In response, the Commonwealth indicated that it did not intend to introduce the mug shots; but, if it did, the pictures would be cropped to delete the police reference. At trial, Gibbs' counsel, while cross-examining Joy Hagan about her identification of Randall Williams, attempted to introduce an unaltered mug shot of Williams. The Commonwealth objected indicating that all the photographs from the lineup would have to be introduced. Over the appellant's objection, all of the lineup photographs were introduced into evidence after the police references were deleted. No alteration was made, however, to the traditional front and profile view. As explanation for its decision to admit the photographs over appellant's objection, the trial court opined that appellant had opened the door by introducing the unaltered shot as the Commonwealth would not have otherwise attempted to introduce any of the photographs.

Gibbs now argues that introduction of the photograph denied him a fair trial. Under Redd v. Commonwealth, Ky.App., 591 S.W.2d 704 (1979), introduction of mug shots into evidence is permissible where the prosecution has a demonstrable need to introduce them, the photographs introduced do not imply that the defendant had a criminal record, and the manner in which they are introduced does not draw "particular attention to the source or implications of the photographs." Id. at 708 (citing United States v. Harrington, 490 F.2d 487 (2nd Cir.1973)). See Roberts v. Commonwealth, Ky., 350 S.W.2d 626 (1961). Looking to the manner and rationale for introducing the challenged photographs, we conclude that no error was occasioned by their introduction at trial.

Prior to the appellant's attempt to introduce the unaltered photograph of Williams, no effort was made by the Commonwealth to introduce any of the photographs. Obviously had the jury seen only Williams' photograph, without viewing those shown in both lineups, confusion would have resulted, as Williams' picture would not coincide with the jurors' courtroom view of Gibbs thus leading the jurors to conclude that Hagan had misidentified Gibbs.

Moreover, the photographs which were admitted had been partially altered to delete all police references nor was the appellant shown to be wearing a prison garb. While the better practice would have been to have further cropped the photographs to separate the juxtaposed full face and profile views, we cannot conclude that the prejudice resulting from their introduction outweighed the resulting probative value.

This is not a situation as in Redd where a prosecution witness testified that the photographs admitted were mug shots taken from past incidents or that the photographs had been assembled for investigation. Redd, supra at 708. Nor did the Commonwealth, as in Roberts, accompany the admission of the photographs with testimony of police officers as to appellant's bad reputation as a law abiding citizen. To the contrary, the introduction of the altered photographs was unaccompanied by any such suggestive commentary, was relevant to the critical question of Hagan's identification of the appellant and was necessitated by appellant's own attempt to introduce Williams' unaltered photograph.

II. EXPERT TESTIMONY REGARDING EYE WITNESS IDENTIFICATION

In his second issue on appeal, Gibbs argues that he was denied a meaningful defense as a result of the trial court's refusal to admit expert testimony regarding the unreliability of eyewitness identification. Had the appellant's expert, Dr. Reed, been permitted to testify, appellant maintains that the jury would have been informed of such specific psychological factors as "weapons focus," post-observation suggestion, cross-racial identification and the potentially inverse relationship between reliability of identification and the certainty with which a witness testifies to that identification.

Two difficulties confront the appellant in making this argument. First, such expert testimony has long been excluded by Kentucky courts as invading the province of the jury in assessing the credibility of witnesses. See Pankey v. Commonwealth, Ky., 485 S.W.2d 513 (1972). See also Evans v. Commonwealth, Ky., 702 S.W.2d 424 (1986) (instruction on eyewitness identification not required). Second, the appellant has failed to preserve the issue for appellate review regardless of the merits of his argument. See State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984); United States v. Smith, 736 F.2d 1103 (6th Cir.1984).

Prior to trial, appellant by counsel moved to suppress the eyewitness identification of Joy Hagan. Accompanying that motion was a companion motion entitled "Motion to Provide Funds for Expert Witness For Suppression Hearing" (our emphasis). By that motion, appellant specifically requested...