Jacobsen v. Commonwealth, No. 2011–SC–000108–MR.

• Decision Date: 11 September 2012
• Docket Number: No. 2011–SC–000108–MR.
• Citation: 376 S.W.3d 600
• Parties: Edward John JACOBSEN, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

376 S.W.3d 600

Edward John JACOBSEN, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000108–MR.

Supreme Court of Kentucky.

Aug. 23, 2012.

As Corrected Sept. 11, 2012.

Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, James Daryl Havey, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the court by Justice ABRAMSON.

Edward Jacobsen appeals as a matter of right from a Judgment of the Fayette Circuit Court convicting him, following a jury trial, of robbery in the first degree in violation of Kentucky Revised Statute (KRS) 515.020. The trial court sentenced Jacobsen, in accord with a second jury's findings and recommendations, to a term of twenty years in prison enhanced to thirty years by virtue of Jacobsen's status as a second-degree persistent felony offender (PFO). Jacobsen was accused and found guilty of having robbed at gun point the manager of a Cash Advance store on Versailles Road in Lexington. On appeal, Jacobsen contends that the trial court erred (1) by denying his motion to suppress eyewitness identification evidence; (2) by not allowing him during voir dire to inform the jury of the potential range of PFO enhanced penalties; (3) by denying his motion for a mistrial when, during voir dire, the Commonwealth suggested that Jacobsen had concealed evidence of the crime—the gun; (4) by denying his motion for a mistrial when, during its guilt-phase closing argument, the Commonwealth referred to scientific studies of which there was no evidence; and (5) by denying his motion for a new trial, not just a new penalty phase, when during the original penalty proceedings, the Commonwealth's improper “golden rule” argument necessitated a mistrial. Convinced that Jacobsen was fairly tried and properly sentenced, we affirm the trial court's Judgment.

RELEVANT FACTS

The manager of the Versailles Road Cash Advance store, Dena Fallon, testified that on September 5, 2008, at about 10:00 a.m., she was at work in the store by herself when an older man entered, came to the customer counter, and demanded the money from the cash drawer. He placed his hand on the counter, and Ms. Fallon realized that he was holding a gun, which he pointed at her abdomen. She gave him the money—a bit more than $500.00—and he then ordered her to lie face down on the floor and to count to twenty-five. Ms. Fallon counted to forty-five, she testified, to give the man plenty of time to leave, at which point she got up, locked the door, and called the police. To the responding officer she described the robber as a white male between sixty and seventy years old, not much taller than she is—she is about 5'4?—and about 160 to 170 pounds. He was wearing, she said, blue jeans and a long-sleeved red-and-blue flannel shirt over a grey T-shirt. He wore glasses with darkened lenses and a red baseball type cap. Ms. Fallon also described the gun as a black, small caliber semi-automatic.

The responding officer testified that Ms. Fallon was visibly shaken, but that after she had calmed down some, he left her and interviewed Lori Harris, the property manager for the strip mall where the Cash Advance store is located, and whose office was only a couple of doors away from Cash Advance. Harris told him that earlier that morning, between 9:30 and 10:00, she had seen an older man wearing a long-sleeved blue-and-maroon flannel shirt exit a white, dual-cab Chevrolet S–10 pickup truck and walk in the direction of the Cash Advance store. Her attention was drawn to the man because he parked in what seemed an odd part of the lot, well away from the only stores open at that time, and because his long-sleeved shirt seemed an odd choice for a very warm late summer morning. She was walking in the opposite direction, and they crossed paths next to each other. The man wore glasses and had on a grey T-shirt under his flannel shirt. A short time later she saw the same man walking along Versailles Road back toward his truck. A few minutes after that, after she had gone back to her office, she saw the man for a third time, this time as he passed just outside her window, again in the direction of the Cash Advance. He had put on a ball cap—Harris remembered it as blue—and had wrapped an elastic bandage around his left hand, which Harris thought peculiar. Almost immediately she saw the man for yet a fourth time, as he again passed her window, this time hurrying back toward his truck.

As property manager, Harris monitored the shopping center and its parking lots by means of some dozen surveillance cameras positioned on and around the property. She was thus able to provide the police with security videos showing a man in jeans and a flannel shirt entering the Cash Advance store, exiting it about thirty seconds later, and walking hurriedly to a white pickup truck. From those videos the police produced still images of the man and the truck and had those images broadcast on the local news. A day or so later, Jacobsen's former employer, Keith Taminga, called the Crime Stoppers' tip line and reported that the Cash Advance robber looked to him like Jacobsen, a former employee who Taminga believed had recently been involved in a theft from Taminga's business. Although the surveillance photosdid not clearly depict the robber's features, Taminga recognized Jacobsen's truck and reported that Jacobsen habitually wore long-sleeved flannel shirts. Based on this tip, the detective to whom the case had been assigned, Detective Andrew Cain, promptly prepared a six-person photo array that included a photo of Jacobsen and presented the array separately to Dena Fallon and to Lori Harris. Both women unhesitatingly picked out Jacobsen's photo as that of the Cash Advance robber.

Officers apprehended Jacobsen in February 2009. At the time of his arrest Jacobsen, who is five-feet-seven-inches tall, was sixty-two years old, weighed 140 pounds, and was driving a white Chevrolet S–10 pickup truck that belonged to him. He was indicted in March 2009 and was charged with first-degree robbery and with receiving stolen property, the latter charge stemming from the alleged theft of property from Keith Taminga. Prior to trial, the charges were severed, and the robbery charge was tried in March 2010. At trial Taminga testified regarding Jacobsen's use of a white Chevy truck and his habit of wearing long-sleeved flannel shirts. Fallon and Harris testified as noted above, and both identified Jacobsen in court as the man they had encountered during the morning of September 2, 2008.

Jacobsen presented an alibi defense. Three witnesses, friends of his, testified that on the day of the robbery he had been with them in Wellington, Kentucky, some sixty or seventy miles east of Lexington. Jacobsen also presented the testimony of Solomon Fulero, a PhD psychologist who specializes in the study of human memory. Dr. Fulero testified concerning factors bearing on the fallibility of eyewitness testimony. As noted, the jury rejected Jacobsen's defense and found him guilty of the Cash Advance robbery.

ANALYSIS

I. Jacobsen Was Not Entitled to Suppression of the Eyewitness Identifications.

Jacobsen's first contention on appeal is that because the photo array the detective presented to Fallon and Harris highlighted Jacobsen's photo and thus unduly suggested that it was the photo of the suspect, the women's identifications of him, both prior to trial and in court, were tainted and should have been suppressed. The trial court denied Jacobsen's suppression motion.

As Jacobsen correctly notes, the United States Supreme Court has held that a defendant's right to due process includes a

check on the admission of eyewitness identification [evidence], applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime. An identification infected by improper police influence ... is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.

Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 720, 181 L.Ed.2d 694 (2012). Confronted with a motion to suppress eyewitness identification evidence, therefore, the trial court has a two-fold task. First, it must determine whether the photo array (or other identification procedure employed by police) was unduly suggestive, and if so (but only if so) it must then determine whether the identification was nevertheless sufficiently reliable in view of the totality of the circumstances. Id.;Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). As with other suppression rulings, we review the trial court's findings of historical fact, if any, for clear error, but its ultimate application of the constitutional standards is a question of law which we review de novo. Stanton v. Commonwealth, 349 S.W.3d 914 (Ky.2011) (noting that ultimate question of confession's voluntariness reviewed de novo ); United States v. Wiseman, 172 F.3d 1196 (10th Cir.1999) (“[T]he ultimate question of whether trial and pretrial identification evidence infringed due process rights is reviewed de novo.”).

“The key to the first step,” we have observed, “is determining whether Appellant stood out of the lineup so much that the procedure was ‘unduly suggestive.’ ” Oakes v. Commonwealth, 320 S.W.3d 50, 57 (Ky...