State v. Barnes

• Decision Date: 15 June 2009
• Docket Number: No. 33977.,33977.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Samuel Aaron BARNES, Defendant-Appellant.
• Court: Idaho Court of Appeals

212 P.3d 1017

147 Idaho 587

STATE of Idaho, Plaintiff-Respondent, v. Samuel Aaron BARNES, Defendant-Appellant.

No. 33977.

Court of Appeals of Idaho.

June 15, 2009.

Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent.

GRATTON, Judge.

Samuel Aaron Barnes appeals from the judgment of conviction entered upon a jury verdict finding him guilty of burglary and petit theft. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Barnes' girlfriend (S.K.) was a Subway restaurant employee. Barnes regularly visited S.K. during her shifts. S.K. had been given the security codes to both the alarm system and the safe. During one of her shifts a key to the restaurant was discovered missing. At approximately 5:30 a.m., on July 17, 2006, an individual entered the Subway while the store was closed. The individual gained access through the back door by using the security code to disarm the alarm system. The individual also used the security code to the safe and took over six hundred dollars. Six video cameras captured the entry and actions within the restaurant. The individual was wearing a mask and a glove on his right hand; however, he did not pull the mask over his face until after entering the security code into the key pad at the back door. Law enforcement officers showed the videotape and still images from the videotape to several Subway employees, some of whom identified the individual in the images as Barnes. Barnes was charged with burglary, Idaho Code § 18-1401, and petit theft, I.C. §§ 18-2403(3), 2407(2). A jury found Barnes guilty on both charges. This appeal followed.

II. ANALYSIS

Barnes raises several issues on appeal. First, Barnes claims that the district court erred by allowing lay witnesses to testify as to the identity of the individual captured on videotape. Second, Barnes claims that the district court erred by allowing a witness to testify about statements the witness made to police. Third, Barnes claims that the prosecutor committed misconduct by eliciting testimony as to Barnes' guilt and character. Finally, Barnes argues that the cumulative effect of these errors deprived Barnes of a fair trial.

A. Security Videotape Identification Testimony.

Prior to trial, the district court held that, subject to receipt of proper foundation for admission of the videotape, witnesses would be allowed to state their opinion as to the identity of the person depicted. The court noted that videotapes are within the definition of photographs, which are admissible if fairly representative and not simply related to a collateral issue. Idaho Rules of Evidence 1001 and 1004. The court stated that I.R.E. 701 permits a lay witness to express an opinion if rationally based upon their perception and helpful to a determination of a material fact. The court found that the testimony would be helpful to the determination of an ultimate issue in the matter, the identification of the perpetrator, and, while prejudicial to the defendant if identified, not unfairly prejudicial. The court rejected Barnes' objection that, pursuant to I.R.E. 403, the testimony was not relevant because it was for the jury to determine the identity of the individual on the tape.

After the first trial witness testified, Barnes again raised the issue and asked the court to revisit its prior ruling. Barnes cited State v. Avelar, 124 Idaho 317, 859 P.2d 353 (Ct.App.1993) and I.R.E. 401 and argued that the identification of an individual from an image available to the jury is for the jury, not lay witness opinion testimony. The court again overruled the objection and held that the issue went to the weight, not the admissibility, of the testimony. The court noted that the individuals called to testify were familiar with the defendant. The court also stated that persons familiar with an individual may have different perspectives than someone looking at an image of an unfamiliar person, stating:

And I think generally individuals identify people from many factors that you can see in a videotape other than just the observation of the physical characteristics from whatever angle they may be taken from a party on a tape.

We consider hair patterns, we consider posture. We consider unique movements, or expressions. We consider all types of things in determining whether or not somebody is who we perceive them to be. Can we be wrong? Certainly we can be wrong. That's why we have cross-examination. But to keep it out is in my opinion inappropriate.

After additional witnesses testified, Barnes again objected, citing as additional authority, Carter v. State, 266 Ga.App. 691, 598 S.E.2d 76 (2004), and again arguing that identification from the videotape is for the jury. The court reviewed the Carter decision and again overruled the objection noting:

Here there is testimony that the defendant has changed his appearance since the alleged burglary by changing his hairstyle and losing weight. Thus, the testimony of witnesses as to his identity by persons who knew and dealt with him at the time is clearly relevant to assist the trier of fact. And the Court so rules.

At trial, three witnesses identified Barnes from images from the security videotape. The restaurant manager testified that he had observed Barnes in the restaurant at the beginning of virtually every shift that S.K. worked and that Barnes would stay for one-half hour to an hour on each occasion. He further testified that S.K. had worked three or four shifts each week for approximately two months before the burglary and that during this time the manager was present for one to three hours when S.K. began all of her weeknight shifts. When shown the video, he identified the person depicted as Barnes. The assistant manager also testified that she was always present, usually for an hour, when S.K. would arrive for her shifts which occurred at least three to four times a week. Barnes was at the Subway "a lot" at the beginning of S.K.'s shifts and noted that at the time of trial Barnes had a different haircut and had lost weight. She also identified Barnes from the videotape. Another employee, who worked with S.K. numerous days a week for approximately a month before the burglary, similarly testified that Barnes would accompany S.K. to most every shift and stay in the Subway for a period of time, usually one-half hour to an hour. She testified that she had looked at a still image from the videotape and identified Barnes. Lastly, S.K.'s father (G.K.) testified that he identified Barnes as the person in a picture shown to him by police, but indicated that the picture he had been shown was not one of the trial exhibits.

The trial court has broad discretion in determining the admissibility of testimonial evidence. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). A decision to admit or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that discretion. Id. We review questions of relevance de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993). A lower court's determination under I.R.E. 403 will not be disturbed on appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App.1989).

Idaho Rule of Evidence 701 provides:

If the witness is not testifying as an expert, the testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

Barnes contends that the identification testimony violated the second requirement of I.R.E. 701 because the jury could review the security video, still images from the security video, and a photograph showing Barnes' appearance at the time of the theft and determine for themselves whether Barnes was the individual depicted in the security video. The Idaho appellate courts have not yet addressed the admissibility of lay witness testimony involving identification of a person depicted in a security videotape, or in a still picture derived from the videotape.

Barnes cites to various federal and state court decisions that have addressed the issue of lay witness identification of individuals depicted in security videotapes.¹ Barnes urges this Court to adopt the following foundational standard:

[I]n order for lay opinion testimony as to the identity of a person captured on surveillance video to be admissible, the State must establish the witness' personal familiarity with the defendant at the time of the alleged offense coupled with the particular identifying features or changes in appearance of the defendant that the jury would not be capable of perceiving on their own from a review of the videotape evidence.

Federal courts addressing this issue under Federal Rule of Evidence 701, which is identical to I.R.E. 701, have generally held that in order for lay opinion identification testimony to be admissible, it must be helpful to the jury, which requires that "there [be] some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury." United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.1984).² These courts differ, however, in applying the "more likely to correctly identify" test. In Pierce, 136 F.3d at 774, the court stated that "whether a particular witness is better suited than the jury correctly to identify a defendant as the individual depicted in surveillance photographs turns on a number of factors." The pertinent factors were identified by...