State v. Finch
| Decision Date | 08 June 2012 |
| Docket Number | No. 105,750.,105,750. |
| Citation | 277 P.3d 1193 |
| Parties | STATE of Kansas, Appellee, v. Jerome FINCH, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
In 2010, Jerome Finch was identified by one eyewitness who said Finch broke into her house and by another witness who said he saw Finch in the passenger seat of a car driving away from the house. The witnesses identified Finch shortly after the incident as he was presented to them alone and in handcuffs, accompanied by police. The district court denied Finch's pretrial motion to suppress the identifications. A jury convicted Finch of aggravated burglary and aggravated assault, and Finch was sentenced to 52 months in prison.
On appeal, Finch argues that the identifications should have been suppressed because they were the result of suggestive procedures that rendered them unreliable. Finch also argues that a jury instruction was clearly erroneous because it asked jurors to consider the witnesses' degree of certainty of the identifications.
But even if the identification procedures were unnecessarily suggestive—and even though the jury shouldn't have been told to consider witness certainty in evaluating their testimony—there were strong enough indications of the witnesses' reliability to warrant admission of their testimony. We therefore affirm Finch's convictions and sentences.
In July 2010, Dasia Gasper was home alone when two people broke into the Wichita house where she lived with her mother and brothers. Gasper walked to the living room and saw the two people, one of them carrying a gun—initially pointed at her. Gasper recognized the person with the gun as someone who had been to the house before based on a distinctive tattoo on his face. She left the house and called 911.
At the same time, Gasper's neighbor, Richard Stinnett, was on his front porch. Stinnett saw two people get out of a car and run down an alley. He heard what sounded like a door being kicked in. Stinnett walked toward Gasper's house and saw two people run back to the car. The car passed within 5 feet of Stinnett as it drove away. Stinnett saw that the person in the front passenger seat was taller, light skinned, and had a tattoo on his face. Stinnett called 911 and described the car and the three people in it.
Finch and two others were apprehended by police. Finch was handcuffed and placed in a patrol car. About an hour after the incident, an officer brought Gasper near the car and asked if she recognized Finch; she said he was the person with the face tattoo who was inside of her house with a gun. Another officer brought Stinnett to a place where he could observe Finch, and the officer asked Stinnett if he recognized Finch. Stinnett identified Finch as the passenger in the car and said he recognized him because of his face tattoo, height, and build.
Finch was charged with aggravated burglary and aggravated assault, and he moved to suppress the testimony of these eyewitness identifications. The district court denied the motion.
A jury convicted Finch of both charges. Finch was sentenced to 52 months in prison for aggravated burglary and 12 months in prison for aggravated assault, with the sentences ordered to run concurrently.
Finch has appealed to this court.
Finch first contends that the witness identifications from the night of the incident should have been suppressed because the circumstances were unnecessarily suggestive and created a substantial likelihood of false identification. Specifically, Finch argues that having witnesses identify him while he was in handcuffs and flanked by uniformed police officers violated his right to due process. The State maintains that the record supports the district court's conclusion that the identifications weren't impermissibly suggestive. The district court denied Finch's motion to suppress because it found nothing in the evidence to indicate that the identifications were suggestive or improper.
This court's review of an eyewitness identification is a due-process determination involving a mixed question of law and fact. State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). This court applies a substantial-evidence standard when reviewing the factual underpinnings of a trial court's decision to admit or suppress an eyewitness identification. 281 Kan. at 304, 130 P.3d 1179. We have unlimited review of the ultimate legal conclusion drawn from those facts. 281 Kan. at 304, 130 P.3d 1179.
The United States Supreme Court recently emphasized that improper police influence of an identification doesn't mean the identification should be automatically excluded. Perry v. New Hampshire, 565 U.S. ––––, 132 S.Ct. 716, 718, 181 L.Ed.2d 694 (2012). Thus, a court must exclude the identification only if there is “ ‘a very substantial likelihood of irreparable misidentification’ “ or when the evidence “ ‘is so extremely unfair that its admission violates fundamental conceptions of justice.’ “ 132 S.Ct. at 720, 723 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 [1968];Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 [1990] ). A witness identification should be admitted for a jury to decide its worth when the indications that the identification was reliable are strong enough to outweigh the corrupting effect of a police-arranged suggestive circumstance. Perry, 132 S.Ct. at 720. A defendant's constitutional rights are still protected even when an eyewitness identification is admitted because the defendant is allowed to attack its credibility and to try to persuade a jury to discount it. 132 S.Ct. at 723.
Due-process concerns arise only when law enforcement officers use an identification process that is both suggestive and unnecessary. 132 S.Ct. at 724. If so, then a court must assess, on a case-by-case basis, if improper police conduct created a “ ‘substantial likelihood of misidentification.’ “ 132 S.Ct. at 724 (quoting Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972] ).
In cases decided before Perry, Kansas courts have adopted a two-step analysis to determine whether to exclude an eyewitness identification. Corbett, 281 Kan. at 304, 130 P.3d 1179. applying eight different factors. 281 Kan. at 304, 130 P.3d 1179.
So, the first step requires analysis of whether the identification procedure used was both suggestive and unnecessary—or “impermissibly suggestive.” See Perry, 132 S.Ct. at 724;Corbett, 281 Kan. at 304, 130 P.3d 1179;State v. Reed, 45 Kan.App.2d 372, 379, 247 P.3d 1074,rev. denied 292 Kan. 968 (2011) (). If the defendant doesn't establish improper police conduct, then there is no need for a due-process check for reliability. Perry, 132 S.Ct. at 726. “Identification procedures are impermissibly suggestive if the officers conducting the proceeding give the witness information that highlights one of the individuals before the selection is made or make suggestions about who the witness should select.” Corbett, 281 Kan. at 305, 130 P.3d 1179. An example of an improper suggestion is a circumstance where “ ‘the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone.’ “ Perry, 132 S.Ct. at 727 (quoting United States v. Wade, 388 U.S. 218, 233, 87 S.Ct. 1926, 18 L.Ed.2d 1149 [1967] ). Kansas courts refer to this as a “show-up,” which is described as “essentially one person, almost always in custody, sometimes in handcuffs, being identified by an individual who usually was the victim of a crime a short time before the identification.” State v. Hunt, 275 Kan. 811, 815, 69 P.3d 571 (2003).
This procedure often raises sufficient concerns to find that the identification was unduly suggestive. 275 Kan. at 816, 69 P.3d 571. But the Kansas Supreme Court has found nothing unnecessarily suggestive about some “one-on-one confrontations shortly after the commission of an offense,” and the court recognizes that “time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation.” State v. Alires, 246 Kan. 635, 640, 792 P.2d 1019 (1990) (); see also State v. Aldridge, 204 Kan. 599, 601–02, 464 P.2d 8 (1970) (). “A literal interpretation of the term ‘unnecessarily suggestive’ is consistent with [the Supreme Court's] analysis, which requires the court to decide whether exigent circumstances necessitated the more suggestive procedure as opposed to use of an alternate procedure that was less suggestive.” Reed, 45 Kan.App.2d at 379, 247 P.3d 1074. But finding that a less-suggestive procedure could have been used only means that the court must move on to the second part of the analysis. 45 Kan.App.2d at...
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