State v. Gaines

• Citation: 926 P.2d 641,260 Kan. 752
• Decision Date: 25 October 1996
• Docket Number: No. 72708,72708
• Parties: STATE of Kansas, Appellee, v. Alvin L. GAINES, Appellant.
• Court: United States State Supreme Court of Kansas

Page 641

926 P.2d 641

260 Kan. 752

STATE of Kansas, Appellee, v. Alvin L. GAINES, Appellant.

No. 72708.

Supreme Court of Kansas.

Oct. 25, 1996.

Syllabus by the Court

1. The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion.

2. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.

3. Expert opinion testimony cannot invade the field of common knowledge, experience, and education of a layperson and it cannot usurp the function of the jury if such testimony touches the very issue before the jury.

4. When an unfavorable ruling on an evidentiary question prior to trial is received, a party must make a timely objection to such evidence when it is introduced at trial in order to preserve the issue for appeal.

5. Any relevant evidence having a tendency in reason to prove any material fact is 6. The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated.

admissible unless expressly excluded from evidence by the rules of evidence.

7. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact.

8. Habit is defined as an action which is so ingrained in one's character that it becomes mechanical or automatic. Isolated or occasional instances of behavior will not prove habit.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with him on the brief, for appellant.

Paul J. Morrison, District Attorney, argued the cause, and Carla J. Stovall, Attorney General, and Steven J. Obermeier, Assistant District Attorney, were with him on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by the defendant, Alvin L. Gaines, from his convictions in Johnson County District Court of one count each of rape, aggravated kidnapping, and aggravated criminal sodomy. On appeal, the defendant challenges the exclusion of expert trial testimony regarding eyewitness identification, makes a claim that the photographic lineup from which he was identified was unduly suggestive, and argues that the admission of his ex-wife's trial testimony regarding his participation in toe sucking was improper.

The victim in this case, 14-year-old J.K., was sexually assaulted in her neighborhood. J.K. was walking by a street light in the early morning hours when she heard footsteps behind her. J.K. turned and saw a man jogging toward her. The man told J.K., "That's a long jog, isn't it," and asked J.K. where she was going. When J.K. told him, the man asked if he could walk with her. J.K. replied, "No," and tried to run away. The man grabbed J.K. from behind. He put his hand over her mouth and placed a knife against J.K.'s throat. The man threatened J.K. that if she said anything he would cut her.

The man led J.K. behind an air conditioning unit of a nearby home. She was told to remove her clothes. For approximately an hour, the man forced her to engage in sexual activity. At one point, the defendant took J.K.'s right foot and brushed it off with his hand; then the man started sucking on J.K.'s right big toe as if he were sucking on a thumb. Later, he picked up the same foot and sucked on J.K.'s big toe again. During much of the attack, J.K.'s sweater was pulled up over her head. J.K. testified that she could see the man through the sweater.

J.K. reported the incident to the police and described her attacker as a stocky man with a pretty big belly, who was dressed in a dark shirt and pants, a dark ball cap, running shoes, and glasses. A police officer also testified that J.K. described her attacker as being very dark complected. Shortly after the attack, the police showed J.K. a photographic lineup in which at least three of the pictures were of very dark-complected men. This lineup did not contain a picture of the defendant. J.K. thought that one of the pictures resembled the attacker, but stated it was not him. J.K. also looked at a large number of pictures in mug books containing pictures of white, Hispanic, and Native American men. J.K. thought that two of the pictures resembled her attacker, but stated neither man was her attacker.

Following the assault, J.K. underwent fairly severe anxiety attacks. She experienced panic attacks whenever she saw any dark-skinned man who generally resembled the attacker. On one occasion, she was working as a hostess at a local restaurant. She saw a man enter with his family, and after hearing him speak, she thought he might be her attacker. She called the police, who came to the restaurant. The police talked to the man in front of the restaurant while J.K. observed the man with binoculars from a police car.

She decided that the man was not the man who had attacked her.

Nearly 2 years after the attack, the police asked J.K. to look at some more pictures. J.K. went to the police station, signed an orientation sheet, and looked at a six-person photographic lineup. This second photographic lineup was not race-specific. A photograph of the defendant, a Native American, was included in the lineup. J.K. immediately identified the defendant's picture as the man who attacked her. At trial, J.K. identified the defendant as the person who attacked her. In identifying the defendant at trial, J.K. stated, "I just know one hundred percent for sure. Because of the facial features that he has and I never forgot exactly what he looked like."

The defendant's trial centered on identification issues. The defendant's ex-wife testified that she married the defendant in August 1987 and that the two were married for 1 year. She testified that on about five occasions, during the course of sexual activity, the defendant had sucked on her big toes. The defendant would suck on her big toe as if he were sucking on a thumb.

In his defense, the defendant tried to admit the testimony of an expert witness on the issue of eyewitness identification. The district court excluded this testimony. The court found that most of the testimony did not provide information which was beyond a jury's common knowledge and that some of the testimony invaded the province of the jury by evaluating the confidence and credibility of J.K. and her eyewitness identification testimony.

EYEWITNESS IDENTIFICATION

The defendant filed a pretrial motion requesting permission to introduce the testimony of an eyewitness identification expert at trial. At a hearing on the motion, the defendant made a proffer of the expert's testimony.

The expert's proffered testimony focused on the problems of eyewitness identification. He discussed the increased possibility of error in cases involving cross-racial identification, and he noted that high levels of stress could possibly reduce the accuracy of an identification, depending upon the stressor and how a person responds to stress. The expert witness also discussed how the passage of time could decrease the likelihood of an accurate identification. Finally, the expert explained how scientific studies have demonstrated that there is a low correlation, if any, between a witness' level of confidence in an identification and the actual accuracy of the identification.

The court denied the defendant's pretrial motion and excluded the expert testimony from trial. In so holding, the trial court found that expert testimony on the reliability or accuracy of a witness' identification was precariously close to expert testimony regarding the witness' credibility as a witness. Thus, the court found the testimony improperly invaded the province of the jury.

At trial, the defendant renewed his proffer of this expert testimony, which the trial court excluded. However, the trial court did modify the PIK Crim.3d 52.20 jury instruction on eyewitness identification by removing factor 6 relating to the degree of certainty demonstrated by the eyewitness. The defendant challenges the district court's exclusion of the eyewitness identification expert testimony.

"The admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion." See State v. Cheeks, 253 Kan. 93, 99, 853 P.2d 655 (1993); Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. p 8, 822 P.2d 591 (1991); In re Application of City of Great Bend for Appointment of Appraisers, 254 Kan. 699, Syl. p 5, 869 P.2d 587 (1994).

According to the defendant, several factors, which were beyond common knowledge and understanding of the jurors, made the victim's eyewitness identification unreliable. Thus, the defendant argues that an expert was necessary to generally identify and explain these factors to the jury. These factors included the cross-racial identification, the 2-year length of time between the attack and the identification, the lineup procedure, the extreme stress the victim experienced during The defendant asserts that the court could have allowed the expert witness to testify and restricted the expert from offering a direct opinion that the victim was mistaken in her identification of the defendant as her...