State v. Guard

• Decision Date: 15 November 2013
• Docket Number: No. 20100720–CA.,20100720–CA.
• Citation: 750 Utah Adv. Rep. 49,316 P.3d 444
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jimmy D. GUARD, Defendant and Appellant.
• Court: Utah Court of Appeals

316 P.3d 444

750 Utah Adv. Rep. 49

STATE of Utah, Plaintiff and Appellee,

v.Jimmy D. GUARD, Defendant and Appellant.

No. 20100720–CA.

Court of Appeals of Utah.

Nov. 15, 2013.

Margaret P. Lindsay and Matthew R. Morrise, for Appellant.

John E. Swallow and Jeffrey S. Gray, for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges CAROLYN B. McHUGH and MICHELE M. CHRISTIANSEN concurred.

Opinion

ROTH, Judge:

¶ 1 Jimmy D. Guard appeals from his conviction for child kidnapping. Guard asserts that the trial court abused its discretion when it excluded his expert's testimony on the reliability of eyewitness identification from trial. We vacate the conviction and remand for a new trial.

BACKGROUND

¶ 2 Guard's conviction for child kidnapping resulted from the following evidence. Between 3:00 and 4:00 p.m. on November 15, 2004, a nine-year-old child was grabbed from behind while she was walking from the school bus to her home. The abductor put his hand over the child's mouth and told her that he had a knife. The child kicked the abductor in the shin, causing him to release her. The child then turned around and poked the abductor in the eye repeatedly for about twenty seconds. The child and the abductor fought before the child broke free and ran home. While she was running, the child turned back once to see the abductor running in the opposite direction.

¶ 3 When the child reached her home, she reported the incident to her mother. The child and her mother went out to look for the abductor, and when they could not find him, the mother called the police. First an officer, and later a detective, responded to the call. The child described the abductor to the officer as a male who was wearing white shoes, jeans, and a hat with curly hair sticking out from underneath. She also told the officer that the abductor could have been Hispanic and had a shadow of a mustache or beard but that she did not get a good look at his face. At that point, the detective, who had more experience and training in interviewing children, took over and was able to elicit from the child that the abductor was tall and slightly chubby with a dark complexion and dark hair. When pressed on how tall he was, the child stated that he was taller than the officer but shorter than the detective, a range of approximately 5'7? to 6'1? tall. The child also gave a more specific description of the abductor's clothing, describing the hat as a black baseball cap with the letter “A” on it and stating that he wore tennis shoes and a black “Stone Cold” Steve Austin T-shirt. The detective asked the child if she would be able to recognize the abductor if she saw him again, and the child said that she would. At trial, the child provided much the same description of her abductor as she did to the police, with the exception of the shoes. On direct examination, she said that she told the police the shoes were blue, but on cross-examination, she clarified that his shoes were white. A schoolmate, who got off the bus with the child but was not walking with her, corroborated the child's account of the abduction and her description of the abductor's clothing. According to the schoolmate, a stranger grabbed the child but then let go, and the child then ran one direction, and the stranger ran the other way. The schoolmate could not identify the stranger, but she did see that he was wearing a hat, blue pants, a black shirt, and white shoes.

¶ 4 The day after the kidnapping, the detective brought to the child's school a six-photograph lineup, which included a photograph of Guard.¹ While all six men had short dark hair and dark complexions and were a little overweight, Guard was the only suspect who had curly hair. Guard had no facial hair in his photograph, while four of the others did. The detective showed the child each photograph individually and asked her “to look at each one of them and tell [him] whether or not any of these people [was] the guy that tried to kidnap her.” Although the detective did not tell the child that the abductor was in one of the six photographs, the child later testified that she understood that one of the photographs would be of the person who kidnapped her. Guard's photograph was the third one. The child eliminated the first two photographs, saying to each, “[N]o, that's not him.” When the child was shown the third photograph—Guard's picture—though, the detective testified that “[h]er eyes got big, she appeared excited and scared at the same time and she immediately said, ‘That's him. That's him.... Yes, I'm sure that's him.’ ” The child also testified that she “was a hundred percent” sure that the person in the photograph was her abductor and she told the detective “that was the person ... ‘for sure.’ ” The child answered in the negative when asked about whether anyone in the remaining three photographs was the abductor.

¶ 5 Following the child's identification of Guard, the police obtained a search warrant for Guard's residence and began looking for additional witnesses. The search of Guard's home did not yield any of the clothing that the child described, but the police did find a pair of light blue running shoes. The police also located two people in the child's neighborhood who, after being shown Guard's picture, said they had seen a man who looked like Guard in the neighborhood on the day of the kidnapping. One neighbor reported that she “thought [she] had seen” Guard run past her house between 3:15 and 3:45 p.m. while she was in her yard waiting for her children to return home from school. She had found this behavior odd because the man was not wearing running clothes and because her neighborhood is not very popular with joggers due to the large number of dead-end streets. The second neighbor had seen a man who looked like Guard waiting at a Utah Transit Authority (UTA) bus stop across the street from the neighbor's house for approximately half an hour around mid-afternoon. The man was wearing denim pants and a dark shirt. When the UTA bus arrived about 3:00 p.m., the man did not board the bus but instead stayed at the bus stop, which was near the school bus stop. The neighbor then saw the school bus drop off the children and the man follow three girls up the road. The neighbor did not see the man approach or grab any of the girls. The neighbor thought the UTA bus stop was “about 70 feet at the most” from his house but said that he is farsighted and can see well at a distance, even though his vision is poor “close up.” An investigator for the defense measured the distance as 245 feet.

¶ 6 Prior to trial, Guard gave notice that he intended to call Dr. David H. Dodd to testify as an expert regarding the reliability of eyewitness identification, specifically “concerning the full range of cognitive processes associated with the eyewitness, including attention,perception and memory.” The State moved to exclude Dr. Dodd's testimony, asserting that it “would amount to a lecture to the jury and would infringe on the jury's responsibility to weigh the credibility of the witnesses.” Around this same time, Guard filed a motion to suppress the child's identification of Guard through the photograph lineup. In support of this motion, Guard cited several factors known to affect the reliability of eyewitness identification that were present in the circumstances of the crime, including the short duration during which the child viewed her abductor, a stranger; her hyperactive state due to having to defend herself from attack; and the cross-racial nature of the identification because the child is African American and she described the abductor as Hispanic.²

¶ 7 The court scheduled a hearing on Guard's motion to suppress (the motion hearing) during which Guard explained that recent studies and case decisions from around the country have “consistent[ly]” identified the same factors he cited in his memorandum as indicating problematic eyewitness identifications. Guard then illustrated how those factors were present in the case, particularly as they related to the photographic lineup. In this context, Guard agreed to a hearing pursuant to State v. Rimmasch, 775 P.2d 388 (Utah 1989), superseded by rule as stated in State v. Maestas, 2012 UT 46, ¶ 121 n. 134, 299 P.3d 892, where he would call Dr. Dodd to testify about the fallibility of eyewitness identification in support of his motion to suppress the child's photograph lineup identification. The purpose of that hearing would be to establish the reliability of Dr. Dodd's expert testimony under rule 702 of the Utah Rules of Evidence to determine its admissibility at trial. The court agreed that a Rimmasch hearing might be necessary for purposes of Guard's motion to suppress the child's photo-lineup identification but noted that if Dr. Dodd's testimony was “very generic ..., not going to this alleged victim, ... but a general type of ... testimony regarding cognitive processes associated with eyewitnesses,” the “Court could allow that expert testimony to come in.” When the State insisted on a Rimmasch hearing because it was not clear whether Dr. Dodd would testify at trial generally about the fallibility of eyewitness identification or specifically about the child's reliability in identifying Guard, the court denied Guard's motion to suppress the child's photograph identification of Guard but indicated that it “w[ould] reconsider” if Guard “renew[ed] the motion at a Rimmasch hearing.”

¶ 8 Guard renewed his motion to suppress, and the matter was set for a Rimmasch hearing two weeks later. Dr. Dodd's testimony at the Rimmasch hearing focused primarily on the reasons that the photograph-lineup identification should be suppressed.³ In the course of his testimony, however, Dr. Dodd also addressed the factors that affect the accuracy of eyewitness identification generally, and the court acknowledged that those factors were significant in assessing the reliability of an eyewitness identification....