State v. Hunt

• Decision Date: 30 May 2003
• Docket Number: No. 86,969,86,969
• Citation: 69 P.3d 571,275 Kan. 811
• Parties: STATE OF KANSAS, Appellee, v. CEDRIC E. HUNT, Appellant.
• Court: Kansas Supreme Court

275 Kan. 811

69 P.3d 571

STATE OF KANSAS, Appellee, v. CEDRIC E. HUNT, Appellant.

No. 86,969

Supreme Court of Kansas

Opinion filed May 30, 2003.

Korey A. Kaul, assistant appellate defender, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

GERNON, J.:

Cedric E. Hunt was convicted by a jury of aggravated robbery. In this direct appeal, Hunt challenges the identification procedure which resulted in his arrest, as well as the sufficiency of the evidence which resulted in his conviction. He also objects to the trial court not instructing the jury on theft as a lesser included offense.

Facts

A Coastal Mart convenience store was robbed by an individual with a bandana tied over the lower half of his face. The robber pulled his shirt sleeve down over his hand and pointed that hand at the clerk, which led the clerk to believe the man was armed. The clerk gave the robber five $20 bills. The robber drove away in a small, blue, four-door vehicle that did not have a license tag.

The clerk immediately called the Wichita police department, who responded immediately and dispatched a description of the vehicle and the robber. Within minutes of receiving the information, an Andover police officer observed a vehicle matching the description being driven by a man also matching the description given by the clerk. The Andover officer followed the vehicle until it stopped and then arrested the driver, Hunt.

The Andover officer then radioed the Wichita police, who drove the store clerk to Andover. The clerk immediately identified Hunt as the robber and also identified the vehicle as the one used in the robbery.

ONE-PERSON SHOW-UP

(A) Preservation of Issue

Hunt failed to object to the admission of the out-of-court identification at trial. Ordinarily, a defendant must object to the admission of the evidence at trial to preserve the issue on appeal. State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001).

We have recognized three exceptions to the rule precluding review when there is a failure to properly raise the issue at trial:

"(1) [T]he newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. [Citations omitted.]" State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998).

We will analyze the issue raised in order to serve the ends of justice or to prevent a denial of a fundamental right.

(B) Suggestive Identification

The question of whether an eyewitness identification was unnecessarily suggestive in violation of a defendant's right to due process is a mixed question of law and fact. This court reviews the factual basis of the district court's decision using a substantial competent evidence standard, but uses a de novo standard to review the legal conclusions drawn from those facts. See State v. Shumway, 30 Kan. App. 2d 836, Syl. ¶ 4, 50 P.3d 89 (2002).

The question of the unreliability of eyewitness identification has long been a concern for judges of all levels. Justice Brennan, writing for the majority in United States v. Wade, 388 U.S. 218, 228, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), stated:

"[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: `What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.

The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification."

Indeed, this court, in State v. Warren, 230 Kan. 385, 392, 635 P.2d 1236 (1981), noted:

"Closer to home is the case of Ronald Quick, who was twice tried and convicted of aggravated robbery of a liquor store in Hutchinson. At both trials two eyewitnesses positively identified defendant as the perpetrator of the crime. These two convictions were reversed for trial errors in State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979), and 229 Kan. 117, 621 P.2d 997 (1981). The case was dismissed by the State during the third trial after another man, who looked like the defendant, confessed to the crime."

Justice Prager, writing for this court in Warren, stated:

"In State v. Ponds, 227 Kan. 627, 608 P.2d 946 (1980), Chief Justice Schroeder states that reliability is the linchpin in determining the admissibility of identification testimony and suggests the five factors, mentioned in Neil v. Biggers, should be used to test the reliability of courtroom identification.

"This problem of the potential unreliability of eyewitness identification has been with us for a long time. In 1908, Charles C. Moore published A Treatise on Facts or the Weight and Value of Evidence. In sections 1221 through 1231, the author discusses in depth the inherent unreliability of eyewitness identification. In 1932, Edwin M. Borchard, Professor of Law of Yale University, published his book, Convicting the Innocent, Errors of Criminal Justice, where he discusses 65 cases where innocent people were convicted as a result of erroneous eyewitness identification. These cases occurred in 27 different states.

"In his treatise, The Science of Judicial Proof, p. 537 (3d ed. 1937), John Henry Wigmore states that the whole process involved in testimony going to the identity of persons calls for caution and precaution. In 3 Wigmore, Evidence in Trials at Common Law (rev. ed. 1970), by Professor James H. Chadbourn of Harvard University, it is stated in pages 205-06, that some of the most tragic miscarriages of justices have been due to testimonial errors in the area of eyewitness identification and the whole process therefore calls for caution.

"The problems inherent in eyewitness identification are the subject of an article by David B. Fishman and Elizabeth F. Loftus, Expert Psychological Testimony on Eyewitness Identification, 4 Law & Psychology Rev. 87 (Fall 1978). In her article, Dr. Loftus discusses the steps taken by the judicial establishment of Great Britain to correct the injustices resulting from mistaken identification. Astonished by the pardons of two individuals who had been independently convicted on the basis of erroneous eyewitness identifications, the British home secretary appointed a committee to investigate this area of criminal law and police procedure. The committee, chaired by Lord Devlin, recommended that a trial judge should be required by statute (1) to direct the jury that it is not safe to convict upon eyewitness evidence unless the circumstances of the identification are exceptional or the eyewitness evidence is supported by substantial evidence of another sort; (2) to indicate to the jury the circumstances, if any, which they might regard as exceptional and the evidence, if any, which they might regard as supporting the identification; and (3) if a trial judge is unable to indicate either such circumstances or such evidence, to direct the jury to return a verdict of not guilty. The English experience and the Devlin report are discussed in Williams, Evidence of Identification: The Devlin Report, Cr. L. Rev. 407-422 (1976)." 230 Kan. at 390-91.

The problems inherent in any identification procedure are compounded when that procedure is a "show-up." A "show-up" is 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. That was the situation in this case.

The critical element of the analysis is the reliability of the identification. Shumway, 30 Kan. App. 2d 836, Syl. ¶ 5. The analysis requires two steps. First, the court must determine whether the procedure used to elicit the eyewitness identification was unnecessarily suggestive. If the procedure is unnecessarily suggestive, the court continues with the second step of the analysis, evaluating the reliability of the identification under the totality of the circumstances. If there is a substantial likelihood of misidentification, the identification must be excluded from evidence. Shumway, 30 Kan. App. 2d 836, Syl. ¶ 6.

Kansas has adopted the five factors established by the United States Supreme Court for assessing the reliability of pretrial identifications:

"`[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness `prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'" Shumway, 30 Kan. App. 2d at 844 (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 [1972]).

The Biggers approach has been the law in Kansas and in the majority of other...