State v. Kay

• Decision Date: 28 May 1985
• Docket Number: No. 14307,14307
• Citation: State v. Kay, 701 P.2d 281, 108 Idaho 661 (Idaho App. 1985)
• Parties: STATE of Idaho, Plaintiff-Respondent. v. Clifford "Butch" KAY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 281

701 P.2d 281

108 Idaho 661

STATE of Idaho, Plaintiff-Respondent. v. Clifford "Butch" KAY, Defendant-Appellant.

No. 14307.

Court of Appeals of Idaho.

May 28, 1985.

Jon J. Shindurling of May, May, Sudweeks, Shindurling & Stubbs, Twin Falls, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

SWANSTROM, Judge.

Following a jury trial Clifford Kay was convicted for the offense of lewd conduct with a minor child in violation of former I.C. & 18-6607. He has appealed from that conviction raising seven issues: (1) whether the pretrial lineup was unnecessarily suggestive, (2) whether there was sufficient corroboration of the victim's identification of Kay as the perpetrator of the alleged act, (3) whether the testimony presented at trial was sufficient to sustain a conviction, (4) whether the district court erred in denying his motion for judgment of acquittal and for a new trial, (5) whether the prosecutor committed prejudicial error in his statements to the jury during closing argument, (6) whether the district court erred in refusing to give jury instructions concerning eyewitness identification testimony and the burden of proof involved in alibi defenses, and (7) whether the district court erred in its refusal to order that Kay's expert witness fees and the costs of a preliminary hearing transcript be paid with public funds. We affirm the judgment of conviction.

The alleged incident occurred around midnight, August 1, 1979, while the fourteen-year old female victim was baby-sitting at a residence in Twin Falls, Idaho. The front door to the house was open but the screen door was closed. According to the testimony of the victim, a man came onto the porch with a dog at his side. The girl responded to his knock and opened the screen. The man, who appeared to be intoxicated, asked whether she knew to whom the dog belonged. She bent down to look for an address on the dog's collar. On a metal tag, she noticed an address which later proved to be that of a local veterinarian hospital. Suddenly the man grabbed her in the crotch, and she backed into the house screaming. She tripped and fell and the man again came after her and began strangling her with one hand, trying to remove her pants with the other. The struggle continued into the kitchen, where he struck her repeatedly, beat her head on the floor and threatened her with a small pocket knife. At some point the assailant tore her shirt off. The victim grabbed a broom and then a fork and the assailant fled. The victim identified Clifford Kay as her assailant in a lineup at the Twin Falls Police Department on August 7.

I

On this appeal, Kay contends the lineup was unfairly suggestive because he was the only participant in the confrontation with faded blue overalls, a suntan and the general appearance of being an outdoor worker, which was how the victim described her attacker. He alleges these were distinguishing characteristics which tainted his identification by the victim. It should be noted that this issue is raised for the first time on appeal. No timely motion to suppress or objection to the evidence was made at the trial level. The lineup was indirectly attacked when defense counsel made a motion for a judgment of acquittal after the close of the state's case. One of defense counsel's several arguments for that motion was that reasonable doubt had been shown, as a matter of law, because the victim's identification of Kay was produced solely through an unnecessarily suggestive lineup. Nevertheless no motion to strike evidence of the lineup identification was ever made.

Idaho Criminal Rule 12 states in relevant part that:

(b) Pretrial motions. Any defense objection or request which is capable of determination without trial of the general issue may be raised before the trial by motion. The following must be raised prior to trial:

....

(3) Motions to suppress evidence on the ground that it was illegally obtained;

....

(e) Effect of failure to raise defenses or objections. Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, or at the time set by the court pursuant to subsection (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

Therefore, ordinarily the failure to move to suppress evidence prior to trial pursuant to I.C.R. 12(b)(3) and the failure to object to its admission at trial would prevent us from addressing the issue on appeal. However where a fundamental error has been committed in a criminal trial, this court may consider it even though no objection was made at the trial court. State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981); State v. Kelly, 106 Idaho 268, 678 P.2d 60 (Ct.App.1984), cert. denied, 469 U.S. 918, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984). Such fundamental error must have deprived defendant of due process. State v. Bylama, 103 Idaho 472, 649 P.2d 1228 (Ct.App.1982). This doctrine of fundamental error is grounded in a criminal defendant's due process right to a fair trial. State v. Kelly, supra. In State v. LePage, supra, the Idaho Supreme Court reviewed an alleged error presented for the first time on appeal noting that defendant's right to receive a fair trial might have been impaired. Further, the court noted that cases such as LePage, involving evidence of a defendant's inculpatory statements, can be distinguished from the ordinary fourth amendment waiver cases where the evidence is generally non-testimonial and more inherently reliable. The same principles apply to the present case where the evidence is testimonial. The court in LePage concluded that it must exercise its discretion to review alleged errors that affect substantial rights. Thus, we are constrained to examine the lineup procedure to determine whether fundamental error occurred, even though the trial court was never presented with a timely motion which could have given that court the opportunity to avoid unfairness to defendant at trial.

Our inquiry, then, is whether the alleged suggestiveness of a pretrial lineup could have deprived Kay of his opportunity to have a fair trial, resulting in a denial of due process. In determining whether a confrontation prior to the commencement of a formal judicial criminal proceeding is improper, the test is whether the identification confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification that he [the defendant] was denied due process of law." Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380, 34 L.Ed.2d 401 (1972) (quoting Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972-73, 18 L.Ed.2d 1199 (1967)). "[T]he factors to be considered in evaluating the likelihood of misidentification include the 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." Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382.

Kay argues that the other men in the lineup did not have faded worn overalls or the appearance of outdoor workers, resulting in the effect that Kay was the distinctive person. As we have mentioned, no motions to suppress the lineup identification were submitted to the trial court at any time. Neither were any objections made during the trial concerning the victim's identification of Kay as her assailant. Therefore, we have no findings or rulings of the trial court concerning the conduct of the lineup. Fortunately, the police had defense counsel present at the lineup. The police also took photographs of the five persons used in the lineup. We have examined these photographs, as well as the trial testimony, and we conclude that the lineup was fairly conducted.

The other participants in the lineup did not differ so dramatically from Kay as to make the lineup unnecessarily suggestive and conducive to irreparable mistaken identification. All the participants in the lineup were dressed similarly in bib overalls, shirts and baseball-type hats. The fact that three of the other four men in the lineup wore new overalls did not suggest that Kay was the suspect. There was nothing to indicate he would be wearing the identical clothing he wore the night the crime occurred. The general appearance of the subjects was not strikingly different. While none of the other participants was as darkly tanned as Kay, their appearances did not set them off from the suspect.

We briefly note how the Neil v. Biggers criteria apply in this case. Here, the victim had a few calm moments while at the front door to closely face, talk to, and to clearly observe the person standing on the porch. The victim's degree of attention toward her assailant would have been strongly riveted once the assault began, even though the following minutes were violent ones. Because the assailant fled that night and eluded capture, it is difficult to assess the accuracy of her description about facial hair and color of the shirt she described. Her first description of height (in feet and inches) varied from Kay's actual height, and much was made of the discrepancy by defense counsel at trial and on appeal. However, the day after the attack occurred, the victim told police officers she believed her assailant was taller than she had said and she settled on a height that turned out, in fact, to be much closer to Kay's height. She made this change after comparing her attacker's height to that of a police officer who was in her presence. Her other physical descriptions of the assailant, given to police before the lineup occurred, reasonably matched Kay's description. The five-day lapse of...