State v. Kelly
| Decision Date | 02 June 2000 |
| Citation | 2000 ME 107,752 A.2d 188 |
| Parties | STATE of Maine v. Bobby Llamar KELLY. |
| Court | Maine Supreme Court |
Michael P. Cantara, District Attorney, Jon C. Gale, Asst. Dist. Atty., David D. Gregory, of counsel (orally), Alfred, for State.
Gregory O. McCullough (orally), Sanford, for defendant.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
[¶ 1] Bobby Llamar Kelly appeals from a judgment of conviction of armed robbery (Class A), see 17-A M.R.S.A. § 651 (1983), entered following a jury trial in the Superior Court (York County, Brennan, J.).1 Kelly contends that the court abused its discretion when it denied Kelly's motion for funds to pay for an expert witness, and that the court erred when it refused to exclude evidence of the victim's identification of Kelly from a photo lineup and in the courtroom and when it refused to exclude statistical DNA evidence. Kelly also contends that the court improperly denied his motion for a new trial. Finding neither error nor abuse of discretion, we affirm the judgment.
[¶ 2] Early on Sunday morning, January 10, 1999, Kelly, who is African-American, was at a Biddeford 7-11 store with a young woman. Both Kelly and the woman were known by one of the clerks working at the store. Kelly asked for a phone book in order to call a cab. A clerk gave him the book, along with several numbers, one of which was for Alternative Taxi. Kelly and the woman then left.
[¶ 3] Shortly thereafter, and near the 7-11, an African-American man described as wearing a wool cap, a green mask covering his mouth and nose, and a dark jacket and jeans flagged down a driver from Alternative Taxi. The man got in the cab and rode to Saco, pleasantly conversing with the driver as they went. Eventually, the man apparently asked to be driven back to Biddeford, and directed the cab driver to drive around several streets, ostensibly so that he could find a friend's house. Finally, the man told the driver to stop, and paid the driver.
[¶ 4] The man then declared that he "would take all of it," and when the driver turned around, he saw what he at first took for the end of a silver-colored, toy gun in the man's hands. Soon, however, the driver realized it was a real gun. The driver then gave back the money he had just received from the man as a fare, but no more.2 The man then reached over, took the car keys, and left on foot.
[¶ 5] The driver radioed his dispatcher for assistance, and then exited the vehicle to pursue the man. The man took off his mask, and the driver testified that he got a good look at the man's full face for the first time. Apparently noticing that he was being pursued, the man dropped the mask as he fled. The driver returned to his car, and eventually the police arrived and collected the mask.
[¶ 6] Kelly's friend, Ronald Bean, who lived near where the robbery occurred, was awakened by Kelly at about 6:00 A.M. Bean testified that Kelly appeared nervous, and that Kelly asked Bean to hide a silver pistol that Kelly pulled from his backpack. Bean had seen this weapon before—he had been the intermediary between two friends in its sale just the previous day. Kelly wanted to stay, but Bean insisted he leave.
[¶ 7] Another robbery had occurred a few hours before the robbery in this case. According to a detective investigating that earlier crime, the victim3 had known his robber by the name "Lamar." Based on this name, the detective prepared a photo array that contained Kelly's picture along with pictures of five others who looked as similar to Kelly as the detective was able to find. The victim of the first robbery picked out Kelly from the array. On the basis of this identification, Kelly was arrested on January 11.
[¶ 8] The next day, the detective presented the same photo array to the victim in this case, the cab driver.4 The detective asked the driver whether he had heard about an arrest on a similar crime, which had been on the local news, and the driver indicated he had not. The detective also told the driver that the array might or might not include the person who had robbed him. The driver picked out Kelly as his robber, "spott[ing] him right away." The driver testified that he was sure of his identification because of The driver testified that the detective then told him that he had picked out a police officer as his robber, but the driver did not change his choice. According to the driver, only then was he told he had picked out the man the police had in custody for the other robbery.
[¶ 9] Kelly was indicted on two counts of robbery with a dangerous weapon.5 See 17-A M.R.S.A. § 651. In denying Kelly's motion to suppress evidence, the court indicated it was "satisfied that under all of the circumstances there is nothing in this lineup which is necessarily suggestive."
[¶ 10] At trial, defense counsel wished to present the cab driver with a photo array that showed a number of sets of eyes and ask him to identify the "eyes" who had robbed him. Counsel asked that the driver not be allowed to see Kelly (and his eyes) prior to this line of questioning. In order to facilitate this, the court and the attorneys agreed that the driver would be asked by the prosecutor to identify the robber as early as possible, and then Kelly would be excused from the courtroom for the duration of the driver's testimony. The prosecutor asked the driver if he saw "in this courtroom anywhere, do you see the defendant, the person who robbed you that morning?"6 The driver identified Kelly, who, counsel noted in closing argument, was the only African-American male present. On cross-examination, the driver was unable to identify his robber from the array of eyes presented by defense counsel.
[¶ 11] Prior to trial, Kelly moved for funds for an expert witness who would testify regarding certain identification issues, contending that there was a sufficient scientific basis for the jury to hear testimony regarding the reliability of so-called "cross-racial identifications"; i.e., identifications of persons of one race by persons of another, and regarding the reliability of identifications of which the witness professes "certainty." The court (Fritzsche, J.), quoting from a decision of the New Jersey Supreme Court, denied the motion on the basis that, because there is a widely-held belief that cross-racial identifications were generally of lesser reliability, expert testimony would not be helpful. See State v. Cromedy, 158 N.J. 112, 727 A.2d 457, 467-68 (1999).7 At trial, the court instructed the jury that it could consider whether the respective races of the victim and the defendant had any bearing on the reliability of the driver's identification.
[¶ 12] DNA analysis on the mask worn by the robber and left at the scene revealed DNA from at least three persons. Kelly's DNA was consistent with one of the DNA samples found on the mask, and the State's DNA expert was allowed to testify, over the objection of Kelly, that the DNA of only one person in 20,000 would be consistent with that sample.
[¶ 13] After retiring to deliberate, the jury requested that the testimony regarding the DNA evidence be read back. This request was granted, and following brief additional deliberations, the jury found Kelly guilty. Kelly's motion for a new trial on the ground that the statistical DNA evidence had confused the jury and that the State had withheld exculpatory evidence was denied, and Kelly filed this appeal.
[¶ 14] Kelly contends the trial court abused its discretion when it denied his motion for funds for an expert witness who was to have testified regarding the reliability of cross-racial identifications.
[¶ 15] Rule 702 of the Maine Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
M.R. Evid. 702. The trial court "is vested with broad discretion" with regard to the admission of such expert testimony. State v. Rich, 549 A.2d 742, 743 (Me.1988). Moreover, a defendant is not entitled to funds for an expert unless the testimony the expert is to provide is found to be admissible. See id. (citing State v. Gordius, 544 A.2d 309, 310-11 (Me.1988)).
[¶ 16] Although we have never addressed the issue of cross-racial identification, we have repeatedly upheld the exclusion of expert testimony regarding eyewitness reliability as within the court's discretion. See State v. Chapman, 645 A.2d 1, 2 (Me.1994); Rich, 549 A.2d at 743; State v. Fernald, 397 A.2d 194, 197 (Me.1979). We have found no cases, and Kelly has cited none, holding that it was an abuse of the trial court's discretion to exclude such testimony or to deny funds to produce such testimony.8
[¶ 17] In denying the motion for funds, the court found that the testimony would not be helpful to the jury. Moreover, the trial court did instruct the jury regarding cross-racial identification consistent with State v. Cromedy, and the parties argued the issue before the jury. The court's conclusion that the expert's testimony would not be helpful to the jury is not clearly erroneous, and its decision to deny funds for that reason was within its broad discretion.
[¶ 18] Kelly contends the evidence that the victim identified Kelly from the photo lineup as the perpetrator of the robbery should not have been admitted because the identification was made on the driver's extremely limited view of the robber and because of the allegedly suggestive procedure used by the detective.
[¶ 19] We have held that a two-part test must be applied to determine whether...
To continue reading
Request your trial
-
Commonwealth v. Walker
...734 N.E.2d 563 (Ind.2000); State v. Schutz, 579 N.W.2d 317 (Iowa 1998); Commonwealth v. Christie, 98 S.W.3d 485 (Ky.2002); State v. Kelly, 752 A.2d 188 (Me.2000); Bomas v. State, 412 Md. 392, 987 A.2d 98 (2010); Commonwealth v. Santoli, 424 Mass. 837, 680 N.E.2d 1116 (1997); People v. Carso......
-
State v. Vickers
...in this sentence, but other states have. Commonwealth v. Santos, 402 Mass. 775, 525 N.E.2d 388, 392 (1988); see also State v. Kelly, 752 A.2d 188, 192 (Maine 2000) ("defendant must prove, by a preponderance of the evidence, that the identification procedure was suggestive; i.e., that it ten......
-
State v. Davis
...whether the witness's "out-of-court identification should be admitted in evidence." Nigro , 2011 ME 81, ¶ 21, 24 A.3d 1283 ; see State v. Kelly , 2000 ME 107, ¶ 19, 752 A.2d 188 ; State v. True , 464 A.2d 946, 950 (Me. 1983). As we explained in Nigro ,First, the defendant must prove, by a p......
-
State v. Mahmoud
...Study Group Report at 3-4 & n.4, 51-58, 117-146.5 We have not previously addressed the issue of cross-racial identification. See State v. Kelly , 2000 ME 107, ¶ 16, 752 A.2d 188. The current state of the science strongly suggests that cross-racial identifications tend to be less accurate th......