State v. Love

• Decision Date: 09 July 1999
• Docket Number: No. 80,764.,80,764.
• Citation: 986 P.2d 358,267 Kan. 600
• Parties: STATE OF KANSAS, Appellee, v. LEVI LOVE, JR., Appellant.
• Court: Kansas Supreme Court

267 Kan. 600

986 P.2d 358

STATE OF KANSAS, Appellee, v. LEVI LOVE, JR., Appellant.

No. 80,764.

Supreme Court of Kansas.

Opinion filed July 9, 1999.

Janine Cox, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Joel W. Meinecke, assistant district attorney, argued the cause, and Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Levi Love, Jr. appeals from his convictions and sentences on the charges of first-degree murder and attempted murder. The defendant assigns three errors that he contends requires reversal of his convictions: (1) failure to suppress eyewitness testimony, (2) insufficiency of evidence supporting his convictions, and (3) the admission of hearsay evidence. We affirm.

The murder victim was the defendant's former girlfriend, La-Tonya Ward. The victim of the attempted murder was a companion of Ward, Darryl Peppers. Events leading up to the crimes occurred in Topeka on March 23, 1997.

Peppers was visiting his mother when Ward telephoned and asked him to walk her home. Peppers agreed to walk her to her mother's house close by. As they walked, a white Grand Am pulled up next to them. Peppers testified that a man inside the car said something to Ward about license tags. Ward denied having the tags. Over a hearsay objection at trial, Peppers stated that after the driver departed, Ward told him the driver was "Levi." Peppers testified that he did not recognize the name.

When Peppers and Ward arrived at her mother's house, Ward knocked on the door. Peppers, who was by the sidewalk, noticed that the white Grand Am was parked near the house. Peppers saw a person whom he later identified as the defendant get out of the car and walk up to Ward. According to Peppers, the defendant was still talking about tags and Peppers heard Ward say, "I'll get your tags. I'll get your tags." Peppers testified that he turned away from the conversation because he did not think it was any of his business. Suddenly, he heard a gunshot. He immediately began running. Then he heard another gunshot and the entire right side of his body became numb. Peppers collapsed into the street. According to Peppers, the defendant then walked over to him as he lay in the street and pointed a gun at his head. Peppers told the defendant that he was just a friend walking Ward home, had no involvement in the incident, and that he had kids at home. When the defendant stated that Peppers could identify him, Peppers assured the defendant he could not do so. Peppers testified that at this point, he could see the person and tried to memorize his face.

The defendant got into the Grand Am and drove away. Peppers then felt people lifting him. He heard someone yell, "He's coming back, he's coming back!" and was dropped back into the street. The Grand Am ran over his stomach and hips and drove away. He passed out momentarily and awoke to find that he was being lifted out of the street again.

Peppers was taken to the hospital where he was hospitalized for nearly a month for various injuries. Ward's body was found near the front door of her mother's house. She died of a bullet wound to the left side of the neck.

The defendant was arrested and charged with first-degree murder in the death of Ward and with attempted murder in the attack on Peppers. In a pretrial motion, the defendant sought to suppress the pretrial identification of him by Peppers because the photographic lineup leading to the identification was impermissibly suggestive. After a full hearing, the trial court denied his motion. Following a trial, the defendant was convicted of both crimes, leading to this appeal. Additional facts will be discussed as necessary to resolve the issues presented.

Eyewitness Identification

A two-step approach is used to decide whether an eyewitness identification should be excluded. Initially, the court determines whether the procedure used in making the identification was impermissibly suggestive; if so, then the court examines whether, under the totality of the circumstances, the impermissibly suggestive identification led to a substantial likelihood of irreparable misidentification which would deny due process. State v. Skelton, 247 Kan. 34, 39-40, 795 P.2d 349 (1990). An eyewitness identification due process determination is a mixed question of law and fact. State v. Edwards, 264 Kan. 177, 189-90, 955 P.2d 1276 (1998). This court reviews the factual underpinning of a trial court's decision regarding the suppression of the eyewitness identification evidence by a substantial competent evidence standard of review and reviews the ultimate legal decision drawn from those facts de novo with independent judgment. See State v. Bornholdt, 261 Kan. 644, 662, 932 P.2d 964 (1997).

When a police officer arrived at the scene, Peppers told him that he did not know the person who shot him and described the person as a black male, 25 years old, 5'6" tall with short black hair and dark clothing. Alberta Shaw, Ward's mother, told police that the defendant was her daughter's ex-boyfriend and sometimes drove his sister's white car. Shaw said that Ward and Love had recently quarreled. Police also discovered that earlier that day, the defendant's sister, Mary Love, had reported that the license tag from her grandmother's car, which the defendant usually drove, had been stolen. Mary Love told officers that she saw Ward take the tag from the car.

The next day Detectives William Cochran and Kirby Lester went to Peppers' hospital room to obtain his statement. Lester had prepared a photo array for Peppers to look at by putting information into the computer regarding the defendant's appearance and asking the computer for photos of persons with the same general description. The array consisted of six photographs.

Peppers was not initially cooperative. He told the detectives he really was not paying attention to the person and only knew that the person had dark clothes and short hair. The officers showed him the photographic array and told him that his assailant was not necessarily pictured in the array. Peppers testified at the suppression hearing that he did not intend to identify anyone because of his desire to take care of things himself. However, his girlfriend, who was in the hospital room, told him that he had kids and needed to be responsible so he decided to cooperate. He selected the defendant's photograph. When asked if the selected person was the assailant, Peppers stated, "I think so."

Peppers testified that he had previously seen two of the other persons in the array and that another person in the array did not have the same hair as his assailant. However, he also said that he had no difficulty picking out the defendant's picture because he would never forget his face. At trial, Peppers testified that the main thing he remembered about his assailant was his eyes. After Peppers made the identification, Detective Cochran told him that the person he selected was in jail.

The defendant argues that the small number of photographs used made the lineup impermissibly suggestive. He notes that Peppers had seen two of the persons in the six-person lineup before. Further, according to the defendant, one of the persons in the lineup had hair of a different length than that described by Peppers. Thus, the defendant argues that the lineup was actually a three-person lineup. He also argues that the photographic lineup was conducted so that it was impermissibly suggestive and caused a substantial likelihood of irreparably mistaken identification.

While the defendant's argument might have some validity regarding the photographs of persons Peppers had seen before, it has no validity as to the person whose hair was not "the correct length." In every lineup, an individual will have some characteristic that distinguishes the individual from the other, such as hair, shape of nose, etc. Unless the characteristic is substantially different from the prior description of the suspect, it should not affect the validity of the identification. Here, Peppers merely said that the suspect had "short hair." A look at the lineup reveals that all of the individuals in the lineup had what might be termed as short hair. Thus, at worst, the lineup was a four-person lineup rather than a three-person lineup as argued by the defendant.

In determining whether a lineup itself was unnecessarily suggestive, federal courts have used a number of factors, including the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves. See U.S. v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994); U.S. v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993). As to the part that size of the array plays in this analysis, the Tenth Circuit Court of Appeals stated in Sanchez:

"After analyzing many of the federal cases dealing with due process challenges to photo arrays, we believe that the number of photographs in an array is not itself a substantive factor, but instead is a factor that merely affects the weight given to other alleged problems or irregularities in an array. The larger the number of pictures used in an array, the less likely it is that a minor difference, such as background color or texture, will have a prejudicial effect on selection. In such a case, the differences become diluted and less obvious among the large number of images, each of which are likely to contain some sort of minor idiosyncratic aberration. See Simmons [v. United States, 390 U.S. 377, 386 n.6, 19 L. Ed.2d 1247, 88 S. Ct. 967 (1968)]. This is not to say that one color picture cannot stand out in an array of one thousand black and white pictures, but on the whole, minor irregularities will be less noticeable and prejudicial as the number of photographs increases. Id.

"Conversely, when a

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