State v. Mack, 68,550

• Decision Date: 15 April 1994
• Docket Number: No. 68,550,68,550
• Citation: 255 Kan. 21,871 P.2d 1265
• Parties: STATE of Kansas, Appellee, v. Phillip MACK, Appellant.
• Court: Kansas Supreme Court

Page 1265

871 P.2d 1265

255 Kan. 21

STATE of Kansas, Appellee, v. Phillip MACK, Appellant.

No. 68,550.

Supreme Court of Kansas.

April 15, 1994.

Syllabus by the Court

1. A party is generally precluded from raising for the first time on appeal points not raised in the trial court.

2. An eyewitness identification procedure is discussed and found not to be unnecessarily suggestive.

3. Evidence that is otherwise relevant in a criminal action is not rendered inadmissible because it may reveal another offense.

4. A defendant's statement must be voluntary to be admissible. In determining whether a statement is voluntary, the court must consider the totality of the circumstances surrounding the taking of the statement. Mental capacity is one relevant factor bearing upon the determination whether a statement is voluntary.

5. K.S.A. 60-459(g)(4), regarding unavailability of a witness, is discussed and applied. Under the facts of this case, the trial court's failure to find a witness unavailable, although an abuse of discretion, is held to be harmless error.

Thomas Jacquinot, Sp. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs for appellant.

Robin A. Lewis, Asst. Dist. Atty., argued the cause, and Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

SIX, Justice:

This is an eyewitness identification case. The issues, in addition to defendant's identification by the victim's mother, are whether the trial court erred in: (a) admitting into evidence an incident similar to the crime charged, (b) instructing the jury on aiding and abetting, (c) failing to suppress certain statements made by the defendant to the police, and (d) excluding a statement made by the victim's brother, who was out of the country at the time of trial.

Phillip Mack, the defendant, was convicted of first-degree felony murder, K.S.A. 21-3401(b); aggravated robbery, K.S.A. 21-3427; and aggravated battery, K.S.A. 21- 3414. The facts of the murder were recently before us in Hamidian v. State Farm Fire & Cas. Co., 251 Kan. 254, 833 P.2d 1007 (1992). Our jurisdiction is under K.S.A.1993 Supp. 22-3601(b)(1) (a direct appeal from a conviction of a class A felony or if a maximum sentence of life imprisonment is imposed). Our standard of review on the evidentiary issues is abuse of discretion. State v. Coleman, 253 Kan. 335, 344, 856 P.2d 121 (1993). We find no prejudicial error and affirm the trial court.

Facts

During the late evening of January 25, 1989, Saed Razizadeh, the victim, was driving his car with his mother, Mrs. Hamidan; his brother, Seid; and Seid's girlfriend as passengers. The car was bumped suddenly from behind on Shawnee Mission Parkway in Johnson County. Saed's mother, who was sitting in the passenger seat, stated that an individual wearing a beige raincoat that fell below the knee and with "one sleeve in and the other sleeve ... hanging over his shoulder" got out of the other car, came past the passenger window, and went around Saed's car. She said that they "exchanged glances just casually." She saw the man face-to-face and later said that he had been the driver of the other car. At trial, she identified Mack as the man she had observed that night.

According to Mrs. Hamidan, she saw Mack holding a gun. Saed was holding Mack's wrist with the gun up in the air. She screamed and exclaimed, "Oh, my God. They are fighting," opened the car door, and jumped out. Saed was on the ground, and Mack was kneeling down, going through Saed's pockets. Saed was dead.

Mrs. Hamidan was shot in the left arm. She had a face-to-face view of the man who shot her. She was shaking and "looking at him begging him not to do anything to [her] child." At that point, her other son, Seid, stood behind her. She explained that she "knew that [Mack] wanted to shoot" Seid, so she moved to protect her son. A bullet hit her in the right arm. At the time she was shot, she was looking at the assailant and "concentrating very hard on him so I could control what was happening in case he wants to make a move or something." Later, she discovered a third bullet lodged in her purse. Mrs. Hamidan did not see anyone else in the car Mack was driving. She was taken to the Kansas University Medical Center. The doctor testified that her injuries were quite severe. She was hospitalized from the early morning hours of January 26 until February 3, 1989.

Scott Niswonger was driving on 63rd Street to the east in Kansas City, Missouri, on January 25, 1989, when his car was bumped from behind by another car. Niswonger stopped, got out of the car, locked his door, and walked around his car to see where it had been hit. The driver of the other car walked over to Niswonger, spoke to him briefly, pulled a gun out of his pocket and stuck it up against Niswonger's arm, saying, "Give me your money." Niswonger replied, "I don't have any money." Niswonger was shot in the elbow. Stunned, he started to run and was shot in the right hip. He kept running, turned around, and observed the assailant hitting the passenger side window of Niswonger's car. He assumed the man was after his checkbook and credit cards. He saw the assailant's car drive away with another person in the car. He described the shooter as a black male who was wearing a knee-length overcoat and a hat pulled down over his face. The car that had hit his car was a light colored, two-tone, rusty vehicle "like a Buick Regal." Niswonger never positively identified his assailant. Laboratory examinations confirmed that the .22 caliber cartridge casings discovered at the scene of both of the shootings were fired from the same gun. The Niswonger incident occurred approximately one-half hour after the murder of Saed.

Detective Richard McBrien honored the family's request to delay the interview of Mrs. Hamidan. Mrs. Hamidan did not speak English. Seid, her son, was used as an interpreter. Detective McBrien testified that Seid "was very emotional" and spoke "fractured English." Several questions had to be repeated during the interview. Mrs. Hamidan described the events and the shooter, including the fact that he had a patch of " 'white, curly hair' " on his head. She told McBrien that she could identify the person who shot her son. At the conclusion of the interview, McBrien showed her a videotape lineup. The detective explained at trial that the videotape included the primary suspect, Rodney Mann, but did not contain Mack. Mrs. Hamidan was unable to identify anyone in the videotape lineup. On cross-examination, McBrien said that Mrs. Hamidan expressed concern about poor lighting conditions and the absence of her eyeglasses at the murder scene.

Metro Squad police officers responded to a call regarding a stolen car that matched the description of the vehicle which had been involved in Saed's murder. They located a "white over blue" 1979 Buick Regal with Missouri license plates. A forensic chemist concluded that the paint chips taken off the Buick were from Saed's car.

The investigating detectives looked for a man who had a street name of "Bay Bay." Mack, answering to "Bay Bay", was interviewed by the police. He was free to leave any time. The interview was voluntary. According to Detective McBrien, when Mack provided information that was directly related to the homicide, he was advised of his Miranda rights. Mack said that he understood his rights. He explained the events related to Saed's death and implicated Arthonio Watkins as having been present and Rodney Mann as the shooter. The officers conducted a videotape interview. (The videotaped interview of January 30, 1989, shows Mack with a white patch of hair.) Mack again was read his Miranda rights. He signed a written rights waiver form. During the videotaped interview, Mack related details of Saed's murder and of the Niswonger shooting. He denied that he was the shooter but admitted to being present at both crimes with Watkins and Mann.

One detective noted that Mrs. Hamidan was upset and started to cry when he explained, on January 31, 1989, that they were at the hospital to show her lineups. He gave her the three photo lineups. Mrs. Hamidan did not identify anyone in the photos. All three suspects, Mack, Mann and Watkins, appeared once in both the photo and videotape lineups. The detectives showed Mrs. Hamidan the videotape lineup. After she observed the entire videotape lineup, she stated that she was interested in again seeing person number 4, who was Mack. The detectives replayed the videotape lineup and again she said that she wanted a better look at number 4. A detective explained that he tried to pause the tape on that position, but static lines appeared every time, distorting the image. Mrs. Hamidan said the picture looked familiar but that she was not comfortable with saying that number 4 was the shooter.

Mrs. Hamidan viewed different photographs in April 1989, just before her departure from the United States. She appeared to have recovered from her injuries and was not on any medication. The detective showed her three Polaroid photographs, one each of Mack, Watkins, and Mann. Seid was present to act as an interpreter. The detective

"explained to [Seid] that I was going to show them--show her some photographs, and that it didn't necessarily mean that she had to pick out anybody. I needed to show them to her to see if she recognized any one of these individuals as being the person who shot her and shot her son, and I gave him a very strong statement as far as saying that we had to be positive; that we could not guess on profile or we think or we thought. It had to be positive, and if this person wasn't there, he just simply wasn't there."

Mrs. Hamidan began to cry uncontrollably when shown the photographs. Seid said that Mrs. Hamidan recognized the shooter. She pointed to Mack's photo.

The detective then showed Mrs. Hamidan two videotapes, each...