State v. McCord

• Decision Date: 20 April 1993
• Docket Number: No. 18097,18097
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. John Martin McCORD, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 388

505 N.W.2d 388

STATE of South Dakota, Plaintiff and Appellee, v. John Martin McCORD, Defendant and Appellant.

No. 18097.

Supreme Court of South Dakota.

Considered on Briefs April 20, 1993.

Decided Aug. 25, 1993.

Mark Barnett, Atty. Gen., Charles D. McGuigan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Patrick M. Schroeder, Minnehaha County Public Defender's Office, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUE

On October 31, 1991, a Minnehaha County Grand Jury indicted John McCord (McCord) for First Degree Robbery. Thereafter, State additionally filed a Part II Information alleging McCord to be a habitual offender. Following a three-day trial ending on June 11, 1992, a Second Judicial Circuit jury returned a guilty verdict for First Degree Robbery. After a second arraignment on July 7, 1992, McCord admitted to the Part II Information. On August 28, 1992, McCord received a 50-year sentence with 40 years suspended upon condition that he violate no laws and be on good behavior following his release. By appeal filed October 14, 1992, McCord raises the following issue:

Did the trial court err by admitting into evidence two overlays prepared by a composite sketch artist which significantly altered the appearance of the original composite sketch of the robbery suspect?

Based upon the totality of the circumstances, we affirm.

FACTS

Shortly after 3:00 p.m. on October 19, 1991, while working behind the counter at the Renner Corner Store in Renner, South Dakota, Janice Reimnitz was approached by a male customer who had been playing video lottery. Apparently frustrated by his lack of winnings, he demanded the money from the register. Reimnitz complied by only giving him one and five dollar bills. Before Reimnitz handed over the larger denominations, a car pulled into the parking lot causing the robber to flee with these ones and fives and a six-pack of beer in hand. When the driver of the car, Laura Everson, came in the store, Reimnitz relayed what had happened and called the police.

After describing the man to law enforcement officers, Reimnitz then worked with Deputy Phil Toft of the Minnehaha County Sheriff's Department to develop a composite sketch of the robber whom she described as a white male, 5'4"' tall, blond medium length hair, gold wire-rimmed glasses, blue-checked shirt with a white t-shirt and blue jeans. She also noted that a tan "smaller to intermediate size car" had been parked on the north side of the building while this man had been in her store. A completed drawing was published in the local newspaper and distributed to police.

Mike Eggers, another store employee who left the store just prior to the robbery, was unable to describe the person who had been playing video lottery, but did recall seeing a cream-colored Volkswagen Rabbit parked at the store when he left. Laura Everson's description of the fleeing man somewhat varied from Reimnitz's version. Although she did not describe any facial hair or scars, she thought she saw a green Omni parked in the lot.

Through investigation and tips, police learned that a man with a large number of one dollar bills had been playing video lottery at the Little Coalinga Bar in Sioux Falls sometime after four o'clock that same day. After exchanging over 150 ones, which he claimed to have won gambling, for larger denomination bills, he called for a cab. Cab driver David Renes picked up a fare at Little Coalinga between 4:20 and 4:30 p.m. that day and took him to 503 North Indiana for a brief moment, to Northern Plains Seed Company for five to ten minutes, then to the Westside Casino where the customer threw approximately 40 ones on the back seat as payment for the $17.60 fare. The man asked for Renes' cab number so he could request the same cab later. After about two hours, Renes picked up the same man at Westside, drove him to the alley behind 503 North Indiana, and then back to Little Coalinga. Renes later drove this man to the Crow Bar, then eventually to the Baltic Corner. Except for the round trip to the Baltic Corner, all fares had been paid with one dollar bills.

After viewing a six-photograph line-up prepared by Deputy Steve Wagner, Renes and two Little Coalinga employees who previously encountered the suspect, identified the photo of John McCord as the man with the abundance of one dollar bills. Although Eggers and Everson could neither confirm nor deny that the man at Renner Corner was in the line-up, Reimnitz did select the photo of McCord. However, McCord's photo showed a man with mustache, sideburns, scar, a dimple on the chin, and a receding hairline--characteristics not contained in the composite drawing. On the other hand, McCord, an employee of Northern Plains Seed, resides at 503 North Indiana with his mother who owns a tan Volkswagen Rabbit.

At trial, McCord's mother testified that on October 19, while she used another son's vehicle for a shopping excursion, McCord remained at home to repair the Rabbit which had a habit of stalling. A neighbor confirmed that he had seen McCord working on the car that same morning. On October 22, 1991, the car was repaired at Sioux Falls Auto Service.

Christina Grillas, an acquaintance of McCord and his mother, claimed that she was at the McCord house at 3:00 p.m. (the time of the robbery) and spoke to McCord. Another alibi was supplied by McCord's brother, James, who claimed that, immediately after receiving his scheduled 3:00 medicine at the VA Hospital, he made a phone call to McCord. Although VA hospital records indicated that James did not receive any medicine around that time, a nurse conceded that mistakes do occur.

Called as an expert in identification, Deputy Toft explained differences and similarities between McCord and the description given to the police. Part of his testimony included drawing a mustache and hairstyle similar to McCord's and placing these "overlays" on the composite sketch as a way to show how the suspect/drawing would look had Reimnitz described such characteristics.

Testifying on his own behalf, McCord asserted that he had not been to Renner Corner on October 19 nor did he rob the store. He further claimed that he had attempted to drive the car to his boss' home for assistance concerning the car's repairs, but the car stalled after going a few blocks. Supposedly, he pushed the tan Rabbit into a nearby McDonald's parking lot, then walked across the street to the Little Coalinga bar where he played video lottery and drank several beers. After about 30 to 45 minutes, he left and pushed the car home, arriving shortly before 3:00, where he drank a couple more beers. Although he recalled the phone call from his brother, James, he did not remember Grillas' visit.

Sometime after talking to James and taking a bath, McCord called a cab to take him back to Little Coalinga. (He had told Deputy Wagner that he had walked to the bar.) He admitted to possessing a large number of one dollar bills and may have boasted that the money was gambling proceeds, but claimed that he was in the habit of secretly keeping a large stash of ones as petty cash for fishing and drinking. His brother had previously testified that he was familiar with McCord's practice of storing away ones because he does the same. McCord did not testify about any other establishments he was alleged to have visited that day.

After three days of trial, the jury returned a verdict of guilty of First Degree Robbery. Obviously, the jury did not believe McCord's story. This appeal, focused on Deputy Toft's expert testimony, followed.

DECISION

McCord asserts four reasons justifying his claim that the trial court abused its discretion in admitting the overlays into evidence: Improper expert testimony, irrelevant, prejudicial, and improper vouching and bolstering of the eyewitness' credibility. We shall address each reason seriatim.

A. Expert testimony was admissible.

We have long acknowledged that the trial court has broad discretion concerning the admission of expert testimony, and its decision on that matter shall be reversed only upon an abuse of that discretion. State v. Burtzlaff, 493 N.W.2d 1 (S.D.1992); State v. Hill, 463 N.W.2d 674, 676 (S.D.1990). A determining factor in admitting such testimony is: Would it assist the trier of fact in understanding matters that normally would not be within a layperson's breadth of knowledge? Hill at 677; State v. Swallow, 350 N.W.2d 606 (S.D.1984). Certainly, jurors have some experience and common sense knowledge of factors that may cause occasional mistakes in identification; however, they do not possess an expert's comprehensive training in assessing the reliability of identification. Hill at 677.

Prior to trial, McCord was on notice that State intended to use Deputy Toft to explain the identification process and to note similarities and differences between the composite drawing and the mug shot used in the photo lineup. As laymen do not possess the skill and experience to assess an eyewitness identification, the trial court is proper in allowing such expert testimony provided it does not invade the province of the jury. State v. Werner, 482 N.W.2d 286 (S.D.1992); State v. Huber 356 N.W.2d 468 (S.D.1984). Toft's testimony in no way answered the ultimate issue; it merely informed the jury as to why an eyewitness may not give a completely accurate description. We find Connecticut to be persuasive on this issue in holding that a police sketch artist is

permitted to give his opinion with respect to the similarities and dissimilarities of the facial features of the person depicted in the composite sketch and the defendant's photograph, and to give a similar opinion with respect to the composite sketch and the defendant in the courtroom.

State v. Palmer, 491 A.2d 1075, 1080 (Conn.1985). "The value of [Toft's] testimony is that it taught the jury how to view the materials before them by focusing their attention on the...