State v. Mitchell, 55128

• Decision Date: 21 October 1983
• Docket Number: No. 55128,55128
• Citation: 672 P.2d 1,234 Kan. 185
• Parties: STATE of Kansas, Appellee, v. Steven P. MITCHELL, Appellant.
• Court: Kansas Supreme Court

Page 1

672 P.2d 1

234 Kan. 185

STATE of Kansas, Appellee, v. Steven P. MITCHELL, Appellant.

No. 55128.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. An in-court identification is capable of standing on its own, despite a deficient pretrial confrontation, if it is based upon a witness' observation at the time of the occurrence.

2. It is not an abuse of discretion for trial judges, on their own motion, to stop questioning by counsel and advise them as to the correct manner in which to present evidence for admission.

3. Failure to give defense counsel's oral request for a specific cautionary instruction on eyewitness identification is not reversible error when the jury instruction given by the trial court includes the substance of the requested instruction.

4. Failure to submit a written instruction does not preclude the court on appeal from reviewing it if the record clearly reflects the objection, shows the requested instruction, and particularizes the grounds for the objection.

5. The duty to instruct on lesser included offenses occurs only when there is evidence introduced at trial under which the defendant might reasonably be convicted of the lesser offense.

6. A juror may not divulge what considerations influenced the jury in arriving at its verdict. A juror may not testify that the verdict was arrived at by considering matters the jury was instructed to disregard.

7. When requested, the mandatory language of K.S.A. 22-3411a is binding upon trial courts in exercising peremptory jury challenges. Although the Supreme Court has the constitutional power to determine court procedure, it may cooperate with the legislature in the exercise of that power. The Supreme Court's acquiescence in K.S.A. 22-3411a is an example of cooperation. The failure of the trial court to comply with K.S.A. 22-3411a, however, was not prejudicial under the circumstances of this case.

Dennis L. Phelps, Wichita, argued the cause and was on the brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause and, Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

HERD, Justice:

This is an appeal from a jury conviction for aggravated robbery. K.S.A. 21-3427.

On Saturday, February 20, 1982, at approximately 11:00 p.m., a young black male entered the Phoenix Club, a private club on 21st Street in Wichita. The black male walked up to the bar and the bartender, Steve Virden, approached him. The black male pulled a gun on Virden and instructed him to turn over his money. Virden went to the cash register behind the bar, followed by the robber. Virden removed all the money and handed it to the robber, who then walked to the end of the bar, stopped, placed his gun directly between two customers, Robert Ortiz and John Erhartic, and instructed Virden not to move.

At trial, the State called seven witnesses. Six of the witnesses were customers at the Phoenix Club the night of the robbery. The seventh witness, Steven Virden, the bartender, was the only witness who positively identified the appellant, Steven P. Mitchell, as the robber.

Appellant initially challenges the victim's pretrial identification of him in an out-of-court lineup.

On February 22, 1982, two days after the robbery, Steve Virden viewed a lineup at the police station. After picking the appellant out of the lineup, Mr. Virden stated, "[T]here was no doubt in my mind that was the gentleman," who had robbed the bar. Appellant claims this pretrial identification was suggestive because he was the only light complexioned black person in the lineup; the only individual with light facial hair (another individual had a dark moustache); and was four inches taller than three persons in the lineup and two inches taller than one person in the lineup. In the appellant's motion to suppress the evidence of the out-of-court identification, he relied upon the preliminary hearing testimony of the identifying witness, Steve Virden. It is evident from Virden's preliminary hearing testimony that the variations in height and weight among the lineup participants did not make a significant impact.

In State v. Baker, 227 Kan. 377, 607 P.2d 61 (1980), this court stated the test regarding the propriety of the pretrial lineup was whether it was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 227 Kan. at 378, 607 P.2d 61. See also State v. Hall, 220 Kan. 712, 717, 556 P.2d 413 (1976); State v. Deffenbaugh, 217 Kan. 469, 536 P.2d 1030 (1975). It must be remembered "reliability is the linchpin in determining the admissibility of identification testimony ...." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Thus, an in-court identification by the identifying witness is capable of standing on its own, despite a deficient pretrial confrontation, if it is based on a witness' observation at the time of the occurrence. See State v. Marks, 231 Kan. 645, 649, 647 P.2d 1292 (1982).

In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), the Supreme Court suggested a number of factors to be considered in resolving the reliability of an identification:

"[T]he 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."

See also State v. Marks, 231 Kan. 645, 647 P.2d 1292; State v. Baker, 227 Kan. 377, 607 P.2d 61; and State v. Bey, 217 Kan. 251, 257, 535 P.2d 881 (1975).

At trial the identifying witness, Steve Virden, identified the appellant as the individual who had robbed the bar. The foregoing factors support the reliability of the identification. Virden's opportunity to observe the robber consisted of close range visual contact with the robber making no attempt to conceal his identity. The description Virden gave the police after the robbery quite accurately fits the description of the appellant. The time between the crime and the in-court identification was only three and one-half months and finally, appellant did not challenge the reliability of the in-court identification. We find no error.

During the trial, defense counsel questioned Steve Virden concerning his testimony at the preliminary hearing. During this examination the court on its own motion interrupted defense counsel's questioning and instructed him to quote directly from the transcript when cross-examining the witness about his preliminary hearing testimony. Defense counsel continued to paraphrase the preliminary hearing testimony. The court again interrupted and stated the purpose of requiring a literal reading of the preliminary hearing transcript was to prevent the jury from guessing at what was testified to at preliminary hearing. The appellant claims these interruptions resulted in "irreparable prejudice with the jurors" by implying defense counsel was engaged in improper questioning of the witness.

We recognize "it is a fundamental tenet of the law that the judge be scrupulously impartial in presiding at the trial of a lawsuit and that he refrain from conduct which might influence the jury in its findings ...." State v. Anicker, 217 Kan. 314, 317, 536 P.2d 1355 (1975). A judge, however, has broad discretion to control examination and "reviewing courts will not interfere unless discretion has been abused." State v. Crouch, 192 Kan. 602, 606, 389 P.2d 824 (1964). In another case, outside of Kansas but quite similar to the instant case, the court held: "A trial judge does not become an advocate in litigation by stopping on his own motion ... an improper line of inquiry." United States v. Wright, 542 F.2d 975, 979 (7th Cir.1976), cert. denied 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977).

Here the trial judge correctly advised appellant's counsel as to the proper manner in which to cross-examine a witness concerning prior inconsistent testimony. This issue is without merit.

The appellant next questions the trial court's cautionary instruction concerning the eyewitness identification.

In the instant case the eyewitness identification of the appellant was a decisive issue. The trial court asked both parties to submit requested instructions in writing. Defense counsel did not do so. During a discussion of the instructions intended to be used, the appellant objected to the court's use of an instruction which incorporated the factors enumerated in the syllabus p 2 of State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). The appellant orally requested the court use the actual instruction approved by this court in the body of Warren. The court rejected appellant's request and used its own instruction which adopted the language of the court's syllabus in Warren. The court told defense counsel it would accept his oral request for an instruction in lieu of a written one but suggested counsel reduce his request to writing to preserve the question for appeal. Defense counsel failed to do so.

This court has held in the past that an orally requested instruction may not be considered on appeal since it does not meet the writing requirement of K.S.A. 22-3414(3) which states:

"At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests."

In State v. Reed, 213 Kan. 557, 562, 516 P.2d 913 (1973), we noted: "There is no statutory provision for an oral request for an instruction. Hence we cannot say that the trial court erred in refusing to honor the defendant's oral request for a specific instruction." In the instant case, however, despite appellant's failure to submit a written instruction, the court recognized the objection and...