State v. Nesmith

• Decision Date: 12 June 1976
• Docket Number: No. 48163,48163
• Parties: STATE of Kansas, Appellee, v. Richard L. NESMITH, Appellant.
• Court: Kansas Supreme Court

Page 896

551 P.2d 896

220 Kan. 146

STATE of Kansas, Appellee, v. Richard L. NESMITH, Appellant.

No. 48163.

Supreme Court of Kansas.

June 12, 1976.

Syllabus by the Court

1. Where an in-court identification is challenged on the ground that the witness participated in unfair pretrial identification procedures, the test is whether the totality of the circumstances was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

2. If an in-court identification is based on a witness' observation at the time of the occurrence, the in-court identification is capable of standing even though the pretrial identification procedures may have been deficient.

3. In charging the jury in a criminal case, it is the duty of the district court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate language of the court.

4. In a prosecution for felony theft under K.S.A. 21-3701 the trial court should instruct the jury with respect to the element of value and should require the jury to make a finding as to the value of the property stolen.

5. Where the value of the property stolen is not in issue but is incontrovertibly established, failure to include the element of value is not 'clearly erroneous' so as to require reversal where no objection was made to the instruction given and no request was made for an additional instruction.

6. In a prosecution for aggravated burglary and felony theft it is held: (a) an in-court identification was properly admitted; (b) evidence seized from the person of the defendant incident to a lawful arrest and from his automobile under a search warrant was properly admitted; (c) the evidence was sufficient to sustain the convictions; and (d) the failure to instruct on the element of the value of the property stolen was not clearly erroneous under the particular facts of this case.

William D. Mize, Public Defender, argued the cause and was on the brief for appellant.

James L. Sweet, County Atty., argued the cause and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FOTH, Commissioner:

Richard L. Nesmith appeals from convictions for aggravated burglary and felony theft.

In the early morning of September 22, 1974, Tanya Ayers returned with her date to the home of her parents in Salina. She observed a person carrying something and walking between her home and that of a neighbor. The stranger disappeared and a car engine soon started; she and her date then followed a car which left from down the street. They observed two persons in that car; the driver appeared to be a man. She later was able to abserve the driver, whom she identified as Nesmith, when his car turned a corner and the lights of her vehicle shone on him. After making a U-turn she was also able to observe the passenger, the defendant's wife.

Upon Miss Ayers' return home her parents were aroused and it was established that property was missing from the house. The police were notified and Officer Ivey arrived about 2:30 a. m. Proceeding to the address to which the suspicious vehicle had been trailed the officer found Nesmith and his wife in the front seat of the car and placed them both under arrest.

The suspects and car were taken to the police station where the couple was booked and searched, and where the car was searched pursuant to a warrant. Mr. Ayers' lighter, pocketknife and silver dollar were found in the defendant's pocket and his watch was found hanging from the gearshift of the car. His wallet containing $73 in cash, Mrs. Ayers' purse containing $30 in cash, an ice bucket, a teapot, and a number of other household items identified by the Ayerses were found near the scene of the arrest.

Later that morning Tanya Ayers was called to the police station to make out reports. At that time she observed a photograph of the defendant lying on a desk, and she also observed the defendant himself seated in the booking cage. She testified that neither the photo nor the defendant were in any way called to her attention, nor was she at that time asked to identify either.

Four trial errors are alleged:

Appellant first claims error in permitting Tanya Ayers to make an in-court identification. The contention is that her identification was tainted by allowing her to view the single photo of Nesmith and to observe him in the booking cage. The test to be applied to the booking cage observation is whether in the totality of circumstances the incident was 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny due process of law. (Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199. See also, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; State v. Deffenbaugh, 217 Kan. 469, 536 P.2d 1030.) Similarly, the test as to the photographic identification is whether it was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' (Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. See also, State v. Colin, 214 Kan. 193, 519 P.2d 629.)

In Neil v. Biggers, supra, the United States Supreme Court enumerated the factors to be considered in evaluating the likelihood of misidentification: the 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 a the confrontation, and the length of time between the crime and the confrontation. Applying those factors, we note that Tanya had clearly seen the defendant in her headlights only a matter of hours prior to the station house identification and that she was unaided in recognizing the photo and the defendant at the police station.

As she further testified, neither the photo nor the defendant in the booking cage were brought to her attention. In the case of the photo it was simply lying or in the desk and she picked it up and recognized the man she had seen earlier in her headlights. This case is therefore unlike those cited by appellant: Kimbrough v. Cox, 444 F.2d 8 (4th Cir. 1971); United States v. Fowler, 439 F.2d 133 (9th Cir. 1971); Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (1969). In each of those cases the police approached the witness with a single photo and asked if that was the man. It also differs from United States v. Clark, 289 F.Supp. 610 (E.D.Pa.1968), 1968), cited by appellant, wherein witnesses viewed a group of men through a one-way mirror. That identification, much like a lineup, was improper due to lack of counsel under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.E.2d 1178.

In State v. Kearns, 211 Kan. 158, 505 P.2d 676, cert. den. 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77, this court considered a similar situation in which the complainant Zimmerman was called to the station to identify recovered property. While there he saw the men arrested for the crime at the far end of a room he passed through, and was told that the pair was being booked for stealing the items he came to identify. We said:

'. . . At a pretrial hearing on appellant's motion to suppress Zimmerman testified that, whole his glimpse of the two suspects at the police station may have jogged his memory, his identification of appellant was definitely based on what he saw in his store, and not on what he saw at the police station. . . . In addition, it is clear that such encounter as there was came about inadvertently, and not through any solicitation, ruse or scheme of the police. Zimmerman thought the information that appellant and Roberts were suspects came to him from a non-police connected source-he wasn't sure. Further, although the exact time of the incident does not appear in the record it does appear that Zimmerman was at the police station 'that evening,' following appellant's arrest at about 6:30 p. m. See State v. Kress, 210 Kan. 522, 502 P.2d 827; State v. Meeks, 205 Kan. 261, 469 P.2d 302, and cases cited. These factors-the short interval of time, the inadvertence, the independent in-court identification-together lead us to conclude that Zimmerman's identification of appellant was properly received.' (pp. 161-2, 505 P.2d p. 679.)

Kearns was followed in State v. Deffenbaugh, supra. There the complainant Menzie was called to the courthouse for a line-up and immediately upon emerging from an elevator recognized the defendant in a crowd and so informed a police officer. This court noted:

'. . . In regard to the confrontation between Menzie and defendant in the hall of the courthouse prior to the lineup the evidence is undisputed that it occurred through mere chance or accident. In State v. Kearns, (supra), we held that the fact a witness may have inadvertently observed the defendant at the police station within a few hours of his arrest does not render inadmissible an independent in-court identification based primarily on the witness's observations at the scene of the crime.' (217 Kan. at 472, 536 P.2d at 1033.)

Even if it be assumed the station-house procedures were irregular, the in-court identification stands on its own. 'If an in-court identification is based on a witness' observation at the time of the occurrence, the in-court identification is capable of standing even though the pretrial identification procedures may have been deficient (citations omitted).' (State v. Estes, 216 Kan. 382, 386-7, 532 P.2d 1283, 1287. And cf., United States v. Wade, supra 388 U.S. at 240, 87 S.Ct. 1926.) The witness here had an opportunity to view the defendant in circumstances so suspicious that her attention would have been focused closely on his features. She testified that her in-court identification was based solely on those...