State v. Reed

• Decision Date: 27 October 1979
• Docket Number: No. 50758,50758
• Citation: 601 P.2d 1125,226 Kan. 519
• Parties: STATE of Kansas, Appellee, v. James L. REED, Appellant.
• Court: Kansas Supreme Court

Page 1125

601 P.2d 1125

226 Kan. 519

STATE of Kansas, Appellee, v. James L. REED, Appellant.

No. 50758.

Supreme Court of Kansas.

Oct. 27, 1979.

Syllabus by the Court

1. Under the provisions of K.S.A. 60-456(B ), the qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial court and its rulings thereon will not be disturbed on appeal in the absence of an abuse of discretion.

2. Although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the evidence.

3. Lineups that are unnecessarily suggestive or conducive to irreparable mistaken identification are forbidden by the due process clause of the federal constitution.

4. Relevant evidence means evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(B ).

5. To be admissible evidence must be confined to the issues but need not bear directly upon them. For evidence of collateral facts to be competent there must be some natural or logical connection between them and the inference or result they are designed to establish.

6. In an appeal from convictions of rape and aggravated kidnapping the record is examined and it is Held the trial court did not err in rulings made concerning the admissibility of evidence or in overruling a motion for discharge.

Camille Nohe, Topeka, argued the cause, and Albert D. Keil, Topeka, was with her on brief, for appellant.

Gene M. Olander, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Joan M. Hamilton, Asst. Dist. Atty., were with him on brief, for appellee.

KAUL, Justice:

Defendant-appellant, James L. Reed, appeals from convictions by a jury of rape (K.S.A. 21-3502) and aggravated kidnapping (K.S.A. 21-3421). The critical issue at trial was the identification of defendant as the perpetrator of the crimes charged.

Summarized the state's evidence disclosed that on the evening of June 16, 1978, the victim was walking to Stormont-Vail Hospital in Topeka where she was employed as a nurse's aide. Her hours of employment were from 11:00 p. m. to 7:00 a. m. When she was about three blocks from the hospital she was accosted by a man, armed with a knife, who grabbed her around the neck and forced her into an automobile.

The assailant drove through the city to southeast Topeka where they reached a place described by the victim as a grassy, weedy field. The assailant was armed with a knife during the entire period and also threatened the victim with a gun but never produced it. The assailant forced the victim to remove her clothing, walk across the street to a field and lie down in a place where the weeds were high where he raped her. The assailant then drove the victim to a point a few blocks from the hospital and released her.

The victim ran to the hospital and informed her supervisor of the events which had occurred. A "rape kit" examination was immediately performed and the victim's clothing was taken. The victim was then taken to the Topeka Police Department where she gave a statement to Detective Mosby. Additional facts will be developed as they are relevant to the points raised.

As his first point of error defendant contends the trial court erred in denying defendant's motion to admit expert testimony in the field of eyewitness identification. By pretrial motion defendant sought the admission of the testimony of Dr. Lawrence Wrightsman, Chairman of the Department of Psychology at Kansas University, who was described by counsel as "an expert in the field of eyewitness identification." The expert testimony was offered to show the jury reasons why an identification such as the one in the present case could be unreliable. Defendant takes the position that juries place too much weight on identification testimony and that expert testimony was necessary to show that scientific studies have drawn into question the reliability of such testimony under facts similar to this case. Defendant makes no claim that the victim suffered from any specific organic or emotional disability that would have affected the reliability of her identification of defendant. The trial court rejected the proposed evidence.

The admissibility of expert opinion testimony is controlled by K.S.A. 60-456(B ), which reads as follows:

"If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) Within the scope of the special knowledge, skill, experience or training possessed by the witness." Emphasis supplied.

Under the statute we have repeatedly held that the qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial court. Spraker v. Lankin, 218 Kan. 609, 613, 545 P.2d 352 (1976); In re Estate of Minney, 216 Kan. 178, 182, 531 P.2d 52 (1975); Hubbard v. Havlik, 213 Kan. 594, 607, 518 P.2d 352 (1974).

The basis for the admission of expert testimony is the need to assist the jury under the facts of the particular case. Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978). Concerning limitations on the admissibility of the testimony of an expert witness, we held in Massoni v. State Highway Commission, 214 Kan. 844, Syl. P 3, 522 P.2d 973 (1974):

"Opinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence."

The question presented in the instant case is whether the proposed expert testimony would have materially aided the jury or whether questions relating to the reliability of the victim's eyewitness identification testimony are within the normal experience and qualifications of the jury. While the precise question here has not been before this court we have considered, generally, the limitation of expert testimony with respect to the credibility of witnesses. We held in Smith v. Estate of Hall, 215 Kan. 262, Syl. P 3, 524 P.2d 684 (1974):

"An expert's opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence."

The identical question was recently considered by the 10th Circuit Court of Appeals in United States v. Brown, 540 F.2d 1048 (10th Cir. 1976), Cert. denied 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977). The case involved the eyewitness identification of a defendant in the robbery of a savings and loan office. The proffer, as in the instant case, was the testimony of a professor of psychology who was described as an expert in the field of eyewitness identification. In affirming the trial court's exclusion of the testimony the court relied on the proposition that expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of laymen and that it cannot usurp the function of the jury if such testimony touches the very issue before the jury. A similar result is reached in other published opinions. See United States v. Watson, 587 F.2d 365 (7th Cir. 1978); United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973); Jones v. State, 232 Ga. 762, 208 S.E.2d 850 (1974). Defendant has been unable to cite a published opinion which endorses the use of expert identification opinion evidence in a case such as this.

We find no error in the trial court's refusal to admit the testimony in question under the facts and circumstances shown.

In his second point defendant claims the trial court erred in denying defendant's pretrial motion to suppress testimony relating to a precharge photographic lineup. Defendant argues the lineup was impermissibly suggestive and conducive to misidentification.

The identification in question took place on August 7, 1978. Detective Mosby asked the victim to view certain photos. There were two stacks of photos, five black and white, and six colored. Detective Mosby shuffled the black and white photos first and handed them to the victim. She looked through the photos momentarily and then identified one. The photograph was of the defendant. The victim was then handed the six colored photos. She once again identified defendant. No indication was made to the victim that she had picked the right man after she looked at the black and white photos.

Defendant's principal argument that this photo lineup was impermissibly suggestive is based on the fact defendant's photograph is the only one which appeared in both sets. Defendant notes the statement by the United States Supreme...