State v. Reed

• Decision Date: 18 February 2011
• Docket Number: No. 102,390.,102,390.
• Parties: STATE of Kansas, Appellee,v.Ernest L. REED, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 372

247 P.3d 1074

STATE of Kansas, Appellee,

v.Ernest L. REED, Appellant.

No. 102,390.

Court of Appeals of Kansas.

Feb. 18, 2011.

[247 P.3d 1076 , 45 Kan.App.2d 372]

Syllabus by the Court

1. A review of the decision to deny a motion to suppress eyewitness identification involves a mixed question of fact and law. The factual basis for the district court's decision to deny such a motion and permit introduction of eyewitness identification evidence is reviewed using a substantial competent evidence standard. The ultimate legal conclusion that the eyewitness identification is admissible in light of the factual findings is reviewed de novo.

2. A two-step analysis is used to determine admissibility of eyewitness identification. First, the court determines whether the procedure used for making the identification was unnecessarily suggestive. If so, the second step requires an analysis of whether the unnecessarily suggestive procedure led to a substantial likelihood of misidentification. The sole purpose of this second step is to assess reliability of the identification. This assessment must be made in light of the totality of the circumstances surrounding the identification.

3. Although show-up identifications are not favored, Kansas courts have approved such one-on-one confrontations shortly after the commission of an offense on grounds that time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation.

4. The reliability factors for eyewitness identification analysis set forth in State v. Hunt, 275 Kan. 811, 817–18, 69 P.3d 571 (2003), are discussed and applied.

5. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.

6. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime.

7. When a party does not object to an instruction, an appellate court applies a clearly erroneous standard of review. Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.Jeffery B. Ebel, assistant county attorney, Ellen H. Mitchell, county attorney, and Steve Six, attorney general, for appellee.Before BUSER, P.J., STANDRIDGE, J., and BUKATY, S.J.STANDRIDGE, J.

Ernest L. Reed appeals from his convictions of aggravated robbery, aggravated assault, and obstruction of official duty. Reed argues the district court erred in failing to suppress the eyewitness identification of him, in denying his request for a unanimity jury instruction, and in giving a deadlocked jury instruction prior to deliberations. For the reasons stated below, we affirm.

Facts

On October 17, 2008, Michael Orabuena went by himself to see a movie at the Central Mall in Salina, Kansas. The movie ended at about 11:30 p.m. Unable to find a ride home, Orabuena called his mother on a cell phone. As he began walking back toward the mall, two men assaulted and robbed Orabuena at gunpoint. The men got away with a Bic lighter, a $10 bill, and six $1 bills, all of which they forcibly removed from Orabuena's pocket.

Orabuena called 911 to report the incident. As he was telling the police what happened, he observed the men walk away and eventually meet up with two other people. Orabuena continued to watch the men until he could no longer see them, after which he went to the mall as instructed by the police.

At 11:53 p.m., Officer Aaron Carswell of the Salina Police Department was dispatched to investigate a report of armed robbery at the Central Mall. He was advised to look for several people crossing Ninth Street westbound from the mall. As he approached the area, he saw four people crossing Ninth Street. He pulled his marked vehicle in front of the individuals so he could talk to them. As he stepped out of the vehicle, one of the individuals began to run. Carswell yelled for him to stop, but the individual failed to do so. Carswell, accompanied by his police dog and two other officers who had just arrived at the scene, chased the individual on foot. Although Carswell and Officer Michael Kohman briefly lost sight of the individual during the chase, the individual eventually was apprehended by Officer Paul Forrester. The individual was identified as Reed and placed in the back of a patrol car as a suspect.

When he was arrested, Reed had in his possession one $10 bill and seven $1 bills. Reed did not have a lighter or a gun in his possession, and none of the officers who participated in the chase saw Reed drop anything as he was running. Officer Carswell conducted a brief search of the area around the mall where the robbery occurred to no avail. Officer Kohman similarly failed to discover anything in a cursory search of the route he had taken in his attempt to apprehend Reed. The officers did not conduct a search of the route used by Reed to flee the scene.

Upon meeting up with Orabuena at the mall, an officer asked him if he was willing to look at a suspect the police had taken into custody to determine whether he could identify the suspect as one of his assailants. After agreeing to do so, Orabuena was escorted to the police car to see if he recognized Reed, who was sitting in the back seat of the patrol car wearing handcuffs. Orabuena identified Reed as the person who robbed him. Two days later, a small silver gun was found in the yard of an apartment complex near where Reed had run.

Reed was charged with one count each of aggravated robbery, aggravated battery, aggravated assault, and obstructing official duty. Prior to trial, Reed filed a motion to suppress all testimony and evidence related to Orabuena's identification of him. In support of this motion, Reed claimed the identification procedure employed by law enforcement—a one-person show-up—was unnecessarily suggestive and created a substantial likelihood of irreparable misidentification.

At the suppression hearing, Officer Breanna Buechman testified that Reed was transported in her patrol car to the mall where Orabuena was waiting. Buechman “ ‘asked [Orabuena] if he would be willing to look at the subject [she] had in [her] car and see if he could ID him or not.’ ” Orabuena agreed, so Officer Buechman rolled down the back window on the side of the car where Orabuena was standing and turned on the lights inside her patrol car. Orabuena remained outside of the police car, and Reed remained seated in the police car wearing handcuffs. Officer Buechman testified that Orabuena “ ‘positively identified [Reed] as the person that pulled the handgun on him and that had pistol-whipped him.’ ”

Orabuena testified that he was talking to his mother on a cell phone while walking toward the mall when he heard a noise from behind that prompted him to turn around and notice that two black males were running toward him. Because the men were a “good distance” away when he first noticed them, Orabuena continued to walk toward the mall but stepped off the path into the grass hoping the men would run by him. As the men drew near, he told his mom to hold on. A split second later, one of the men hit him in the back of the head with a pistol. Orabuena turned around and saw one of the men pointing a gun at him. He had never had a gun pointed at him before. Orabuena described the gun as a little silver pistol. As he looked at it, one of the men told him to turn back around. After he turned away, one of the men asked, “ ‘Where's the shit’ ”? Because Orabuena understood this to be a question asking where he kept his money, he responded that it was in his pocket. Orabuena had $16 in his pocket—a $10 bill and six $1 bills. He also had a Bic lighter. After reaching into Orabuena's pocket and taking both his money and his lighter, one of the men hit Orabuena a second time with the pistol and then hit him again in the head with a fist. The men then stepped back, and one man pointed the gun at Orabuena's head and told him to start running or they were going to shoot him. Orabuena just stared at the men and eventually walked away. The actual robbery took about 2 to 3 minutes.

When Orabuena called 911, he described the men only as two black males. At the suppression hearing, however, Orabuena testified that both his assailants were wearing dark-colored clothing and hoodie sweatshirts. He further testified that one of the men had a “dark figure” on the cheek. It is not clear from the record whether this description was ever attributed to Reed.

According to Orabuena, a police officer had him look at someone in a patrol car and asked him to identify the man and determine if he was the person who robbed him. Orabuena testified that he did not feel any pressure to identify the suspect in the car as the person who robbed him. Orabuena looked at the suspect through the car window and was about an arm's length away at the time of the identification. Orabuena was standing outside the car, and the suspect in the car was in the back seat facing forward. Orabuena did not think the car's dome light was on at the time. Orabuena looked at the suspect for about a minute before identifying the man as the person who robbed him. Orabuena testified that he had no doubt that the man in the car was the person who robbed him. Although not realizing it until he arrived home, Orabuena also testified that the man he identified had been sitting two seats down to his left during the movie.

Orabuena testified he had not used any alcohol or drugs that evening. His only...