State v. Shepherd, 54559

• Citation: 657 P.2d 1112,232 Kan. 614
• Decision Date: 14 January 1983
• Docket Number: No. 54559,54559
• Parties: STATE of Kansas, Appellee, v. Dennis SHEPHERD, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1112

657 P.2d 1112

232 Kan. 614

STATE of Kansas, Appellee, v. Dennis SHEPHERD, Appellant.

No. 54559.

Supreme Court of Kansas.

Jan. 14, 1983.

Syllabus by the Court

1. In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony. Following State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981).

2. The fact of minor discrepancies by the eyewitnesses to a crime in the description of a defendant does not alone make the failure to give an eyewitness testimony instruction error.

3. Some of the principles to be applied under K.S.A. 60-455 in considering and admitting evidence of other crimes or civil wrongs stated and applied.

4. Recantation of the testimony of a witness in a criminal case is looked upon with great suspicion. When a new trial motion is based upon the recanting of a prosecution witness' testimony, the weighing of the recantation is for the trial judge in passing on the merits of the motion. The same principles apply when the motion is based upon a recantation by one who, while not actually testifying against the defendant before, had previously put a different story on record.

5. The granting of a motion to remand a case from the appellate courts for the purpose of the trial court hearing a motion for new trial based upon alleged newly discovered evidence or for other trial court proceedings lies within the sound discretion of the appellate courts.

6. In filing a motion with an appellate court seeking to have a case remanded to hear a motion for new trial based upon newly discovered evidence, better practice suggests that the motion should set forth with some specificity sufficient details of the evidence to be presented to the trial court so the appellate court may determine in the first instance whether there are valid grounds to expect that a new trial might be granted by the trial court.

7. The appellate courts are not required to grant every motion to remand a case already on appeal absent a showing that the motion for new trial has merit and is not frivolous or an attempt to delay the appellate process.

8. In considering a motion to remand a case for further proceedings in the trial court, it is not the function of the appellate court to weigh and attempt to determine the credibility of the proposed evidence to be presented to the trial court. However, the appellate court may look to the allegations of the motion to remand to determine whether the proposed evidence, if proved, might warrant the granting of a new trial by the trial court. In doing so, the appellate court will consider the allegations in the same light and under the same principles as the trial court would view the actual evidence. All doubts or inferences arising from the allegations in the motion to remand should be resolved in favor of the appellant.

9. Principles relating to the withholding of exculpatory evidence by the prosecution considered and iterated.

10. The granting of a new trial for newly discovered evidence is in the trial court's discretion. A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon retrial. The credibility of the evidence offered in support of the motion is for the trial court's consideration. The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion.

Carl E. Cornwell, of Horner, Duckers & Cornwell, Kansas City, argued the cause and was on briefs, for appellant.

Scott K. Logan, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on brief, for appellee.

HOLMES, Justice:

Dennis Shepherd appeals his convictions by a jury of four counts of aggravated robbery (K.S.A. 21-3427).

Around midnight, April 28, 1981, two black males entered a Kansas City, Kansas, 7-11 store under the pretenses of buying some products and playing the amusement machines. One of the men asked the price of some typing paper. The other, identified later as Shepherd, attempted to obtain change for a dollar bill in order to operate the games. The night clerk responded that he was unable to open the register drawer just for change and suggested he would have to wait a short while until the register was opened to ring up the next sale.

Following some additional discussion about opening the cash drawer, the man went to the back of the store to wait and the clerk went about his routine chores. Shortly thereafter, the same two men appeared at the checkout counter with guns demanding that the clerk open the drawer and hand over the money. The clerk, however, being unfamiliar with the operation of the register for "no sale" transactions was unable to open it. One of the men struck the clerk with his gun.

During the robbery, there were customers both in the store and entering the store. These people were instructed by the gunmen to put their wallets and the contents of their pockets on the counter. One of the robbers later picked up these items and fled. The other took the still unopened cash register to the parking lot where he broke into it, removed the contents, and also fled. Before the robbers left they made their victims lie on the floor. The entire affair was observed by the wife of one of the victims who was waiting outside in her car. The robbery took at least five minutes but may have lasted as long as twenty to twenty-five or thirty minutes according to one witness' testimony.

Shortly before the Wyandotte County robbery, two black males robbed a Johnson County Quik-Trip store using the same general modus operandi. In the course of the investigation of the Wyandotte County crime, three witnesses to that crime were shown a film strip taken by automatic cameras in the Johnson County store and positively identified the defendant and his accomplice as the Wyandotte County robbers. The Wyandotte County victims and witnesses were also shown photographic lineups and viewed live lineups in which the defendant was always positively identified as one of the robbers in this case. He was also positively identified in court. The accomplice, one George Holliday, entered a guilty plea on the charges and named the defendant as his partner. Holliday, however, was not called to testify at trial. The defendant relied on an alibi.

At the close of the evidence, the defendant requested that the jury be given an instruction on eyewitness identification testimony pursuant to State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). The trial judge refused to give the instruction and defendant asserts as his first point on appeal that this constituted reversible error.

The defendant argues on appeal that inconsistencies among the testimonies of the four victims and the fifth eyewitness indicate the identification evidence to be unreliable. He points out that the witnesses were in disagreement as to the robber's attire and facial hair and as to which robber struck the store clerk. We also note the differences in testimony as to the duration of the offense.

In Warren we said:

"In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony." Syl. p 1. (Emphasis supplied.)

Inherent in the Warren decision is that the question of the propriety for the instruction lies with the trial court in the first instance.

The State contends that there was never a waver or doubt in the minds of the witnesses that the defendant was one of the robbers. Even though there may have been some minor discrepancies as to the description of the robber, that fact alone does not make the failure to give a Warren instruction error. The State also points out there was never any challenge to any of the lineups or any claim that the lighting was poor in the store during the robbery and that all the witnesses had occasion to observe the defendant's face for some period of time. This offense took considerably longer to complete than did the robbery in Warren.

The witnesses were consistent individually and their testimonies were all positive and unwavering. Although, given the defense of alibi in this case, identity was a critical part of the State's case, there was no serious question of reliability and the failure to give a Warren instruction did not constitute error.

For his second point on appeal the defendant argues that the court erred in allowing evidence of the Johnson County robbery to be admitted against him. The defendant had been convicted of that robbery before his trial in this case.

Prior to the admission of the evidence under K.S.A. 60-455, the court held a hearing to determine its relevancy, materiality, and possible prejudice to the defendant. Consistent with this court's holdings in State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), the trial judge made an admissibility determination outside of the presence of the jury and later gave a proper limiting instruction. The jury was instructed to the effect that evidence of the Johnson County robbery could only be considered for the limited purposes of determining "the defendant's identity, preparation, and opportunity," in the commission of the Wyandotte County crime.

The defendant's contention on appeal focuses on the prejudicial effect of the prior crimes...