State v. Sutton
| Decision Date | 04 November 2022 |
| Docket Number | 124,390 |
| Parties | State of Kansas, Appellee, v. Lance Paige Sutton, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Lyon District Court; John E. Sanders, judge.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Amy L Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Cline, P.J., Atcheson and Coble, JJ.
Following two men's uninvited entry into and removal of money from a home with three siblings inside, a jury convicted Lance Paige Sutton of aggravated burglary and aggravated robbery. A significant part of the State's evidence against Sutton was the eyewitness identification by the oldest of the siblings, R.D., despite that R.D.'s younger siblings L.D. and S.D., did not specifically identify Sutton at the time of the crime. In this direct appeal, Sutton raises two issues: (1) the trial court failed to provide the cautionary eyewitness identification jury instruction, and (2) the trial court erred by admitting hearsay evidence over Sutton's objection. Finding no clear error for the district court's failure to provide the cautionary instruction, and finding the evidentiary issue was not preserved for appeal, we affirm Sutton's convictions.
On the morning of October 28, 2020, R.D.-age 19-was home watching over his younger sister, L.D., and his younger brother, S.D., who were attending online school from home. Their parents were at work. S.D. was doing his schoolwork in the downstairs living room. L.D. was upstairs in the bathroom taking a shower. R.D. was in his upstairs bedroom asleep. Sometime between 10 a.m. and 11 a.m., S.D. heard knocking but saw no one at the door, so he went upstairs to wake R.D. R.D. checked but did not see anyone, so he went back upstairs to sleep, and S.D. went back downstairs. Soon thereafter, S.D. saw two men enter the house without being let in and proceed toward the stairs. S.D. heard one of the men say "'[n]ever mind'" and then both men left the house.
About five minutes later, S.D. observed the men return to the house and both went upstairs. S.D. saw two men on the stairs who were wearing hoodies and beanies. One man was skinny, and S.D. testified the other man was "in between" skinny and heavyset. S.D. testified he looked from the second living room to the stairs and when one man looked back at him, S.D. ran back into the first living room. The heavier set of the two men came downstairs, walked back and forth from the first to the second living room, and then exited the house. S.D. heard the other man knocking on his brother's door and heard yelling and mumbling. S.D. testified that the skinnier of the two men stayed upstairs for a longer time. S.D. later saw the skinnier man come downstairs and leave the house running. S.D. also testified that he saw the skinnier man try to hide a gun on his hip when he was leaving. S.D. testified that he only got a good look at the skinnier man and recalled the man had a scar on his face. S.D. identified the robber as Sutton during trial.
L.D. testified that at the time of the incident, she was in the upstairs bathroom taking a shower during a break from her schoolwork. After taking a shower, L.D. went back into her room to get dressed and closed her door. L.D. then heard someone yelling outside her room and saw someone in the doorway of R.D.'s room. L.D. only saw one person in the doorway, a black male who was wearing a dark blue sweater and a beanie, with a dreads or locks hairstyle. L.D. also testified that she saw the man had a gun, and when the man saw her, he tucked the gun into his waistline. L.D. went downstairs and saw a second man, wearing a dark hoodie, outside in the front yard looking "paranoid." L.D. went back upstairs, noticed R.D.'s door was locked, and heard screaming from inside the room. L.D. again went downstairs and proceeded outside to pretend to check the mail to see if the second man was still around, but he had left. While outside, L.D. then saw the man from upstairs leave the house in a hurry as he was tucking a gun in his waistband. L.D. testified she noticed that the man had a scar on his face.
R.D. testified at trial that he was asleep in his room when S.D. first knocked on his door and woke him up. R.D. went downstairs but did not see anybody. R.D. went back upstairs, closed the door, and lay down in bed. Soon after, R.D. heard another knock on his door, and when he opened the door, he saw two men standing outside his bedroom.
R.D. further testified that the two men were wearing sweats, hoodies, and beanies. R.D. described one of the men being heavy built and the other skinnier, and both men were about 6 feet tall and black. R.D. saw that the skinnier man standing about a foot away from him was holding a gun in his hand. R.D. recognized the heavier built man as a man named "Kenneth" (Kenneth Hopkins) because the man's brother was R.D.'s former classmate. R.D. testified that he did not know the taller man but was able to identify Sutton as the taller man at trial. R.D. also testified that Hopkins, the heavier-set man, did not come into his room.
R.D. testified that Sutton was standing about a foot in front of him with the gun pointed at his chest and was asking about a bag. Sutton then entered the bedroom and started searching through a cabinet. Sutton continued to have the gun pointed at R.D. and told him not to move or he would shoot him. Sutton then searched R.D.'s bed and found money under the blanket. R.D. testified that Sutton took $6,800 from the bed and ran out of the house. R.D. did not see where Sutton went after he ran from the house.
After Sutton left, R.D. checked to see if his sister and brother were okay and called his father. Once his father came home, they called the police. R.D. then went to the police department where he relayed what had happened. The officer provided R.D. a photo lineup at the police department and he picked Sutton from the lineup. The officer also provided L.D. the same photo lineup, but she could not identify Sutton and selected a different individual. Law enforcement did not present S.D. with the photo lineup.
At some point after the State charged Sutton with the crimes, he sent an apology letter addressed to R.D. to Lacey Douglas, who is a sister to both Sutton and Hopkins. R.D. then received messages from Douglas on Facebook, telling him she had something she needed to show him and asking him to come over to read the letter. Douglas contacted R.D. by video through Facebook to try to show him the letter. Although R.D. was able to see that Douglas had a letter, he could not read it through the video call. Douglas then read the letter aloud over the video call instead. R.D.'s parents were present during the video call and his father recorded the audio of the call on his cell phone.
Douglas testified during trial that sometime after Sutton's arrest, she received the letter from him. Douglas stated she contacted R.D. to diffuse any lingering anger because her family was being threatened. Douglas testified that she threw the letter away after reading it to R.D. She confirmed that she knew the letter was from Sutton because she recognized his handwriting. During his trial testimony, Sutton confirmed the letter was his but maintained his innocence. He said that he wrote that letter not to admit anything but so that he could get himself and his brother out of jail. During trial, the court allowed the audio recording of Douglas reading the letter to be played for the jury over Sutton's objection.
The jury found Sutton guilty of aggravated burglary and aggravated robbery. The district court sentenced Sutton to 206 months' incarceration with 36 months of postrelease supervision, in addition to $6,550 in restitution and $238 in court costs and fees. Sutton timely appeals.
Sutton raises two issues in his direct appeal. First, he argues the trial court erred by failing to provide a cautionary jury instruction regarding eyewitness identification testimony. Second, he contends the trial court erred by admitting the audio recording of Douglas reading Sutton's letter over his objection, which he maintains was hearsay testimony. We address each issue in turn.
The trial court did not commit clear error by failing to provide the eyewitness identification jury instruction.
Sutton contends that the trial court erred when it failed to give the jury a cautionary instruction concerning the varying eyewitness identifications. All three siblings described the two intruders as black men wearing dark pants or sweats, dark hoodies, and beanies, with one man being skinner and one being heavier set. And, both S.D. and L.D. reported seeing a scar on the skinner man's face. But although R.D identified Sutton in the photo lineup following the crime, L.D. identified another individual from the lineup. Because there was no physical evidence and the critical evidence connecting Sutton to the crime was the identification by R.D. and his siblings, Sutton argues the cautionary instruction was particularly important. The parties agree that the instruction was not requested at trial and neither party objected to its omission during trial. As noted by our Supreme Court in State v. Shields, 315 Kan. 814, 819, 511 P.3d 931 (2022):
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