State v. Wheaton, 58811

CourtUnited States State Supreme Court of Kansas
Citation240 Kan. 345,729 P.2d 1183
Docket NumberNo. 58811,58811
PartiesSTATE of Kansas, Appellee, v. Lois WHEATON, Appellant.
Decision Date05 December 1986

Syllabus by the Court

1. Under the facts of this case expert testimony on the subject of eyewitness identification is inadmissible, as more fully stated in the opinion. Following State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981).

2. Juror misconduct is not grounds for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party's rights. The burden of proof is on the party claiming the prejudice.

3. Where alleged juror misconduct claimed as prejudicial is known by the party or his counsel before the verdict is rendered, and no objection is made, the party cannot later assert the misconduct as grounds for a new trial.

Jessica Kunen, Deputy Appellate Defender, argued, and Benjamin C. Wood, Chief Appellate Defender, was with her on brief, for appellant.

Robert A. Fox, Asst. Co. Atty., argued, and Robert T. Stephan, Atty. Gen., and Timothy J. Chambers, Co. Atty., were with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal by the defendant from her conviction of aggravated robbery (K.S.A. 21-3427) by a Reno County jury. Two issues are raised on appeal: whether the trial court erred in excluding expert testimony on eyewitness identification and in failing to question a juror concerning her ability to serve on the jury panel.

At approximately 11:50 p.m. on September 20, 1984, a woman entered a Kwik Shop at 17th and Lorraine in Hutchinson, Kansas. She looked at the clock, looked around the store, and eventually bought some Salem Light cigarettes. Kimberly Danowitz, the clerk who waited on this woman, described her to police as a short, heavyset, black female with short hair, wearing a shirt with a marijuana leaf on it.

At approximately 3:05 a.m., on September 21, 1984, the defendant was seen at the Stop 'N Shop at "A" and Adams. Patricia Herzfeld, the clerk on duty, knew the defendant because the defendant shopped there often. She stated the defendant was wearing a short-sleeved royal blue sweat shirt, grey sweat pants, and grey tennis shoes, and didn't appear to be drunk or ill. The defendant asked about breakfast food but decided to buy it elsewhere and left.

At approximately 3:20 a.m. that same morning, a lady entered the front door of the Stop 'N Shop at 30th and Plum just as the clerk, Carol Stout, was coming from the back room. The lady purchased a package of Kool cigarettes, and when Ms. Stout turned around to give the customer her change, there was a gun pointing at Ms. Stout's stomach. After Ms. Stout gave her approximately $150, the robber ordered Ms. Stout from behind the counter, held the gun to her back, walked her to the bathroom, and ordered her to remain inside. She remained in the bathroom ten minutes and then called the police. When the police arrived, Ms. Stout described the robber as a black female, between 36 to 42 years old standing 4'9"' to 4'10"', weighing 180-200 pounds with short hair, very large eyes and wearing a blue short-sleeved T-shirt, grey sweat pants, and tennis shoes. Several hours later, Detective Loren Smith attempted to make a composite picture from Ms. Stout's description of the robber. Ms. Stout was not pleased with the outcome of the composite, stating the eyes were not right, so Detective Loren showed her a series of photographs. Prior to showing her the photographs, the detective cautioned her that the photographs may have been taken years ago and to allow for age or glasses. The first group contained six photographs of black females, not including the defendant, all wearing glasses. Ms. Stout was shown a second group and selected the fourth picture, the defendant, as the robber. Later, at trial, Ms. Stout made a positive in-court identification of the defendant as the robber.

The defendant is a black woman, 40 years of age, approximately 5'5"' tall and weighs 180 pounds. A search of her apartment revealed no gun or money. However, at the time the defendant's apartment was searched, the defendant was wearing a blue sweat shirt with a marijuana leaf on the front and a pair of grey sweat pants. These pieces of clothing were recovered from the defendant and, at trial, when asked whether they could identify the sweat shirt, Ms. Danowitz recognized it as the one the defendant was wearing; Ms. Herzfeld recognized the sweat pants as those the defendant was wearing but felt the sweat shirt was too short in length; and Ms. Stout stated the color of the sweat shirt looked familiar but the marijuana leaf design did not. However, when the sweat shirt was turned inside out, it looked more familiar to her, as she remembered the rough-edged shoulder seams.

A friend of the defendant's, Irene Hubbs, testified that she and the defendant had moved clothes to the defendant's house around midnight. Ms. Hubbs then left. The defendant testified she then stayed at home with her nephew, drinking and playing dominos for almost two hours. They stopped playing dominos around 2:30 a.m., at which time the defendant went to the Stop 'N Shop at "A" and Adams for cigarettes. When Ms. Hubbs let herself into the house, at approximately 4:00 a.m., the defendant had returned home and was in the bathroom sick from drinking. Ms. Hubbs then helped the defendant into bed.

The defendant was charged and convicted of aggravated robbery and sentenced to from eight to twenty years. She brings this direct appeal.

The first issue asserted on appeal is that the defendant was denied her Sixth Amendment right under the federal Constitution to obtain witnesses in her favor when the district court ruled that expert testimony concerning eyewitness identification was inadmissible.

Prior to trial, defense counsel filed a motion requesting $2,000 in funds to hire an expert, Dr. Geoffrey R. Loftus, to testify on eyewitness identification. Defense counsel also sought a ruling on the admissibility of that evidence. At a hearing on that motion, defense counsel stated the expert testimony would be offered to explain the factors concerning the accuracy of eyewitness identification when a person is under stress and when there is a cross-racial identification, and the testimony would not be offered to tell the jury whether an eyewitness is right or wrong. The district court ruled the testimony was inadmissible pursuant to State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), and denied the defendant's request for funds.

In State v. Warren, 230 Kan. 385, 635 P.2d 1236, this court ruled the potential problems of mistaken identification by an eyewitness would be better solved by cautionary jury instructions, rather than admitting into evidence expert testimony on the scientific and psychological aspects of eyewitness identification. This court held a cautionary instruction should be given advising the jury of factors to consider in weighing the credibility of the eyewitness identification testimony when two conditions are met: (1) the eyewitness identification is a critical part of the prosecution's case, and (2) there is a serious question regarding the reliability of the identification. 230 Kan. at 397, 635 P.2d 1236. PIK Crim.2d 52.20 embodies the cautionary instruction and sets forth the factors which could affect the accuracy of the identification made by an eyewitness:

"1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting.

"2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence.

"3. Whether the witness had observed the defendant[s] on earlier occasions.

"4. Whether a significant amount of time elapsed between the crime charged and any later identification.

"5. Whether the witness ever failed to identify the defendant[s] or made any inconsistent identification.

"6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.

"7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification."

A cautionary Warren instruction was given in the instant case.

The defendant in State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982), made a similar argument to this court as the defendant makes today: the district court's refusal to order funds for the hiring of an eyewitness identification expert violated his due process rights by denying him the right to prepare his defense adequately. Based upon Warren, we found the expert testimony on the subject of eyewitness identification was inadmissible. 230 Kan. at 534, 639 P.2d 461. In response to the argument that a cross-racial identification was made by an eyewitness under stress at the time of the incident, we recognized those factors were important but noted they could have been and were elicited during other testimony. 230 Kan. at 535, 639 P.2d 461. The district court was found not to have abused its discretion in refusing to authorize funds for the hiring of an expert on eyewitness identification.

The precise issue presented to this court is whether we are willing to now overrule Warren and Reynolds, and allow expert testimony on eyewitness identification.

The defendant asserts that (1) most studies in the area of eyewitness identification have been conducted since Warren, (2) there is a recent trend toward allowing such testimony, and (3) cross-examination of the eyewitness, closing argument, and cautionary jury instructions are not sufficiently curative of the problems surrounding eyewitness identification.

The defendant cites four state court decisions and three federal circuit court decisions which have recently allowed admitting into evidence expert testimony on the reliability of eyewitness...

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