State v. Young, 106,451.
| Citation | 297 P.3d 1194 |
| Decision Date | 29 March 2013 |
| Docket Number | No. 106,451.,106,451. |
| Parties | STATE of Kansas, Appellee, v. Michael W. YOUNG, Appellant. |
| Court | Court of Appeals of Kansas |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
Michael W. Young appeals from his convictions of aggravated kidnapping, aggravated robbery, kidnapping, and attempted rape. For the reasons stated below, we affirm his convictions.
On the morning of September 5, 2008, S.S. exited her Wichita home with her 3–year–old daughter, J.S., and her cousin, Justin Matthews. Matthews drove away in his car, while S.S. put J.S. into her truck. Before S.S. could back out of the driveway, a black Dodge Charger pulled up behind her truck and blocked her in. A man got out of the car and approached the window of S.S.'s truck. S.S. saw that the man had a badge and a handgun in a holster on his waist. He told S.S. that he was a detective and asked if her name was Sheri Harper. When S.S. said no, the man asked to see her identification and S.S. complied. The man told S.S. that he had a search warrant for her house and that he was looking for someone named Jason Butler. Despite S.S.'s denial that she knew anyone by that name, the man told her that the house was surrounded and she needed to let him inside. When S.S. tried to call Matthews on her cell phone, the man shook his finger in a way that S.S. interpreted to mean ‘ “No, don't do that,” ‘ so she hung up her phone. The man also prevented S.S. from calling to notify her employer that she would be late to work.
After waiting for S.S. to unbuckle and remove J.S. from her car seat, the man escorted S.S. and J.S. into the house, took the house keys from the door, shut and locked the door, and put the keys in his pocket. The man also “snatched” S.S.'s cell phone out of her hand and put it in his pocket. The man proceeded to look in all of the bedrooms on the first floor and then directed S.S. down into the basement. J.S. followed them downstairs. Once they reached the basement, the man grabbed S.S. around her neck in a headlock, held his gun to her head, and told her to “shut ... up or he was going to blow [her] ... brains out.” The man forced S.S. to lay down on the floor while he straddled her legs, held her wrists, and attempted to bind her wrists with zip ties. S.S. could hear J.S. screaming from the middle of the staircase. The man told J.S. to “ ‘[g]o back upstairs, Mommy is going to be okay.’ “
S.S. told the man that she wanted to tell J.S. she loved her if it was going to be the last time she saw her. When S.S. called J.S. to her, the man moved away. S.S. saw this as their chance to escape; she got up off the floor and began struggling with the man as she attempted to get back upstairs. S.S. heard her cell phone ringing in the man's pocket and noticed that the zipper of his pants was down. S.S. became angry, yelling at the man: “ ‘You're going to rape me and kill me in front of my child,’ “ as she fought to get upstairs. When they returned to the kitchen, the man told S.S. he was going to cut the zip ties loose, but S.S. continued to fight with him because she thought he was going to hurt her. S.S. and the man fought over a butter knife, and S.S. eventually pushed the man off of her and ran out the side door towards her truck in the driveway. The man chased S.S. with his gun out as S.S. grabbed J.S. and ran across the street to a neighbor's house. The man got into his car and drove away.
Officer Maurice Mitchell responded to the scene and spoke with S.S, She described her attacker as a black male in his late 20's to 30's, with a pitted or scarred face, approximately 6'1? in height, and weighing approximately 180 pounds. S.S. identified the car he was driving as a four-door, 2000 model black Dodge Charger with stock wheels and tinted windows. Later that day, S.S. provided a similar description of her attacker in a follow-up interview with law enforcement, adding that his face was clean shaven and that he had a shaved head. Crime scene investigators collected a zip tie that was still attached to S.S.'s wrist and swabbed it for DNA evidence. A mixture of DNA found on the zip tie revealed a possible match to Young.
Detective Ken Davis learned that Young had an address in Las Vegas and obtained a driver's license photograph of Young from Las Vegas law enforcement. Davis created a photographic array with pictures of six men, placing Young in the third position. Upon viewing the photo array, S.S. immediately and without hesitation pointed to Young's picture. Davis instructed S.S. to write a comment as to how she recognized the picture, and S.S. wrote: ‘ “I positively identify No. 3 as my attacker.” ‘ S.S. also circled Young's photograph. Further DNA testing revealed that Young could not be excluded as a contributor to the DNA mixture on the zip tie.
Young was subsequently charged with one count each of aggravated kidnapping, aggravated robbery, kidnapping, and attempted rape. Prior to trial, Young unsuccessfully moved to suppress the photo lineup as impermissibly suggestive, and he failed in his attempt to keep the State from presenting evidence of a car rental contract that showed he was driving a black Dodge Charger on the day of S.S.'s attack. At trial, S.S. identified Young as her attacker.
In his defense, Young presented testimony from two witnesses who saw Young in Wichita on September 5, 2008, and claimed that he was not driving a black Dodge Charger. One of the witnesses stated that Young was in Wichita helping him move from his house that was approximately 2 blocks away from S.S.'s house.
A jury found Young guilty as charged. The district court sentenced Young to a controlling prison term of 312 months.
On appeal, Young contends: (1) The district court should have suppressed the photo lineup used to identify him because it was impermissibly suggestive; (2) the district court erred in allowing the State to present evidence of a car rental contract; (3) there was insufficient evidence to support his convictions of aggravated kidnapping, aggravated robbery, and kidnapping; (4) the district court erroneously instructed the jury on eyewitness identification by including the degree of certainty factor; (5) the district court erred in failing to instruct the jury on the lesser included offenses of robbery, attempted aggravated kidnapping, and attempted criminal restraint; (6) the prosecutor committed misconduct during closing argument by commenting on matters outside of the evidence; and (7) cumulative trial errors deprived him of his constitutional right to a fair trial. We address each of these contentions in turn.
Young claims the district court erred in denying his motion to suppress S.S.'s eyewitness identification because the photographic array was impermissibly suggestive and led to an unreliable identification.
An appellate court reviews a denial of a motion to suppress eyewitness identification and the question of whether eyewitness identification was impermissibly suggestive as a mixed question of fact and law. The court applies a substantial competent evidence standard when reviewing the factual underpinnings of a district court's decision and applies a de novo standard to the ultimate legal conclusion in light of the factual findings. State v. Trammell, 278 Kan. 265, 270, 92 P.3d 1101 (2004).
Appellate courts apply a two-step analysis to determine whether eyewitness identification should be excluded. First, the court determines whether the procedure used to elicit the identification was impermissibly suggestive. A photographic array identification procedure is impermissibly suggestive if the officers conducting the identification proceeding give the witness information that draws attention to a specific individual before the witness makes his or her selection or the officers make suggestions about who the witness ought to select. Additionally, a photographic lineup is impermissibly suggestive if the photographs do not depict individuals similar to the description given by the witness, if there is a gross disparity between the defendant's photograph and the remaining photographs, or a distinctive indication of the defendant's photograph. If the court determines the lineup is impermissibly suggestive, the second step requires the court to analyze whether based on the totality of the circumstances the impermissibly suggestive procedure led to a substantial likelihood of misidentification that would deny due process. Trammell, 278 Kan. at 270–74, 92 P.3d 1101.
Young asserts the procedure Davis used to create the six-person photographic array was impermissibly suggestive because (1) Davis told S.S. that law enforcement had a potential suspect, (2) his picture is the brightest in the array, (3) the other photographs in the array depict individuals who appear to have facial hair, (4) three of the individuals appear to be thinner than him, and (5) three of the individuals appear to be younger than him. But there is nothing in the record to support Young's assertion that Davis engaged in suggestive behavior in creating the photo array or while showing it to S.S. At the suppression hearing, Davis testified that after Young was identified as a suspect in the case, he learned that Young had a recent address in Las Vegas and obtained Young's driver's license photograph from the Las Vegas Metro Police Department. Davis placed Young's photo in position No. 3 of the photo array. Davis selected the other five individuals for the photo array from a pool of Kansas driver's license photographs of black males who were similar in age to Young. Davis stated that he made an effort to find individuals...
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