Webb v. Commonwealth

• Decision Date: 23 March 2017
• Docket Number: 2015-SC-000198-MR
• Parties: DEVONTE LAVAL WEBB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: United States State Supreme Court — District of Kentucky

DEVONTE LAVAL WEBB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2015-SC-000198-MR

Supreme Court of Kentucky

MARCH 23, 2017

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE PAMELA GOODWINE, JUDGE

NO. 14-CR-00354-002

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant, Devonte Laval Webb, was tried jointly with co-defendant Ethan King. The two were each charged with five counts of first-degree robbery, and Appellant was also charged with being a second-degree persistent felony offender (PFO). A Fayette Circuit Court jury found Appellant guilty on all counts and recommended fifteen-year sentences for each of the five first-degree robbery counts, enhanced to twenty-seven years by the PFO conviction. The jury recommended all sentences run concurrently. The trial court accepted the jury's recommendation and ran the sentences in the present case concurrently; she also ran twenty years of Appellant's present sentence concurrently with a sentence in a prior, unrelated murder conviction and the remaining seven years consecutive to that sentence. Appellant now appeals as a matter of right, Ky. Const. § 110(2)(b), and raises the following issues: (1) the trial court erred in failing to find a photographic lineup unduly suggestive; (2) the trial courterred in overruling two motions for mistrial; (3) officer's testimony concerning out-of-court identifications constituted hearsay and bolstered other witnesses' testimony, amounting to palpable error; (4) the. trial court erred in denying Appellant's motions for a continuance and to sever his case from King's; and (5) the trial court erred in ordering Appellant pay $500 in restitution to one of the robbery victims. We disagree and affirm Appellant's convictions and their corresponding sentences.

I. BACKGROUND

In October 2012, three individuals robbed six University of Kentucky students at gunpoint in a home shared by four of the six students. The victims included Kyle Stamp, his three roommates, and two of their friends. On the day in question, Stamp had arranged to sell Ethan King four ounces of marijuana and told the other five victims he was expecting King to come to the residence. In spite of the fact Stamp had instructed King to come alone, when King arrived, he was accompanied by two other men. Stamp let the three men into his home to complete the drug transaction. They proceeded to the kitchen, where Stamp had the marijuana and scales out on the kitchen table, ready for the drug deal.

At some point, Stamp left the kitchen to get change from his bedroom. Upon his return, Stamp noticed the three men had removed everything from the table. At this point, one of the men who accompanied King pulled a gun and pointed it at Stamp. The man with the gun told Stamp not to move or make any loud noises—that they were going to rob him. Eventually, the three robbed Stamp's roommates and friends who sat in the living room watching afootball game. The robbers also removed some items (including a flat screen television, MacBook laptop computer, and iHome device) from the bedroom of one of Stamp's roommates. After the completion of the robbery, the three men fled the scene with the marijuana and stolen items.

One of the victims had hidden his cell phone during the robbery and used it to call 911 after the robbers left the house. One of the two victims who did not live in the home left before police arrived, but the other five provided statements to police. The primary officer, Officer Wallace, realized Stamp had more information than the other four victims, and interviewed him separately. Stamp gave Officer Wallace the phone number he had for Ethan King, whom he knew only as "Little E." Wallace put together a photographic lineup including a picture of King and took it to the scene. Three of the roommates identified King from the lineup without hesitation or confusion, and the fourth said that he was "positive, but not 1.00% sure." The other two victims were not at the home when police presented this lineup.

Approximately three hours after the robbery, police took King into custody at his parents' home. Wallace interviewed King at the jail, and King stated he was too high on narcotics to remember everything he had done. King said he recalled picking up the other two robbers but indicated that he did not know them. He denied recalling any events after that. When confronted with the victims' stories, King said that, in spite of his lack of memory, he must have committed the crime.

Police did not have a good enough description of either of the other two robbers to develop a suspect list at that time. In fact, there were no further leads in the case until a year later when King's attorney gave police Appellant'sname. By this time, Officer Wilson had been assigned to the case and he compiled a photographic lineup. Three of the four prior roommates still lived together, and Officer Wilson individually showed these three the lineup. All three roommates identified Appellant.

As noted above, Appellant was charged with five counts of first-degree robbery and with being a persistent felony offender. A jury convicted him of those crimes and he was sentenced to twenty-seven years' imprisonment. He now appeals to this Court, raising six allegations of error, which we will address in turn. We will develop further facts below as necessary for our analysis.

II. ANALYSIS

A. Photographic Lineup

Appellant filed a motion at trial to suppress the three out-of-court identifications made pursuant to a photographic lineup. The trial court overruled the suppression motion after conducting an evidentiary hearing at which Officer Wilson was the sole witness.

Appellant now appeals the trial court's denial of his suppression motion, arguing the trial court erred in failing to suppress the three witnesses' identifications in violation of his due process rights under both the state and federal constitutions. The standards under which we analyze this issue are well settled. "Only when evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice,' Dowling v. United States, 493 U.S. 342, 352 . . . (1990), have we imposed a constraint tied to the Due Process Clause." Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012). "A convictionbased on identification testimony following pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so 'impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986), quoting Simmons v. United States, 390 U.S. 377, 384 (1968).

As this Gourt has explained,

[t]he determination of whether the in-trial use of identification testimony violates due process involves a two-step process. First, the court examines the pre-identification encounters to determine whether they were unduly suggestive. If so, "the identification may still be admissible if 'under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive.'" Stewart v. Duckworth, 93 F.3d 262, 265 (7th Cir. 1996), quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999).

In the case at bar, the trial court found that Appellant failed to demonstrate the photographic array was unduly suggestive and, therefore, did not move on to the second step of the inquiry. In making the determination as to whether a photographic array was unduly suggestive, "[c]ourts use a number of factors . . . including the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves." United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994).

"The 'clearly erroneous' standard applies to a trial judge's findings of fact on a motion to suppress evidence." King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). A finding of fact is clearly erroneous only if it is manifestly against the great weight of the evidence. Frances v. Frances, 266 S.W.3d 754 (Ky. 2008). We review a trialcourt's decision on the admissibility of identification evidence for an abuse of discretion. King, 142 S.W.3d at 649; see Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000) (holding "abuse of discretion is the proper standard of review of a trial court's evidentiary rulings"). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Appellant asks this Court to hold that the trial court abused its discretion in finding that he failed to carry his burden of proving the photographic array was unduly suggestive. He asks that we hold that the trial court should have reached the second Neil v. Biggers step (totality of the circumstances). After examining the photographic array Officer Wilson presented to the robbery victims and the process he used in compiling and presenting it, we disagree with Appellant and hold...