Opinion
No. 106,858.
2013-03-8
STATE of Kansas, Appellee, v. Vincent L.GATES, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Christina M. Kerl, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Christina M. Kerl, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM:
Claiming several improper and suggestive identification procedures by the police and jury instruction and sentencing errors by the court, Vincent Gates asks us to overturn his aggravated robbery conviction. Because we find no reversible errors, we hold there is no reason to reverse this conviction. Accordingly, we affirm.
There is no dispute about the circumstances of the crime.
Taren Fry, the front desk clerk of a Comfort Inn in Park City, Kansas, was working on the evening of November 19, 2010. Sometime around 5:30 or 5:45 p.m., a black male, fairly small in stature, entered the lobby. Fry stood up to greet the man. Fry said he was not paying much attention at that point, as he believed the man was just a regular customer. However, the man handed Fry a note written on what appeared to be a piece of a McDonald's bag. The note indicated this was a robbery. The man then told Fry to give him the money.
Fry handed the note back to the man, realizing at that point that he needed to start “picking up details.” Fry observed that the man was wearing a dark hooded sweatshirt, a stocking cap, gloves, jeans, and shoes. Fry noticed the man's hand was “ashy or dry.”
Fry advised the man that the motel kept no cash, but the man said he did not believe Fry. Fry also told the man he was being taped on a video camera. The man then lifted up his sweatshirt and showed Fry a plastic bag that appeared to contain a gun. The man told Fry he did not need to pull the object out in order for Fry to know what it was. Fry, feeling his life was in danger, opened the cash register drawer and placed it on top of the desk. The man took the money from the drawer and then came around the front desk and began looking through other drawers. The man took some rolls of coins and left the motel. Fry estimated the man was in the motel for a total of approximately 3 minutes.
Detective Dwight Wilkes arrived at the Comfort Inn at around 6:30 p.m. Fry described the robber to Detective Wilkes as a skinny black male who weighed about 160 pounds.
A few days later, on November 23, 2010, Detective Wilkes showed Fry a photo array including six photographs. The photo array was a computer-generated one produced by Detective Wilkes. After viewing the array, Fry indicated that five of the photos were not photos of the man who robbed the hotel, but Fry was not 100 percent sure about the person in photo number 3. Fry noted the person featured in photo number 3 had a swollen face, yet the robber's face was not swollen.
With the help of the Wichita Police Department, Detective Wilkes obtained a second photo array in hopes of getting better pictures. The second photo array was shown to Fry on November 29, 2010. Fry almost immediately picked out photo number 2 as the person who robbed the motel. The person in photo number 2 was the same person featured in photo number 3 of the first photo array. This person was identified as the defendant Gates.
On November 30, 2010, police officers arrested Gates during a car stop. Officers discovered a McDonald's bag, a “see-through” bag, work gloves, a stocking cap, a brown paper bag, and a “black handle” in Gates' vehicle. A piece of the McDonald's bag was missing. Detective Wilkes collected these items because they fit the basic description of the items used during the robbery.
The State charged Gates with aggravated robbery in violation of K .S.A. 21–3427. Gates' trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Gates was later retried and convicted by a second jury.
After trial, but prior to his sentencing, Gates filed a motion in the district court entitled: “Motion: 60–1507 Ineffective counsel.” In the motion, Gates claimed defense counsel failed to present truthful and relevant evidence in his case and failed to contact and subpoena witnesses. The district court denied Gates' motion without appointing counsel or conducting a hearing on the motion.
In this appeal, Gates raises five issues:
1. His second prosecution violated his rights against double jeopardy.
2. The trial court should have suppressed the identification evidence.
3. The trial court improperly instructed the jury concerning identification.
4. The court improperly denied his posttrial motion raising the issue of incompetence of his defense counsel.
5. At sentencing, the court improperly increased his sentence based upon his criminal history score that was not proved to the jury beyond a reasonable doubt.
We will address the issues in that order.
Gates has failed to prove that his double jeopardy rights have been violated.
Gates claims that because there was no manifest necessity for the mistrial in his first trial, the district court violated his right against double jeopardy when it allowed him to be retried for the same crime. He argues his conviction must be reversed for this reason. Even though this claim was not argued to the district court, we will consider the question under the principle elucidated in State v. Walker, 283 Kan. 587, 609, 153 P.3d 1257 (2007), where our Supreme Court stated that a double jeopardy claim implicates a fundamental right to a fair trial. Thus, we will review the matter for the first time on appeal.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Section 10 of the Kansas Constitution Bill of Rights similarly provides: “No person shall be a witness against himself, or be twice put in jeopardy for the same offense.” The Double Jeopardy Clause protects individuals against a second prosecution after an acquittal for the same offense, a second prosecution after a conviction for the same offense, and multiple punishments for the same offense. State v. Gulledge, 257 Kan. 915, 920, 896 P.2d 378 (1995).
The question whether a conviction violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights is a question of law subject to unlimited review. Walker, 283 Kan. 587, Syl. ¶ 13. We turn now to the circumstances present in this case.
The facts concerning the mistrial in Gates' case are undisputed. The case was submitted to the jury at approximately 11 a.m. At 2 p.m., the jury sent the court a note asking what would happen if the jury was unable to reach a unanimous vote. After a discussion between the court, counsel, and Gates, the court advised the jury to discuss whether it believed further deliberations could assist in possibly reaching a verdict and then continue deliberations if possible. At 2:17 p.m., the jury sent the court a note indicating it was unable to reach a unanimous decision, noting jurors on both sides claimed they would not change their minds.
After hearing argument from both the State and defense counsel, the district court declared a mistrial. The court noted that the jury had only deliberated for a total of 2 hours and 15 minutes, but that it only took 4 hours to present the evidence and there were only four witnesses who testified in the case. Defense counsel objected to the mistrial, but she was unable to say how much longer she believed the jury should have been given to deliberate further.
To us, Gates argues there was no reason to declare a mistrial and cites United States v. Horn, 583 F.2d 1124 (10th Cir.1978), as support. We are not persuaded because the facts of this case differ from those reported in Horn.
The case in Horn was submitted to the jury at around 5:30 p.m. At around 8:57 p.m., the jury sent the court a note indicating it was deadlocked. The jury was sent home for a recess. At 9 a.m. the next morning, the court advised the jury that its previous deliberations were insufficient and gave the jury additional instructions. At around 10:40 a.m., the court brought the jury back into the courtroom and “ sua sponte declared a mistrial.” 583 F .2d at 1125. On appeal, the defendants argued a second trial was barred by the Double Jeopardy Clause because there was not manifest necessity for the mistrial. The 10th Circuit Court of Appeals agreed, holding manifest necessity did not exist under these facts. The court noted there was a complete lack of evidence that the jury was still in disagreement the morning the mistrial was declared, and the court made no inquiry regarding the potential for a verdict. 583 F.2d at 1129.
The district court's error in Horn was that it declared the mistrial sua sponte, without speaking with the jury about whether it was still in disagreement or whether a verdict could possibly be reached.
To the contrary, in Gates' case, the district court did not declare the mistrial sua sponte; instead, the jury informed the court a unanimous verdict could not be reached. This happened after the court told the jury to discuss whether further deliberations were possible. This is not a case where the court acted on its own, without consultation with the jury. We note that our Supreme Court in State v. Graham, 277 Kan. 121, 132–34, 83 P.3d 143 (2004), rejected a double jeopardy claim based on Horn under facts nearly identical to those present here.
Gates maintains that the facts here are more severe than Horn because the Horn jury deliberated for “twice as long” as the jury in his case. Gates says his jury deliberated for a “mere 17 minutes” after being advised to continue deliberations. The length of time the jury has deliberated is but one factor for the trial court to consider when making this decision. The length of the trial and the complexity of the issues presented to the jury are also factors that must be considered. See Horn, 583 F.2d at 1127.
Here, the district court noted it took just 4 hours to present all of the evidence in Gates' case and there were only four witnesses who testified. The district court reasonably surmised that 2 hours of deliberation was enough time for Gates' jury to determine it was deadlocked. The decision to declare a mistrial is a matter of discretion, and the decision will not be set aside on appeal unless an abuse of discretion in clearly shown. Graham, 277 Kan. at 132.
Gates has failed to show the trial court improperly decided there was manifest necessity for a mistrial. Thus, Gates cannot demonstrate his Fifth Amendment right against double jeopardy was violated when he was tried a second time.
The district court properly denied Gates' motion to suppress identification evidence.
At this point in his appeal, Gates contends the district court erred in denying his motion to suppress evidence of the photo identifications and subsequent in-court identification made by the motel clerk Fry. Gates claims the photo lineups shown to Fry were impermissibly suggestive and created a substantial likelihood of misidentification, thereby tainting Fry's in-court identification of Gates.
We first state our standard of review over Gates' claim. This court's review of an eyewitness identification is a due process determination that involves a mixed question of law and fact. We apply a substantial competent evidence standard when reviewing the factual underpinnings of a trial court's decision to admit or suppress an eyewitness identification. The ultimate legal decision drawn from those facts is reviewed using a de novo standard. State v. Trammell, 278 Kan. 265, 270, 92 P.3d 1101 (2004).
An appellate court utilizes a two-step procedure for analyzing whether an eyewitness identification should be excluded. Trammell, 278 Kan. at 270. First, the court must determine whether the procedure used for making the identification was impermissibly suggestive. If so, the court moves to the second step in the analysis and considers whether the impermissibly suggestive procedure led to a substantial likelihood of misidentification. Under the second step, the court examines the totality of the circumstances surrounding the identification, considering the following factors, as set forth in State v. Hunt, 275 Kan. 811, 815–18, 69 P.3d 571 (2003):
• the witness' opportunity to view the criminal at the time of the crime;
• the witness' degree of attention;
• the accuracy of the witness' prior description;
• the level of certainty demonstrated by the witness at the confrontation;
• the length of time between the crime and the confrontation;
• the witness' capacity to observe the event, including his or her mental and physical acuity;
• whether the witness' identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion; and
• the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. Trammell, 278 Kan. at 270–71.
Gates properly preserved an objection to the eyewitness evidence. Prior to Gates' trial, he moved to suppress Fry's identification for the same reasons he now offers on appeal. The district court denied the motion after hearing testimony and arguments by the parties.
How the district court ruled on this issue.
When it rendered its decision on this point, the court first observed that Fry described the robber to law enforcement officers as a black male who was smaller and skinnier than average, appeared to be in his 20's, and had no facial hair. The court determined the first photo array shown to Fry (hereafter referred to as Photo Array 1) was not impermissibly suggestive. In reaching this conclusion, the court considered whether the photos in the array depicted individuals who generally fit Fry's description of the robber or whether there was gross disparity between the robber's photo and the other photos in the array.
Although Photo Array 1 contained six photos, the court considered it to be a four-person lineup since (1) the court believed the person featured in position 4 was “not a person who could reasonably be considered lighter and skinnier than the average man,” and (2) the person featured in position 1 was the same person featured in position 5, After examining the remaining four photos, the court determined that the persons featured in positions 1, 2, 3, and 6 could all be considered lighter and skinnier than the average man and that all had some degree of facial hair. The court recognized that the person featured in position 3 ( i.e., Gates) appeared to have a swollen eye, but it found this did not rise to the level of causing the photo to become impermissibly suggestive.
The court next determined the second photo array shown to Fry (hereafter referred to as Photo Array 2) was also not impermissibly suggestive. The court found that none of the photos in this array depicted an individual who was more distinctive than another and that none of the photos depicted persons who did not generally fit the description of the suspect. The court noted that the photo of Gates used in Photo Array 2 was not the same photo used in Photo Array 1, and the two photos were not placed in the same position on the arrays. The court also observed that Fry did not recognize Gates' photo in Photo Array 2 as being the same person that was included in Photo Array 1.
Finally, the court considered how each of the Hunt factors applied to Gates' case and made factual conclusions, ultimately determining there was not a substantial likelihood of misidentification by Fry in these circumstances.
We report our application of the two-step procedure.
As our first step we examine each photo array shown to Fry and decide whether this procedure was impermissibly suggestive.
Photo Array 1
Gates has three main complaints about Photo Array 1. Gates says (1) Fry described the suspect as “ ‘tiny’ “ and “skinny,” yet the men depicted in Photo Array 1 do not meet this description; (2) photos 1 and 5 are of the same man; and (3) the photo of Gates stands out, as he has clear injuries to his face. We are not convinced.
First, contrary to Gates' contention, this court cannot conclude the men featured in the array do not fit Fry's description of the robber. At the suppression hearing, Fry testified he told officers the robber was “smaller than the average man.” It is difficult to tell whether the men featured in Photo Array 1 meet this description because the photos are only “head shots” that do not display the men's bodies. By looking at the men's faces alone, however, it can possibly be concluded that four of the men featured in the array may be small in size. Only the man featured in position 4 has a larger, fuller face.
In reviewing for substantial evidence, this court does not reweigh the evidence or pass on the credibility of witnesses. See State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005). The record supports the district court's finding that the men featured in photos 1, 2, 3, and 6 could all meet Fry's description of the robber's size.
Second, it is really of no consequence that two of the photos in the array featured the same man. While this fact would have been extremely relevant had the duplicate been a photo of Gates, a duplicate of another man is insignificant, especially since the man depicted in the duplicate generally meets Fry's description of the robber. Without the duplicate, Fry was still left with four photos to choose from when identifying the suspect. In State v. Love, 267 Kan. 600, 604–06, 986 P.2d 358 (1999), our Supreme Court upheld a four-person lineup and cited State v. Mack, 255 Kan. 21, 28, 871 P.2d 1265 (1994), where the court upheld a three-person lineup.
Finally, the photo of Gates does not stand out due to the apparent swelling around his right eye. In fact, it is impossible to tell what the photo reflected: whether there was swelling to the eye, whether the skin around the eye was naturally puffier, or whether the person was merely tired. More importantly, where the robbery in this case involved no physical violence or injury, there is no reason to suspect Fry would have been drawn to a photo depicting an injury. In fact, the apparent swelling of the eye is what caused Fry to think the person featured in photo 3 was not the robber. Fry advised law enforcement that photo 3 “could be” the robber, but he noted the robber was not “beat up” and the person depicted in photo 3 was “beat up.”
Four of the five men featured in Photo Array 1 are head shots of black males that appear to be similar in size. All men have facial hair and similar hair lines. Substantial competent evidence supports the district court's factual findings regarding the photos and its legal conclusion that Photo Array 1 was not impermissibly suggestive.
Photo Array 2
Gates complains that his photo in Photo Array 2 is the only one included in this array that was also included in Photo Array 1. Gates admits the other photos contained in Photo Array 2 were consistent with Fry's description of the suspect. Again, we are not convinced with this argument.
In Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United States Supreme Court indeed noted the danger in displaying pictures of several persons, among which the photo of a single individual recurs or is in some way emphasized. However, the Court went on to say that each case must be considered on its own facts, and convictions based on eyewitness identification will be set aside only if the photographic identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384. Indeed, our Supreme Court in Mack confirmed that the fact a particular suspect's photograph is shown to a witness more than once does not necessarily require a finding that a later identification must be excluded. 255 Kan. at 27.
Considering all of the circumstances here, the fact that both photo arrays contained a photo of Gates does not render Photo Array 2 impermissibly suggestive.
The photo of Gates in Photo Array 1 differs from his photo in Photo Array 2. The photo contained in Photo Array 1 is displayed in black and white, while the photo in Photo Array 2 is in color. Also, Gates appears to have a swollen eye in Photo Array 1, while no such injury appears in Photo Array 2. Gates' photo was placed in position 3 in Photo Array 1, but it was placed in position 2 in Photo Array 2. Significantly, Fry confirmed that when he looked at Gates' photo in Photo Array 2, he did not recognize it as being one that was also included in Photo Array 1.
Next, as Gates concedes, the suspects displayed in Photo Array 2 all meet the general description of the robber, as each can be described as a black male, possibly small in size.
Finally, Fry testified that when he saw Gates' photograph in Photo Array 2, it took him “no longer than two seconds to circle the photo.” Fry said he knew this was the robber “right off the bat” based on the eyes, nose, and mouth.
Substantial competent evidence supports the district court's factual findings that none of the photos in Photo Array 2 depicted an individual who was more distinctive than another and that the two photos of Gates were different and were placed in different positions in the arrays. Photo Array 2 was not impermissibly suggestive just because Gates was the only person included in both photo arrays.
Turning to the second step of the analysis, we note several facts persuade us that there was no substantial likelihood Fry would make a misidentification under these circumstances. First, Fry had ample opportunity to view Gates at the time of the robbery. Fry testified Gates' face was never covered during the incident and that he focused on Gates' face during 90 percent of the time Gates was in his presence. Fry indicated that during the 3 minutes Gates was in the motel, he had a “good look” at Fry's face for at least 2 minutes. Fry estimated his face was about 2 feet from Gates' face during the encounter. Although Gates was wearing a stocking cap, Fry said the cap reached just above Gates' eyebrows and there was nothing covering the area between his eyebrows and the bottom of his face.
We note that the district court found Fry was in a well-lit area, Fry had 3–4 minutes of interaction with Gates, Gates got within 2–3 feet of Fry, and there was dialogue between Fry and Gates. These factual findings are supported by the record, and Gates does not challenge them on appeal. These findings, in addition to those facts mentioned above, weigh in favor of concluding there was not a substantial likelihood of misidentification in this case.
Second, Fry paid a great deal of attention to Gates during the robbery. Although Fry said he was not paying much attention when Gates first came through the entrance to the hotel, Fry said he realized he needed to start “picking up details” once Gates handed him the note indicating it was a robbery. Although Gates correctly points out instances where Fry was not looking at his face, such as when Fry was reading the note and finding the key to the cash drawer, those instances are greatly outweighed by those times when Fry was looking directly at Gates' face.
The district court found that Fry was focused on Gates, specifically his face, and that there were no other persons present during the robbery that would distract Fry. These factual findings, which are supported by the record, also weigh in favor of concluding there was not a substantial likelihood of misidentification in this case.
Third, Fry's description of Gates to law enforcement matched the photos of Gates contained in the photo arrays. Although Gates does not challenge the application of this factor on appeal, we note this factor also weighs in favor of concluding there was not a substantial likelihood of misidentification in this case. As the district court found, Fry described the robber as a black male, in his 20's, who was skinnier than the average man and was without facial hair. The photo of Gates contained in Photo Array 2 meets this description.
Fourth, Fry demonstrated a great level of certainty regarding his identification of Gates. At the suppression hearing. Fry testified that when he saw Gates' photograph in Photo Array 2, it took him “no longer than two seconds to circle the photo.” Fry said he knew this was the robber “right off the bat” based on the eyes, nose, and mouth. Gates does not challenge the application of this factor on appeal. But under current law, a witness' degree of certainty should not be considered when evaluating the credibility of an eyewitness identification. Thus, we give this factor little, if any, weight.
The fifth factor to consider—the length of time between the crime and the identification—actually supports Gates' claim, as Fry did not view Photo Array 2 and identify Gates until 10 days after the crime. However, because Gates does not mention the application of this factor on appeal, he has abandoned any argument on this point. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008); Brubaker v. Branine, 237 Kan. 488,490, 701 P.2d 929 (1985).
Sixth, there is no evidence suggesting Fry's capacity to observe the robbery was affected in any way. The district court observed that Fry wears no contacts or glasses and he was not under the influence. Gates does not challenge these findings on appeal but argues Fry testified he was afraid once the robber displayed his gun and Fry's vision was compromised because the robber was wearing a stocking cap with a hood pulled over top. These arguments are not persuasive. First, although Fry testified he felt his life was in danger once he saw Gates' gun, Gates also testified he did not feel overcome by emotions or like he may faint and he was still aware of what was happening around him. Fry provided a detailed account of what occurred during the robbery and described the facts at length. Despite his admission that he was afraid, there is no evidence that would suggest Fry's capacity to observe the robbery was affected. Second, as discussed above, there is no evidence Fry's vision was compromised by Gates' clothing.
Seventh, Fry's identification of Gates remained consistent and was not the product of suggestion. As discussed above, the photo arrays were not impermissibly suggestive. And as Gates concedes in his brief, “Fry has never not identified” Gates as the robber.
Finally, aside from the obvious fact that this was a robbery, there was nothing particularly remarkable about the nature of this robbery that would have prevented Fry from being able to perceive, remember, and relate it correctly. Although Gates correctly points out that Fry believed he was being held at gun point, any conclusion that Fry was unable to recall the details of the robbery correctly would be refuted by the record—which reflects Fry provided a thorough, detailed account of what occurred during the robbery.
Based on our analysis of the Hunt/Trammell factors, we conclude there was no substantial likelihood of misidentification in this case. Fry had ample opportunity to view his assailant's face during the 3–4 minute encounter, which took place in a well-lit area where no other persons were present. Fry specifically stated he focused on the robber's face and paid attention to details. Fry provided law enforcement with an accurate description of Gates and was able to identify Gates as his robber very quickly once he viewed Photo Array 2.
Gates has failed to show the district court erred in denying his motion to suppress the eyewitness identification in this case. The procedures used for making the identification—the two photo arrays—were not impermissibly suggestive. Moreover, there was not a substantial likelihood of misidentification by Fry under these facts.
Even though the court used an outdated jury instruction, it is not a reversible error.
Gates claims the trial court erred when it instructed the jury it could consider Fry's level of certainty when identifying Gates as the robber. Gates says such evidence is irrelevant and should not be considered.
Prior to trial, Gates moved to suppress Fry's testimony about his certainty in identifying Gates. Gates argued the jury should not be instructed that an eyewitness' level of certainty may be considered when evaluating an identification. Gates reiterated this objection during the jury instructions conference. The district court denied Gates' suppression motion and request to omit the offending jury instruction.
Because Gates objected to the jury instruction at issue at trial, on appeal, this court examines the instruction to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination, the court is required to consider the instructions as a whole and not isolate any one instruction. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The jury instruction at issue here is Instruction 8. At trial, Gates' jury was given a cautionary eyewitness instruction advising the jury it could consider certain factors when weighing the credibility of any eyewitness identification testimony, including: “[t]he level of certainty demonstrated by the witness at the time the witness later viewed [the] defendant.”
Recent Kansas cases supports Gates' argument on this point. Since the filing of the briefs in this case, our Supreme Court has indeed held it is error for the district court to instruct the jury that it may consider the “degree of certainty factor” when evaluating the reliability of an eyewitness identification. See State v. Anderson, 294 Kan. 450, 458, 276 P.3d 200 (2012); State v. Mitchell, 294 Kan. 469, 481, 275 P.3d 905 (2012). Nevertheless, the court has also said the giving of such an instruction is not grounds for automatic reversal. Instead, when the jury is erroneously instructed on the degree of certainty factor, the court must apply a two-part test to determine whether the error is grounds for reversal.
Initially, the reviewing court determines whether the use of the instruction reasonably misled the jury. Mitchell, 294 Kan. at 481. To make such a determination, the court initially considers whether “an expression of certainty” was made by the eyewitness to the jury. 294 Kan. at 481. If the court finds that such an expression was made, the court also considers the nature and extent of the certainty expressed. If the court finds there was no degree of certainty conveyed by the eyewitness, the court must conclude the jury could not have been misled by the instruction. 294 Kan. at 481–82.
Next, if we find an expression of certainty was made to the jury and it is possible the degree of certainty expressed could have reasonably misled the jury, the reviewing court considers (1) whether the eyewitness identification was a critical aspect of the State's case, and (2) whether there was any question about the reliability of the identification. 294 Kan. at 482. In this final stage of the analysis, our Supreme Court has discussed factors such as whether the eyewitness knew the accused prior to the identification, thereby lessening the likelihood of a misidentification; whether other procedural safeguards mitigated any deficiency in the erroneous instruction, such as whether defense counsel adequately challenged the credibility of the eyewitness identification in opening and closing argument and on cross-examination; and whether there was other substantial incriminating evidence implicating the accused. See Anderson, 294 Kan. at 460–61;Mitchell, 294 Kan. at 482–83;State v. Marshall, 294 Kan. 850, 869–70, 281 P.3d 1112 (2012).
We offer our analysis of this point.
We must first consider whether “any expression of certainty” was made to the jury by Fry and the nature and extent of that certainty. See Mitchell, 294 Kan. at 481.
At trial, Fry told the jury that when he looked at Photo Array 2, he knew “within two seconds” that “it was him.” To determine whether this evidence constitutes an expression of certainty to the jury, we look to recent caselaw for guidance.
In Mitchell, the court held there was “no question” that certainty evidence was placed before the jury where there was evidence the eyewitness identified Mitchell in a photo lineup and stated he was “100 percent certain” Mitchell was the robber. 294 Kan. at 482. Conversely, the court in Anderson said it was not certainty evidence where the eyewitness pointed to the accused and said, “ ‘that's the MF that did it right there.’ “ 294 Kan. at 459. The court said Johnson did not express any degree of certainty “beyond the emphasis of the expletive.” 294 Kan. at 459. Finally, the court in Marshall determined certainty evidence was placed before the jury where there was evidence the eyewitness was asked whether he was “certain” the suspect was the person he saw and the eyewitness responded “yes.” 294 Kan. at 868.
Here, Fry's statement regarding his identification of Gates falls somewhere between the evidence presented in Mitchell and the evidence presented in Anderson and Marshall. While Fry did not provide a specific percentage as to the level of his certainty, he did use the words “knew” and “it was him.” Fry's choice of words suggested to the jury that he was certain, in a sense, that Gates was the robber, even though Fry did not use the word “certain” and did not express a degree of certainty. We are persuaded that it is possible that the degree of certainty expressed here could have reasonably misled the jury, we next consider whether the eyewitness identification by Fry was a critical aspect of the State's case and whether there was any question about the reliability of the identification. See Mitchell, 294 Kan. at 482.
We are convinced the eyewitness identification was a critical aspect of the State's case against Gates. Although the State presented circumstantial evidence to support its case (for example, evidence of the items found in Gates' vehicle after the robbery), there was no DNA evidence linking Gates to the crime and no evidence directly linking Gates to the scene of the robbery. Fry's testimony was obviously critical to the State's case.
Furthermore, there was indeed some question as to the reliability of Fry's identification. First, unlike the eyewitness in Mitchell, there is no evidence Fry knew Gates prior to the robbery. Second, Fry was unable to positively identify Gates as the robber in Photo Array 1, which was shown to him only days after the crime. Fry did not identify Gates until he saw Photo Array 2, which was shown to him 10 days after the robbery, making this identification seemingly less reliable. Even at trial, Fry admitted that on the day of trial, he was still unsure whether the person in Photo Array 1 ( i.e., the photo of Gates) was the robber.
Despite these problems with the identification process, there were other procedural protections in place at Gates' trial that mitigated any deficiency in the eyewitness instruction. Thus, we do not conclude the inclusion of the “degree of certainty” instruction resulted in reversible error in these circumstances. We elaborate.
In opening argument at trial, defense counsel emphasized that the jury would hear Fry's description of the robber, see the photo lineup presented to Fry, and “see how” Fry was “influenced.” During trial, defense counsel thoroughly cross-examined Fry regarding his initial description of the robber and his later identification of Gates. Defense counsel got Fry to admit he was still unable, on the day of trial, to identify Gates as the robber in Photo Array 1. Finally, defense counsel highlighted the problems with Fry's identification in closing argument. Like in Marshall, where the court concluded there was no real possibility the jury would have rendered a different verdict had the court not included the degree of certainty factor in the jury instructions, see 294 Kan. at 869–70, defense counsel in this case mitigated any harm that may have been caused by the instruction with a rigorous cross-examination that highlighted the problems with Fry's identification.
Moreover, like in Marshall and Anderson, there was also other evidence implicating Gates. See 294 Kan. at 870;294 Kan. at 460. After the robbery, several incriminating items were found in Gates' vehicle. In particular, officers discovered a McDonald's bag (with a piece missing), a “see-through” bag, work gloves, a stocking cap, a brown paper bag, and a black handle of some sort. At trial, the State attempted to tie each of these items to the robbery. On appeal, Gates attempts to minimize the significance of each item by pointing out inconsistencies in the evidence. As noted previously, it is not a function of this court to weigh the evidence on appeal. See Combs, 280 Kan. at 50. Here, we cannot say that Fry's eyewitness testimony was the only evidence that supported the State's case against Gates.
Clearly, the jury was exposed to the facts and circumstances both in favor and against the accuracy of Fry's identification of Gates. The inclusion of the certainty factor in the eyewitness instruction did not constitute reversible error.
The district court's ruling on the posttrial motion is not reversible.
For his next contention, Gates states the district court erred in summarily denying his posttrial motion alleging ineffective assistance of counsel. Gates says the district court should have construed the motion (which he labeled as a K.S.A. 60–1507 motion) as a motion for a new trial, held a hearing, and appointed new counsel to argue the motion, as the court should reasonably have known there was a conflict between Gates and defense counsel.
After he was convicted but before he was sentenced, Gates filed a motion in the district court titled “Motion: 60–1507 Ineffective counsel.” In his motion, Gates said defense counsel was ineffective because she failed to present truthful and relevant evidence. Specifically, Gates alleged defense counsel failed to contact and subpoena alibi witnesses. Gates generally noted that attorney-client conflicts arise from the failure to present truthful and relevant evidence.
In due course, the court denied the motion without appointing counsel or holding an evidentiary hearing on the motion. The court gave three separate reasons for the denial. First, the court reasoned that if Gates' motion was procedurally characterized as a K .S.A. 60–1507 motion, it was premature, as relief under K.S.A. 60–1507 can only be sought when a person is under sentence of a court. Next, the court reasoned that if Gates' motion was substantively characterized as a K.S.A. 60–1507 motion, the motion failed because Gates did not provide a factual background or the names of witnesses or other sources of evidence that would demonstrate entitlement to relief. Finally, the court reasoned that if Gates' motion was characterized as a posttrial motion ( i.e., a motion for a new trial), the motion would be denied, again, due to Gates' failure to provide a factual/evidentiary background to support his ineffective assistance of counsel claim.
Then, in this appeal, Gates does not contest that he had not yet been sentenced at the time he filed his posttrial motion and that a K.S.A. 60–1507 motion is only available to one who is under sentence of the court. Also, Gates concedes he did not use “the appropriate K.S.A. 60–1507 form, as he did not know how he should phrase his motion.” Nevertheless, Gates says the district court should have liberally construed his pro se motion as a motion for a new trial and (1) held a hearing on the motion, as required by K.S.A. 22–3501(2), and (2) appointed new counsel to argue the motion. Notably, Gates does not argue his motion would have succeeded on the merits, but he merely objects to the procedure below. We discuss each of his arguments in turn. The Failure to be “Heard ”
Gates claims that under K.S.A. 22–3501(2), the district court was required to “hear” and make a determination on his motion for a new trial. Gates says that in his case, the district court refused to hear his motion, but allowed defense counsel to argue her motion for a new trial—disallowing him the same opportunity.
Our statute, K.S.A. 22–3501(1), provides that on motion of a defendant, the court may grant a new trial if required in the interests of justice. K.S.A. 22–3501(2) states that a motion for a new trial “shall be heard and determined by the court within 45 days from the date it is made.” The statute does not provide that an evidentiary hearing is required once a motion is made, but it only states the defendant shall be “heard” on his or her motion.
In State v. Moncla, 269 Kan. 61,4 P.3d 618 (2000), the district court held a motion hearing on Moncla's motion for a new trial but did not hold an evidentiary hearing. On appeal, our Supreme Court confirmed there is no automatic right to a full evidentiary hearing on such a motion, noting motions for new trials may be meritless and not entitled to evidentiary hearings. 269 Kan. at 64–65. Nevertheless, the Moncla court reversed the denial of Moncla's motion and remanded for further proceedings because the lower court failed to make findings of fact and conclusions of law on Moncla's claim, thus precluding appellate review. 269 Kan. at 65.
In this case, the district court considered Gates' motion at a hearing at which the court discussed Gates' “posttrial conviction motion” and sentenced Gates. The court thereafter ruled on Gates' motion and made findings of fact and conclusions of law. The court specifically ruled it must deny Gates' motion where Gates provided no factual background or sources of evidence demonstrating counsel was ineffective, noting Gates offered no names of witnesses that would have testified on his behalf.
Here, there is no question that Gates was “heard” on his motion. At the hearing on Gates' motion and sentencing, the court allowed Gates to speak freely about his case. Gates told the court his trial was “unfair” because of the jury instructions. Gates said he told defense counsel about character witnesses and alibi witnesses who could testify on his behalf, but he complained that these people were not subpoenaed. Gates did not specifically identify these people.
The district court's observations are correct. Gates claimed defense counsel was ineffective for failing to present truthful and relevant evidence and failing to contact and subpoena alibi witnesses, but Gates failed, when given the opportunity, to identify what evidence should have been admitted or identify the witnesses that should have been contacted. Although the district court did not hold an actual evidentiary hearing on Gates' motion, the court had no reason to do so. In both Gates' motion and at the hearing on his motion and sentencing, Gates failed to articulate specific facts that would support the need for an evidentiary hearing. Where Gates failed to present facts to support his claim of ineffective assistance of counsel, the district court did not abuse its discretion in denying Gates' motion without a hearing. See State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138(1994).
Even in this appeal, Gates fails to say what witnesses should have been contacted and subpoenaed. Gates has had ample opportunity to be heard on his motion for a new trial. The district court did not err in failing to hold a separate hearing on the motion.
The Failure to Appoint New Counsel
Gates also complains the district court should have appointed new counsel to argue his motion, as the court should reasonably have known there was a conflict between Gates and defense counsel. For support, Gates cites State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007), where the court said that if a trial judge becomes aware of a possible conflict of interest between an attorney and a client, the judge's failure to inquire about the conflict may require reversal.
The problem with Gates' argument is that he completely ignores the rest of the Carter court's holding. After stating the above, the Carter court went on to say that if the district court fails to inquire into a potential conflict, the defendant is entitled to reversal “if he or she can establish that the conflict significantly affected his or her counsel's performance, thereby rendering the verdict unreliable.” 284 Kan. at 321.
When panels of this court have confronted allegations of a conflict of interest, they have acknowledged the principle that a trial judge must inquire about the possibility of an attorney/client conflict, but have cited Carter when holding a defendant must establish that the conflict adversely affected counsel's performance in order to require reversal. See State v. Stovall, No. 100,704, 2010 WL 1379512, at *5 (Kan.App.2010) (unpublished opinion), rev. granted 291 Kan. 917 (2011); State v. Holloway, No. 100,459, 2009 WL 2595935, at *4 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1099 (2010).
Here, Gates has failed to show the alleged conflict of interest prejudiced him. Gates failed in his motion and at his hearing to present facts to support his claim of ineffective assistance of counsel—as he failed to identify what evidence should have been admitted and failed to say what witnesses should have been contacted. Moreover, Gates fails to offer such evidence on appeal. For this reason, we cannot conclude the district court abused its discretion in denying Gates' motion without appointing new counsel.
Gates has not demonstrated the district court abused its discretion in denying his posttrial motion. Gates was heard on his motion but failed to offer evidence that would support the granting of an evidentiary hearing and failed to demonstrate any facts that would support the basis for his motion—that defense counsel was ineffective.
We reiterate the Ivory ruling.
In his final claim, Gates argues the district court erred in sentencing him to an increased sentence based upon his criminal history score, where his prior convictions were not placed before the jury and proven beyond a reasonable doubt. Gates acknowledges his claim has already been decided in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002).
This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to reaffirm its precedent in this area. See State v. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). The district court did not violate Gates' constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Affirmed.