Opinion
No. 106,370.
2012-08-31
STATE of Kansas, Appellee, v. D'Laney NIXON, Appellant.
Appeal from Sedgwick District Court, John J. Kisner, Jr., Judge. Lydia Krebs, 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, John J. Kisner, Jr., Judge.
Lydia Krebs, 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 ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
D'Laney Nixon appeals his convictions of burglary and theft and his sentences. Unfortunately for Nixon, his residential burglary and theft were witnessed by Brandon Russell, a neighbor who lived two houses from that of the victim. Russell testified that he watched two men, whom he later identified as Nixon and Donald Kennedy, break into the victim's home at 2 p.m. and leave with several items. Russell said he got a good look at the men.
Russell saw Nixon and Kennedy arrive in a white SUV that pulled into the victim's driveway. Nixon got out of the SUV and walked to the back of the victim's house. Kennedy remained in the passenger0020seat of the SUV, looking around suspiciously. Russell then saw Nixon coming out of the front of the victim's house.
Russell saw Nixon and Kennedy consult with one another and then go into the front of the house together. When they reemerged, they were carrying a television and a wicker basket containing various items, which they put into the backseat of the SUV and then drove off. Russell noted the license plate number on the SUV and called the police.
That same day, Russell was provided with a photo array from which he identified Nixon as one of the two men. Russell wrote on Nixon's photo: “This is the guy I believe to be the guy I saw at the house.” The photo array was admitted at trial without objection.
Russell testified at trial that there was nothing to block his view through his window and that he was able to clearly see Nixon's face. Russell observed Nixon and Kennedy over the course of 4 minutes. While Nixon's counsel pointed out that in the photo array Nixon's photo had a different color background than the background in the other photos, Russell testified that the first time he noticed this difference was when the defense pointed it out. Russell said the background was not a factor in his identification, and he had no doubt that Nixon was the man he witnessed at the victim's home that day.
The victim testified that on the morning of the burglary, she had left a kitchen window in the back of her house open about 6 inches, and when she returned home after the burglary the window was open all the way and the screen had been cut out.
The police checked the ownership of the white SUV whose license number Russell had taken down. The vehicle belonged to Sarah Jamieson, who testified that on the morning of the burglary Nixon borrowed the car from her and promised to return later that day. He failed to return it as promised. After she retrieved the vehicle, Jamieson found DVDs in the SUV that the victim identified as DVDs taken from her home in the burglary.
Nixon presented alibi testimony from his mother and girlfriend to the effect that he was painting his mother's house at the time of the burglary. He claimed he loaned Jamison's white SUV to Kennedy, who had it at the time of the burglary.
The jury found Nixon guilty of burglary and theft. Nixon appealed following the denial of his motion for a new trial and his sentencing. Eyewitness Identification
Nixon claims the district court erred in failing to instruct the jury on eyewitness identification. He did not request such an instruction. Thus, we apply the clearly erroneous standard. K.S.A. 22–3414(3); State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012) (citing State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 [2009] ). The failure to instruct on the issue was clearly erroneous only if there was a real possibility the jury would have rendered a different verdict if the instruction had been given.
The Pattern Instructions for Kansas, Criminal 3d 52.20, Notes on Use, citing State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987), recommends an eyewitness identification instruction “whenever the trial judge believes there is any serious question about the reliability of eyewitness identification testimony.”
PIK Crim.3d 52.20 lists seven factors the jury may consider in weighing the reliability of eyewitness identification testimony. Our Supreme Court recently approved the use of this instruction with the deletion of the factor relating to the “degree of certainty demonstrated by the witness at the time of any identification of the accused.” See State v. Mitchell, 294 Kan. 469, 479–81, 275 P.3d 905 (2012); State v. Anderson, 294 Kan. 450, 457–58, 276 P.3d 200 (2012). But the instruction should not be given if the evidence does not cause the district court to question the reliability of the eyewitness testimony. State v. Harris, 266 Kan. 270, 278, 970 P.2d 519 (1998).
Nixon relies on State v. Simpson, 29 Kan.App.2d 862, 32 P.3d 1226 (2001). In Simpson, the court found clear error in failing to give the PIK Crim.3d 52.20 instruction when the eyewitness saw the defendant for only 60 seconds in a dimly lit kitchen while the defendant's facial features were obstructed by a cell phone and a hat. The eyewitness did not indicate that the person she observed had gold teeth. The defendant in Simpson had distinct gold teeth. 29 Kan.App.2d at 880.
Unlike in Simpson, Russell saw Nixon in broad daylight with no obstructions. Russell had a clear view of Nixon's face. Russell testified he saw Nixon at several angles and at different points as Nixon entered and exited the victim's home. Russell paid particular attention because he knew a crime was in progress and he wanted to be able to provide helpful information to the police. Russell picked Nixon out of a photo array the same day as the burglary while the image of the burglars was fresh in his mind.
Russell's identification of Nixon was not the only evidence placing Nixon at the crime scene. Nixon admitted he borrowed the SUV identified by Russell. He borrowed it before the burglary, and it was not returned to Jamison, its owner, until sometime after the burglary. When the SUV was returned to her, Jamieson found DVDs in the vehicle that the victim later identified as DVDs taken in the burglary. Nixon's alibi witnesses were his mother and his girlfriend, both of whom the jury found unpersuasive.
The jury began its deliberations at about 10 a.m. and later broke for lunch. Nixon directs us to a jury note to the district court shortly after 2 p.m. in which the jury asked what would happen if the jury could not reach a unanimous verdict. The court told the jury: “This should not be a consideration in your deliberations.” That same afternoon the jury returned its guilty verdicts. We do not join Nixon in speculating that this note indicated that the jurors had a serious dispute regarding the identity of the burglars. Experience tells us that such speculation is often unfounded. It certainly does not lead us to conclude that Nixon should have a new trial because of the unreliability of Russell's eyewitness testimony, for which no cautionary instruction was requested or given. To the contrary, we conclude that there is not a real possibility that the jury would have rendered a different verdict had the eyewitness identification instruction been given. Sentencing
Nixon contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based on prior convictions without proving those convictions to a jury beyond a reasonable doubt.
Resolution of this issue is controlled by our Supreme Court's decision in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The defendant in Ivory argued that: “(1) the sentencing court increased his sentence by using prior convictions, (2) the convictions were neither included in his complaint nor presented to a jury and proven beyond a reasonable doubt, and (3) prior criminal history should not be included in calculating his sentence.” 273 Kan, at 45. The Ivory court held that Apprendi does not apply where the sentence imposed was based in part upon a defendant's criminal history score. Ivory, 273 Kan. 44, Syl.
Absent some indication that our Supreme Court is departing from its previous position, we are duty bound to follow its precedent. See State v. Jones, 44 Kan.App.2d 139, 142, 234P.3d31 (2010), rev. denied, 292 Kan. 967 (2011). The Supreme Court has given no such indication with respect to this issue. See State v. Baker, 287 Kan. 345, 370–71, 197 P.3d 421 (2008).
Affirmed.