Opinion
NO. 2013-CA-000109-DG
02-21-2014
B.L., A CHILD UNDER EIGHTEEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Renee VandenWallBake Frankfort, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 12-XX-00003
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE: B.L., a juvenile, appeals from his conviction of felony theft by unlawful taking over $500. On appeal, B.L. argues that the trial court should have suppressed the identification of him by the victim as the identification was highly suggestive and unreliable. The Commonwealth has failed to file an Appellee brief in this matter. We believe that reversal is warranted sub judice; accordingly, we reverse and remand this matter for further proceedings.
Around 10 p.m. on December 3, 2011, Mrs. Mecklin was sitting on a bench with her husband on the Kentucky side of the pedestrian bridge which spans the Ohio River. A thief, described by Mrs. Mecklin as a tall black juvenile in dark clothing, leaned over the wrought iron fence, yelled "huh" in her face, grabbed her purse, and ran. Two police officers, Officer Buemi and Officer Dunn, heard the broadcast of the offense and ran onto the bridge. Within five minutes of the theft, they came upon the bridge and saw B.L. jog a little and then continue walking across the bridge. He was behind a larger group of African American juveniles who were running across the bridge.
Officer Buemi yelled, the group kept running, and B.L. stopped. He was about halfway across the bridge. He willingly talked to Officer Buemi and let the officer search him. B.L. denied being a part of the theft. The officers found a B.B. gun on B.L. None of Mrs. Mecklin's property was found on B.L., although some of it was later recovered across the bridge in Cincinnati.
B.L. was taken back across the bridge in handcuffs flanked by three officers who then asked Mrs. Mecklin if B.L. was the one who stole her purse. She said yes.
On March 12, 2012, B.L. moved the district court to suppress all evidence based on an illegal stop in addition to a motion to suppress Mrs. Mecklin's identification of B.L. Two days later the district court held a suppression hearing.
Officer Buemi testified as to the stop he made of B.L. Since B.L. was a willing participant, the court overruled the motion to suppress based on the stop. Officer Dunn and Mrs. Mecklin testified as to the identification procedure. Mrs. Mecklin testified that she knew that B.L. was the thief because of the way he looked and because he was wearing a "distinctive brown hoodie" just like the thief. Neither officer could remember what B.L. was wearing at the time of the arrest. B.L. testified at the hearing that he had been wearing a black jacket, tan pants, and black hat at the time of the arrest. He stated that he did not steal the purse but saw it happen. B.L. had been spending the day with friends but they had left and he was hanging out by himself on the pedestrian bridge when the theft occurred. Afterwards, he walked across the bridge when the officers called to him. B.L. claimed that he was carrying the B.B. gun because he wanted to sell it.
This finding is not before us on appeal, but we do note that counsel is correct that such issue was properly before the trial court on a suppression hearing; arguably, if B.L. had responded to a show of authority, he may not have felt free to leave, and, thus, would have been seized. See Taylor v. Commonwealth, 125 S.W.3d 216, 219-20 (Ky. 2003), and Kotila v. Commonwealth, 114 S.W.3d 226, 232 (Ky.2003)(abrogated on other grounds by Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006)), citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968).
After hearing the testimony, the court ruled that while the identification was suggestive, under the five factor test of Neil v. Biggers, 409 U.S. 188,199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972) test, the identification was admissible. The court then found B.L. guilty of theft by unlawful taking over $500. A disposition hearing was held on May 23, 2012. The district court accepted the Department of Juvenile Justice's recommendation of 20 days in detention, 30 days suspended, and $659.99 in restitution. From that dispositional order B.L. appealed to the Campbell Circuit Court and raised two arguments: that the identification should have been suppressed and that the restitution was improperly set. The circuit court reversed the restitution amount but found the identification to be reliable and admissible. It is from this that B.L. now appeals and to which we granted discretionary review of the sole issue of the admissibility of the identification.
As discussed infra, the five factors include: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. See Biggers at 409 U.S. at 199-200, 93 S.Ct. at 382.
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On appeal, B.L. argues that the identification should have been suppressed as the procedure employed by the police was suggestive and the identification was unreliable under Biggers.
We will not disturb the circuit court's findings of fact subsequent to a hearing on a motion to suppress if they are supported by substantial evidence. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007). However, the circuit court's legal conclusions are reviewed de novo. Id.
Sub judice, the court below concluded that the show-up identification procedure was suggestive, to which we agree. Thus, the central question is "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382. When looking to the totality of the circumstances,
the relevant factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' [sic] degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.409 U.S. at 199-200, 93 S.Ct. at 382.
B.L. argues that there was a substantial likelihood of misidentification as the witness did not have very long to view the criminal at the time of the crime; the degree of attention did not appear great given the sparse description of the thief; and the conflicting testimony regarding a brown hoodie, which then brings into question the accuracy of the description. B.L. acknowledges that the length of time between the crime and the confrontation was very short. Ultimately, we believe this issue to be resolved by the Commonwealth's failure to file an Appellee brief.
The Commonwealth has failed to file an Appellee brief. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) permits this Court the following options in this situation: "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the Appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." We have elected option two, as B.L.'s brief reasonably appears to sustain such action. Accordingly, we reverse and remand this matter for further proceedings.
In light of the aforementioned, we reverse and remand this matter for further proceedings.
COMBS, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Renee VandenWallBake
Frankfort, Kentucky
NO BRIEF FOR APPELLEE