Opinion
No. 105,750.
2012-06-8
STATE of Kansas, Appellee, v. Jerome FINCH, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Matthew J. Edge, 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.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Matthew J. Edge, 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 HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 2010, Jerome Finch was identified by one eyewitness who said Finch broke into her house and by another witness who said he saw Finch in the passenger seat of a car driving away from the house. The witnesses identified Finch shortly after the incident as he was presented to them alone and in handcuffs, accompanied by police. The district court denied Finch's pretrial motion to suppress the identifications. A jury convicted Finch of aggravated burglary and aggravated assault, and Finch was sentenced to 52 months in prison.
On appeal, Finch argues that the identifications should have been suppressed because they were the result of suggestive procedures that rendered them unreliable. Finch also argues that a jury instruction was clearly erroneous because it asked jurors to consider the witnesses' degree of certainty of the identifications.
But even if the identification procedures were unnecessarily suggestive—and even though the jury shouldn't have been told to consider witness certainty in evaluating their testimony—there were strong enough indications of the witnesses' reliability to warrant admission of their testimony. We therefore affirm Finch's convictions and sentences.
Factual Background
In July 2010, Dasia Gasper was home alone when two people broke into the Wichita house where she lived with her mother and brothers. Gasper walked to the living room and saw the two people, one of them carrying a gun—initially pointed at her. Gasper recognized the person with the gun as someone who had been to the house before based on a distinctive tattoo on his face. She left the house and called 911.
At the same time, Gasper's neighbor, Richard Stinnett, was on his front porch. Stinnett saw two people get out of a car and run down an alley. He heard what sounded like a door being kicked in. Stinnett walked toward Gasper's house and saw two people run back to the car. The car passed within 5 feet of Stinnett as it drove away. Stinnett saw that the person in the front passenger seat was taller, light skinned, and had a tattoo on his face. Stinnett called 911 and described the car and the three people in it.
Finch and two others were apprehended by police. Finch was handcuffed and placed in a patrol car. About an hour after the incident, an officer brought Gasper near the car and asked if she recognized Finch; she said he was the person with the face tattoo who was inside of her house with a gun. Another officer brought Stinnett to a place where he could observe Finch, and the officer asked Stinnett if he recognized Finch. Stinnett identified Finch as the passenger in the car and said he recognized him because of his face tattoo, height, and build.
Finch was charged with aggravated burglary and aggravated assault, and he moved to suppress the testimony of these eyewitness identifications. The district court denied the motion.
A jury convicted Finch of both charges. Finch was sentenced to 52 months in prison for aggravated burglary and 12 months in prison for aggravated assault, with the sentences ordered to run concurrently.
Finch has appealed to this court.
Analysis
I. The District Court Didn't Err in Denying Finch's Motion to Suppress Because the Identifications Were Sufficiently Reliable to be Admitted into Evidence.
Finch first contends that the witness identifications from the night of the incident should have been suppressed because the circumstances were unnecessarily suggestive and created a substantial likelihood of false identification. Specifically, Finch argues that having witnesses identify him while he was in handcuffs and flanked by uniformed police officers violated his right to due process. The State maintains that the record supports the district court's conclusion that the identifications weren't impermissibly suggestive. The district court denied Finch's motion to suppress because it found nothing in the evidence to indicate that the identifications were suggestive or improper.
This court's review of an eyewitness identification is a due-process determination involving a mixed question of law and fact. State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). This court applies a substantial-evidence standard when reviewing the factual underpinnings of a trial court's decision to admit or suppress an eyewitness identification. 281 Kan. at 304, 130 P.3d 1179. We have unlimited review of the ultimate legal conclusion drawn from those facts. 281 Kan. at 304, 130 P.3d 1179.
The United States Supreme Court recently emphasized that improper police influence of an identification doesn't mean the identification should be automatically excluded. Perry v. New Hampshire, 565 U.S. ––––, 132 S.Ct. 716, 718, 181 L.Ed.2d 694 (2012). Thus, a court must exclude the identification only if there is “ ‘a very substantial likelihood of irreparable misidentification’ “ or when the evidence “ ‘is so extremely unfair that its admission violates fundamental conceptions of justice.’ “ 132 S.Ct. at 720, 723 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 [1968];Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 [1990] ). A witness identification should be admitted for a jury to decide its worth when the indications that the identification was reliable are strong enough to outweigh the corrupting effect of a police-arranged suggestive circumstance. Perry, 132 S.Ct. at 720. A defendant's constitutional rights are still protected even when an eyewitness identification is admitted because the defendant is allowed to attack its credibility and to try to persuade a jury to discount it. 132 S.Ct. at 723.
Due-process concerns arise only when law enforcement officers use an identification process that is both suggestive and unnecessary. 132 S.Ct. at 724. If so, then a court must assess, on a case-by-case basis, if improper police conduct created a “ ‘substantial likelihood of misidentification.’ “ 132 S.Ct. at 724 (quoting Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972] ).
In cases decided before Perry, Kansas courts have adopted a two-step analysis to determine whether to exclude an eyewitness identification. Corbett, 281 Kan. at 304, 130 P.3d 1179. “First, the court determines whether the procedure used for making the identification was impermissibly suggestive. If so, the second step requires an analysis of whether the impermissibly suggestive procedure led to a substantial likelihood of misidentification. The court must consider the totality of the circumstances surrounding the identification,” applying eight different factors. 281 Kan. at 304, 130 P.3d 1179.
So, the first step requires analysis of whether the identification procedure used was both suggestive and unnecessary—or “impermissibly suggestive.” See Perry, 132 S.Ct. at 724;Corbett, 281 Kan. at 304, 130 P.3d 1179;State v. Reed, 45 Kan.App.2d 372, 379, 247 P.3d 1074,rev. denied 292 Kan. 968 (2011) (finding that Kansas courts often use “unnecessarily suggestive” and “impermissibly suggestive” interchangeably). If the defendant doesn't establish improper police conduct, then there is no need for a due-process check for reliability. Perry, 132 S.Ct. at 726. “Identification procedures are impermissibly suggestive if the officers conducting the proceeding give the witness information that highlights one of the individuals before the selection is made or make suggestions about who the witness should select.” Corbett, 281 Kan. at 305, 130 P.3d 1179. An example of an improper suggestion is a circumstance where “ ‘the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone.’ “ Perry, 132 S.Ct. at 727 (quoting United States v. Wade, 388 U.S. 218, 233, 87 S.Ct. 1926, 18 L.Ed.2d 1149 [1967] ). Kansas courts refer to this as a “show-up,” which is described as “essentially one person, almost always in custody, sometimes in handcuffs, being identified by an individual who usually was the victim of a crime a short time before the identification.” State v. Hunt, 275 Kan. 811, 815, 69 P.3d 571 (2003).
This procedure often raises sufficient concerns to find that the identification was unduly suggestive. 275 Kan. at 816, 69 P.3d 571. But the Kansas Supreme Court has found nothing unnecessarily suggestive about some “one-on-one confrontations shortly after the commission of an offense,” and the court recognizes that “time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation.” State v. Alires, 246 Kan. 635, 640, 792 P.2d 1019 (1990) (finding nothing unnecessarily suggestive in roadside identification of two suspects handcuffed and surrounded by officers after “reviewing the totality of the circumstances”); see also State v. Aldridge, 204 Kan. 599, 601–02, 464 P.2d 8 (1970) (finding nothing unduly suggestive in identification of suspect while in handcuffs next to another suspect along a highway). “A literal interpretation of the term ‘unnecessarily suggestive’ is consistent with [the Supreme Court's] analysis, which requires the court to decide whether exigent circumstances necessitated the more suggestive procedure as opposed to use of an alternate procedure that was less suggestive.” Reed, 45 Kan.App.2d at 379, 247 P.3d 1074. But finding that a less-suggestive procedure could have been used only means that the court must move on to the second part of the analysis. 45 Kan.App.2d at 379–81, 247 P.3d 1074 (finding that substantial evidence supported finding that identification of suspect in patrol car was unnecessarily suggestive). This court hasn't favored show-up identifications that lack urgent circumstances. 45 Kan.App.2d at 381, 247 P.3d 1074.
Here, the district judge denied Finch's motion to suppress the eyewitnesses' identifications, saying:
“Well, I see nothing in this evidence that indicates to the court that this lineup was a suggestive lineup or an improper lineup[;] show-ups, as it were, have long been allowed under the law of the State of Kansas and the United States. Shortly after a crime has occurred, [if] the police apprehend suspects, they can bring them back to the scene to determine whether or not they can be identified. That has been approved by our Supreme Court for a number of years. I'm going to overrule the motion at this time.”
The court's brief statement at the conclusion of the suppression hearing suggests that it found that the identifications weren't unnecessarily suggestive, ending the analysis with the first step of the two-step analysis. The court made no findings of fact, so it is difficult to review whether substantial evidence supports them; we note too that our review of the court's legal conclusion is unlimited. Finch's argument seems to blend both steps of the analysis, but he ultimately argues that the identifications were unduly suggestive because he was “presented for viewing while in handcuffs and flanked by uniformed police officers.”
At the suppression hearing, Gasper, Stinnett, and two officers testified about the identification process. Gasper testified that officers showed her two people, and she recognized Finch as one of the people that broke into her house. An officer stood next to Gasper when she made the identification. The officer testified that the people were brought out of a patrol car “[o]ne at a time, separately.” Gasper recognized one of the people shown to her and indicated that it was Finch. Gasper told officers that she recognized the tattoo on Finch's face and said she'd seen Finch at her house before because he knew her brother. Gasper said that she told officers she didn't recognize the second person. Gasper testified that the officer didn't suggest that Finch committed the crime, and she said she didn't feel pressure to identify either person. “They just asked me did I recognize either one of them. And I said, Yeah,” Gasper said. Later, Gasper added that the officer told her that “they had him in custody” and that “they wanted me to just see if I recognized either one of them.” Gasper acknowledged that Finch and the second person were in handcuffs with an officer standing next to them, next to a police vehicle, when she identified them. The officer testified that Gasper was asked to make an identification “to better identify these were actually the people that were in the house” and that the police would have taken action if she said they had the wrong people. The officer said, “I told her she needed to identify these individuals if these were, in fact, the ones that committed the crime, because of her own safety.”
Stinnett testified that another police officer drove him to a fire station near the incident and asked him if he could identify anybody who was involved earlier in the evening. Stinnett testified: “At that point they—separate police cars showed up and individuals were taken out of the vehicle and brought in front of the transport vehicle and I was asked whether or not I could identify them.” Stinnett said that the identification took place about 2 hours after the incident and that two people were brought for him to view approximately 20 to 25 feet away while he sat in a patrol car. Stinnett said he observed one of the suspects being brought out of the back seat of a patrol car. The officer who had driven Stinnett testified the suspects were in handcuffs with at least one officer holding onto them. Stinnett said the officer was with him in the patrol car, and the officer “indicated that they believed that they had some suspects and wanted to know if I was able to make any identification.” The officer testified that he told Stinnett “that we believed that we had the suspects in custody, that we were going to place them in front of the vehicle and needed him to tell me if those were the people that he had seen earlier in the vehicle.” Stinnett said the people “were not brought out as a group, they were brought out individually” and were standing alone. Stinnett said he didn't feel pressure to identify the people as those involved. The officer said he told Stinnett to tell him if they weren't the people he saw earlier, and he testified the show-up identification was necessary “[b]ecause it was still fresh in [Stinnett's] mind and we wanted to make sure that [these were] the right people and while he still had the images fresh in his mind, basically.”
The district court's conclusion that there was “nothing in this evidence that indicates to the court that this lineup was a suggestive lineup” isn't supported by caselaw. Telling a witness that a suspect has been caught and then bringing that suspect alone before the witness is at least a suggestive procedure. See Wade, 388 U.S. at 232–33;Hunt, 275 Kan. at 815–16, 69 P.3d 571. The question of whether the procedure was unnecessarily suggestive is a fact-specific one, and past cases have gone both ways depending upon the specific facts. Some courts have found these identification procedures unnecessarily suggestive. See, e.g., Hunt, 275 Kan. at 812–16, 69 P.3d 571 (finding procedure unduly suggestive when clerk was driven to location where robbery suspect was arrested); Reed, 45 Kan.App.2d at 381, 247 P.3d 1074 (finding procedure unnecessarily suggestive when robbery victim was escorted to identify suspect in back seat of patrol car); State v. Lawson, 25 Kan.App.2d 138, 142, 959 P.2d 923 (1998) (finding procedure unnecessarily suggestive when store employee identified one of two suspects pulled out of police cars with handcuffs). Other courts found that these procedures weren't unnecessarily suggestive. See, e.g., Alires, 246 Kan. at 640–41, 792 P.2d 1019 (finding nothing unnecessarily suggestive when clerk was driven to location where robbery suspect was arrested); Aldridge, 204 Kan. at 600–02, 464 P.2d 8 (finding nothing to indicate procedure was unduly suggestive when witness was brought to where burglary suspects were being held in the country); State v. Galyardt, 44 Kan.App.2d 729, 734–38, 240 P.3d 619, 624 (2010) (finding procedure was suggestive, but not unnecessarily so, when witness was driven to location where burglary suspect was stopped but not arrested), pet. for review filed October 21, 2010 (pending).
Here, though we are somewhat hindered by the lack of factual findings from the district court, the facts seem more similar to cases in which the identification procedures were found to be unnecessarily suggestive. Gasper and Stinnett were brought by police to identify Finch, who was brought out of a patrol car by himself and presented to the witnesses wearing handcuffs. See Hunt, 275 Kan. at 816, 69 P.3d 571;Reed, 45 Kan.App.2d at 381, 247 P.3d 1074;Lawson, 25 Kan.App.2d at 142, 959 P.2d 923. The State has not provided any compelling reason that the identification could not have been done in a less-suggestive manner, and we presume for the purpose of our analysis that the process here was unnecessarily suggestive.
Ultimately, though, whether the identification procedure was unnecessarily suggestive doesn't change the outcome here because the indications of reliability are strong enough to outweigh the effect of the suggestive procedure. See Perry, 132 S.Ct. at 720;Corbett, 281 Kan. at 305, 130 P.3d 1179. Finding that the procedure was unnecessarily suggestive doesn't automatically exclude the evidence, it only means that this court should proceed to the second step of the analysis. See Perry, 132 S.Ct. at 720;Corbett, 281 Kan. at 304–05, 130 P.3d 1179. The second step requires a determination of whether the unnecessarily suggestive procedure led to a substantial likelihood of misidentification. Corbett, 281 Kan. at 304, 130 P.3d 1179. To do so, this court considers the totality of the circumstances by assessing eight factors:
“1. The witness' opportunity to view the criminal at the time of the crime;
“2. The witness' degree of attention;
“3. The accuracy of the witness' prior description;
“4. The level of certainty demonstrated by the witness at the confrontation;
“5. The length of time between the crime and the confrontation;
“6. The witness' capacity to observe the event, including his or her mental and physical acuity;
“7. The spontaneity and consistency of the witness' identification and the susceptibility to suggestion; and
“8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly.” 281 Kan. at 305, 130 P.3d 1179.
The evidence shouldn't be excluded if the identification bears some indications of reliability and there isn't a substantial likelihood of irreparable misidentification. The critical element is the reliability of the identification. 281 Kan. at 305, 130 P.3d 1179.
Here, Finch apparently only challenges the first and seventh factors. He argues that Stinnett had only a brief opportunity to view him at the time of the crime. Stinnett testified that he first saw the suspects from half a block away, and he said, “At that distance I couldn't identify anything—anybody, other than height.” But Stinnett testified that he saw the men again as they returned to their car and drove away, and he said that he was within 5 feet when he saw the occupants of the car. He testified, in part: “As they were returning to the vehicle I saw them, their figures and their complexions at that point in time and then, of course, [I had] a better view of them as the vehicle passed me.” Stinnett said he had no difficulty observing the occupants of the vehicle. Stinnett saw the occupant he later identified as Finch and described him as “tall in height, approximately six foot, thin, [with a] black tattoo on his face [and a] very light complexion.” So, the record supports a conclusion that Stinnett had an adequate opportunity to view Finch at the time of the crime.
Finch also argues that the identifications made by Gasper and Stinnett weren't spontaneous and were a result of “not so subtle suggestions” made by presenting Finch in handcuffs, accompanied by uniformed officers. The seventh factor asks this court to assess the “spontaneity and consistency of the witness' identification and the susceptibility to suggestion.” Corbett, 281 Kan. at 305, 130 P.3d 1179. At the suppression hearing, Gasper said she recognized Finch but not the other person presented in handcuffs. Gasper told police that she recognized Finch because he had been to her house before to see her brother. When asked why she told officers it was Finch who came into her house, she said, “Because it was.” An officer testified that Gasper spontaneously identified Finch: “As soon as she noticed Mr. Finch, she said that's—that's the one that spoke to me.” There was nothing inconsistent about her identification of Finch and nothing that showed she was susceptible to suggestion. In fact, Gasper's failure to identify the second person indicates she wasn't susceptible to suggestion. Stinnett testified that he called 911 and gave information about the number of occupants in the car, their build, and complexions. Gasper and Stinnett testified that they didn't feel any pressure to identify the people shown to them. An officer said he told Stinnett to tell him “if there was any doubt in his mind” about the identifications. Stinnett's identification was consistent with his 911 call. As with Gasper, there was nothing inconsistent about Stinnett's identification of Finch, and nothing that showed he was susceptible to suggestion.
Finch doesn't argue the other six factors. Gasper and Stinnett both demonstrated an adequate degree of attention, accuracy, and certainty. The length of time between the crime and confrontation was 1 hour for Gasper and 2 hours for Stinnett. Neither Gasper nor Stinnett demonstrated mental or physical deficiencies that would have affected their capacity to observe the event, and the nature of the event was such that it was likely that they would perceive, remember, and relate it correctly. See Corbett, 281 Kan. at 305, 130 P.3d 1179. So, these factors indicate that the identifications made by Gasper and Stinnett were reliable and that the possibility of misidentification is highly unlikely. See 281 Kan. at 304, 130 P.3d 1179. Certainly, Gasper and Stinnett being allowed to testify about what they saw and their identifications of Finch wasn't so extremely unfair that it violated fundamental conceptions of justice. See Perry, 132 S.Ct. at 723. And if a district court reaches the right result, its decision will be upheld as correct even if was based on the wrong ground or erroneous reasons. State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). We find no error in the district court's decision to admit this eyewitness testimony.
II. The District Court's Jury Instructions Weren't Clearly Erroneous.
Finch next argues that a jury instruction was improper because it told the jury to consider the witnesses' degree of certainty as one of seven factors to assess the reliability of witness identifications. Specifically, Finch argues that the jury instruction contains outdated language that is scientifically unsound. The State argues that no Kansas case has expressly disapproved of the degree-of-certainty factor. Further, even if the instruction shouldn't have been included, the State argues that Finch failed to show that there is a real possibility the verdict would have been different.
This court applies a clearly erroneous standard of review when a party challenges a jury instruction on appeal but fails to object at trial. K.S.A. 22–3414(3); State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012). An instruction is clearly erroneous only if this court is convinced there is a real possibility that the jury would have rendered a different verdict had the error not occurred. State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012). Here, Finch didn't object to the jury instruction for eyewitness identification. So, the clearly erroneous standard of review applies.
Here, the jury instruction for eyewitness identification stated, in part:
“In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
...
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.”
Our Supreme Court recently held that it is error to give this instruction. State v. Mitchell, 294 Kan. ––––, 275 P.3d 905 (2012); State v. Anderson, 294 Kan. ––––, 276 P.3d 200 (2012). We do not fault the district court for doing so; the instruction was a pattern jury instruction, and our Supreme Court has previously said that district courts should give this pattern instruction “ ‘in any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is serious question about the reliability of the identification.’ “ State v. Duong, 292 Kan. 824, 836, 257 P.3d 309 (2011) (quoting State v. Mann, 274 Kan. 670, 677, 56 P.3d 212 [2002] ); PIK Crim.3d 52.50 (Notes on Use).
But the Kansas Supreme Court has now determined that the factors a jury should be told to consider when evaluating eyewitness testimony should not include how certain the witness is about his or her identification, something that social-science research has shown is an unreliable indicator of eyewitness accuracy:
“Jurors should not be instructed that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness testimony. As worded in PIK Crim.3d 52.20, this factor prompts the jury to conclude that eyewitness identification evidence is more reliable when the witness expresses greater certainty. PIK Crim.3d 52.20 should be modified accordingly.” Anderson, 294 Kan. ––––, Syl. ¶ 2, 276 P.3d 200.
In both Mitchell and Anderson, unlike in our case, the defendant had objected to the instruction about witness certainty, so the standard on review required reversal if the instruction could have reasonably misled the jury. See Mitchell, 294 Kan. at ––––, 275 P.3d 905;Anderson, 294 Kan. at ––––, 276 P.3d 200;State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009). The court set forth a test to determine whether the faulty jury instruction misled the jury to the point of requiring reversal:
“For an appellate court to determine whether the use of the degree of certainty factor in PIK Crim.3d 52.20 could have reasonably misled the jury, it must: (a) decide whether an expression of certainly by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including the factor in the jury instructions.” Anderson, 294 Kan. ––––, Syl. ¶ 3, 276 P.3d 200;Mitchell 294 Kan. ––––, Syl. ¶ 5, 275 P.3d 905.
“If an appellate court determines an eyewitness expressed a degree of certainty when making an identification of the defendant, the court next must determine: (a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness' identification.” Mitchell, 294 Kan. ––––, Syl. ¶ 6, 275 P.3d 905.
The Kansas pattern instruction tells jurors that they may consider “[t]he degree of certainty demonstrated by the witness at the time of any identification of the accused” as one of seven factors to weigh the reliability of eyewitness-identification testimony. PIK Crim, 3d 52.20. In Mitchell and Anderson, the court explicitly rejected a witness' degree of certainty as a factor to be included in the cautionary jury instruction for eyewitness identification. The court concluded that scientific studies aren't definite about whether there is a correlation between certainty and accuracy. The court held that “the current language in PIK Crim.3d 52.20 encourages jurors to give more weight to identifications by a certain witness than an uncertain one and does nothing to inform the jury that certainty evidence may be unreliable .” Mitchell, 294 Kan. at ––––, 275 P.3d 905.
“As worded, this factor prompts the jury to conclude that an eyewitness identification is more reliable when the witness expresses greater certainty, which placed undue weight on eyewitness certainty evidence. Therefore, we hold it is error to instruct the jury on the degree of certainty factor, and we discourage its future use.” Mitchell, 294 Kan. at ––––, 275 P.3d 905.
Because Finch didn't object to the eyewitness-identification instruction in his case, we should set aside the jury verdict only if we are convinced that there's a real possibility the jury would have reached a different verdict had it been properly instructed—a tougher standard to meet than the one applied in Mitchell and Anderson. Still, the court's analysis in those cases in determining whether the use of the degree-of-certainty factor could have reasonably misled the jury helps to inform our analysis. See Mitchell, 294 Kan. at ––––, 275 P.3d 905. “Such inquiries must decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, the nature and extent of the certainty expressed.” Mitchell, 294 Kan. at ––––, 275 P.3d 905. “If the court determines there was no degree of certainty conveyed by the witness when making the identification, the jury could not have been misled by including this factor in the instruction.” Anderson, 294 Kan. at ––––, 276 P.3d 200 Mitchell, 294 Kan. at ––––, 275 P.3d 905.
Here, neither of the two witnesses was asked at trial about their degree of certainty of their identification of Finch. On cross-examination, an officer testified that Gasper said “for sure that was him” when she identified Finch. The trial transcript states:
“Q. And ... did she tell you what in particular made her able to identify the person she identified?
“A. Yeah. She gave me the height at about being 6'1? 6'2?[—]that was the correct height. And that was the individual that she described to me as being the first one. She said that it was for sure that was him. Because I asked her, you know, again ... are you for sure that is the individual? She said, Yes. An identifying factor also [was Finch's] tattoo on the right side of his face....”
So, there was one expression of Gasper's certainty communicated to the jury. The nature and extent of the Gasper's certainty expressed was limited to her telling an officer “yes” when asked if she was sure Finch was the person she saw in her house.
Because Gasper's degree of certainty was communicated to the jury by the officer, we would next determine, had Finch objected to the instruction and the test applied in Mitchell been applied: “(a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness' identification.” See Mitchell, 294 Kan. ––––, Syl. ¶ 6, 275 P.3d 905.
Gasper's identification was a critical aspect of the State's case because she was the only person in the house who witnessed the crimes of aggravated burglary and aggravated assault. She was the victim of the aggravated assault, and her identification of Finch connected him to the crime. But there isn't a serious question about the reliability of Gasper's identification because she recognized Finch as having been to her house twice before to visit her brother. Finch's closing argument didn't challenge the reliability of Gasper's identification. The normal concerns about eyewitness reliability are lessened here because Gasper had seen Finch before. See Mitchell, 294 Kan. at ––––, 275 P.3d 905 (noting that identification was reliable because the witness knew the defendant). Therefore, there isn't a serious question about the reliability of Gasper's identification of Finch. Even under the more rigorous standard applied in Mitchell and Anderson when the defendant objects to the jury instruction, we would find no cause to reverse Finch's conviction based on the faulty jury instruction.
In oral argument, Finch made one argument that the Mitchell and Anderson opinions didn't explicitly consider: A witness may express certainty in many ways, not all of which are explicit statements. For example, one witness might point at the defendant and emphatically say, “That's the man!” Another might meekly say, when asked if the defendant was the person who committed the crime, “That's the man.” The transcript might well read the same (exclamation marks not being inserted into transcripts based on some clear standard), but the jury's observation about witness certainty would be different. Other, nonverbal cues might also give a jury varying indicators about witness certainty in an identification.
While Finch may have a point in theory, this is not the case in which it has some effect in practice. Defense counsel didn't challenge the reliability of Gasper's identification in closing argument, and Gasper had seen the defendant before the key encounter between them. Gasper's identification of Finch provides corroboration for Stinnett's separate identification. We are convinced here that there is no real possibility that the jury would have rendered a different verdict had the eyewitness-identification instruction not included witness certainty as a factor the jury should consider.
III. The District Court Didn't Err in Sentencing Because Criminal History and Juvenile Adjudications Aren't Required to be Proven to a Jury.
Finch also presents two issues to preserve for federal review, conceding that the Kansas Supreme Court has decided both contrary to his position. First, Finch argues that his juvenile adjudications weren't proven to a jury beyond a reasonable doubt in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact that increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction, must be submitted to jury and proven beyond a reasonable doubt). The Kansas Supreme Court has rejected this argument. State v. Hitt, 273 Kan. 224, Syl. ¶¶ 1, 2, 42 P.3d 732,cert. denied537 U.S. 1104, 123 S.Ct. 962, 154 L.Ed.2d 772 (2002). Second, Finch argues that his prior criminal convictions used to increase his sentence weren't included in the complaint or proven beyond a reasonable doubt in violation of Apprendi. The Kansas Supreme Court has also rejected this argument. State v. Ivory, 273 Kan. 44, Syl. ¶ 1, 41 P.3d 781 (2002). The Kansas Supreme Court hasn't indicated a change on these two issues. State v. Hughes, 290 Kan. 159, 173, 224 P.3d 1149 (2010). As a result this court is bound by Kansas Supreme Court precedent. State v. Reese, 42 Kan.App.2d 388, 390–91, 212 P.3d 260 (2009).
The district court's judgment is affirmed.