Opinion
NO. 2016-CA-000299-MR
06-09-2017
DUSTIN REAGAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy Alyette Durham II Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 15-CR-00344-001 OPINION
AFFIRMING
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BEFORE: CLAYTON, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: Dustin Reagan appeals from the Fayette Circuit Court's judgment and sentence of imprisonment entered March 2, 2016, following the court's denial of his motion to suppress. Discerning no error, we affirm.
On January 27, 2015, Ora Bridges and her assistant, Wendy Berryman, arrived at Ken Couch's home in Lexington to perform a regularly scheduled housecleaning service. Because he had a dentist appointment, Couch knew he would not be home when the cleaning service arrived, and so left a house key under his doormat. When they arrived, Berryman began unloading the vacuum cleaner and other supplies from the car. Meanwhile, Bridges used the key under the mat and went inside.
Upon entering the home, Bridges looked down the hallway and saw a man kneeling in the master bedroom who appeared to be rummaging through a box. She did not get a good look at his face, but Bridges later described the individual as a young white male, approximately six feet tall, wearing a tan Carhartt jacket, blue jeans, and a baseball cap. Bridges did not know who this man was, and she did not know of anyone who was supposed to be in the home at that time. She asked the man what he was doing there, and he replied that he was supposed to be working. The man then stood, placed his hand in his pocket, and walked by Bridges toward the front door. In doing so, he squeezed past Berryman, who had entered the home and was standing in the doorway. Because the man passed so close to her, Berryman was able to get a clear view of his face. After his exit, Berryman observed the man walk quickly away from the house, losing sight of him when he went around a nearby building. Bridges called 911, and the two women waited outside for the police to arrive. After arriving on the scene, the investigating officer contacted the forensics unit of the Lexington Division of Police, who collected fingerprints from the box on the bedroom floor. When Ken Couch arrived home, he was able to confirm that an item previously in the box, a .380 caliber Ruger semi-automatic pistol, had been taken. One fingerprint lifted from the box was determined to belong to the appellant, Dustin Reagan.
The case was assigned to Detective John Ruzzene, who assembled a photographic array depicting six individuals, including Reagan. Detective Ruzzene would later testify the other five photographs in the array were selected based upon the hair color, eyes, age, and weight of the suspect. Each photograph in the array was a similar printout of a detention center booking photograph. Other officers at the Lexington Division of Police, with no connection to the case, helped to select the photographs. Detective David Fetko, accompanied by Detective Ruzzene, traveled to Ora Bridges' home in order to present the array to the two eyewitnesses. This was an attempt to follow Lexington Division of Police policy, which states that the officer who composes the photographic array should not be the officer who presents it to the witness for identification. Because Bridges did not get a look at the suspect's face, Detective Fetko presented the array to Berryman. At that point, Detective Ruzzene was nearby, conversing with Bridges. Detective Fetko presented the photographs to Berryman without making any comments during the process. Berryman immediately recognized the man in the third photograph, Dustin Reagan, as the one who had been in Couch's home. Lexington police arrested Reagan approximately one week after Berryman's identification.
On April 14, 2015, the Fayette County grand jury indicted Reagan on the following charges: one count of first-degree burglary; four counts of receiving stolen property (greater than $500); first-degree possession of a controlled substance (heroin); possession of burglary tools; possession of drug paraphernalia; and being a first-degree persistent felony offender. Reagan subsequently filed a pretrial motion to suppress Berryman's photographic identification. Following a suppression hearing on the issue, the circuit court denied Reagan's motion. At his jury trial on the burglary and persistent felony offender charges, Reagan was found guilty of second-degree burglary and being a second-degree persistent felony offender. The jury recommended a ten-year sentence, enhanced to seventeen years' imprisonment because of Reagan's status as a persistent felony offender. This appeal follows.
Kentucky Revised Statutes (KRS) 511.020, a Class B felony.
KRS 514.110(3)(a), a Class D felony.
KRS 218A.1415, a Class D felony punishable by up to three years' incarceration.
KRS 511.050, a Class A misdemeanor.
KRS 218A.500(2), a Class A misdemeanor.
KRS 511.030, a Class C felony.
KRS 532.080(2). --------
Reagan's issues on appeal stem from the denial of his motion to suppress Berryman's pretrial identification of him as the suspect in Detective Ruzzene's photographic array. He first argues the identification should be suppressed because the array did not comply with the police department's standard procedures. In his second argument, Reagan contends the array improperly singled him out for selection, because his was the only photograph in which the subject had a "long face." Finally, Reagan argues the presentation was improper because Detective Ruzzene was present and made comments to Berryman during the selection process. Reagan contends these circumstances resulted in an unduly suggestive identification procedure, sufficient to deprive him of due process under Sections 2, 7, and 11 of the Kentucky Constitution, and the Fifth and Fourteenth Amendments of the United States Constitution.
Reagan is correct in identifying the constitutional concerns associated with purportedly suggestive identification procedures. "[T]he conduct of identification procedures may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law." Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969) (citation and internal quotations marks omitted). In a more recent case, the United States Supreme Court stated it has recognized "a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime." Perry v. New Hampshire, 565 U.S. 228, 232, 132 S.Ct. 716, 720, 181 L.Ed.2d 694 (2012). However, it is still true that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
Observing these constitutional principles, the Supreme Court of Kentucky has provided the following procedure and standard of review, related to the suppression of eyewitness identification evidence:
[T]he trial court has a two-fold task. First, it must determine whether the photo array (or other identification procedure employed by police) was unduly suggestive, and if so (but only if so) it must then determine whether the identification was nevertheless sufficiently reliable in view of the totality of the circumstances. As with other suppression rulings, we review the trial court's findings of historical fact, if any, for clear error, but its ultimate application of the constitutional standards is a question of law which we review de novo.Jacobsen v. Commonwealth, 376 S.W.3d 600, 606 (Ky. 2012) (citations omitted).
Reagan first contends the police did not comport with their own policies and procedures regarding photographic arrays. Pursuant to Lexington Division of Police policy, presentation of photographic arrays to witnesses should be "double blind," i.e., the officer presenting the array to the witness should not be the same officer who composed the array, nor should the presenting officer know the subject of the current investigation. However, the presenting officer in this case, Detective Fetko, knew Reagan, having previously investigated him in connection with another incident. Furthermore, Detective Fetko knew Reagan was the suspect in this investigation. Although the identification procedure was flawed, to the extent that it did not comport with Lexington Division of Police policy, Reagan cites no authority for the proposition that this alone should lead to exclusion of the identification. Instead, the threshold question is whether the identification procedure itself was "unduly suggestive." Id. For that determination, we turn to Reagan's two other arguments.
Despite Reagan's assertions that his photograph was the only one with a "long face," we cannot agree that Reagan's distinctive facial feature requires exclusion of the identification. Detective Ruzzene testified the subjects in the other photographs were chosen because they were similar to the description of a young white male, with the suspect's approximate hair color and weight. A single distinctive characteristic does not render a photographic identification sufficiently suggestive to result in a due process violation. See King v. Commonwealth, 142 S.W.3d 645, 650 (Ky. 2004) (finding no due process violation when the suspect was the only subject wearing eyeglasses in a photographic array).
Reagan's final issue, regarding Detective Ruzzene's presence at the array presentation, is likewise unavailing under these circumstances. We agree with Reagan's contention that an identification becomes unduly suggestive when an officer actively encourages a witness to choose a particular subject from a lineup or photographic array. However, such a circumstance did not occur in this case. The record includes an audio recording of the photographic array identification, which the circuit court heard in Reagan's suppression hearing. Detective Fetko recited the instructions to Berryman included on the first page of the array. Those instructions, inter alia, explicitly state that the photographs may not include the person being investigated, and that she should not feel that she has to make an identification from those photographs. Berryman indicated her understanding by initialing the instruction page. Detective Fetko then proceeded to show the photographs to Berryman, without commenting on any of them. It is very clear from the audio recording when Berryman identifies Reagan's photograph, because she repeatedly smacks the photograph with her hand. She is emphatic in her identification, saying, "I am almost one hundred percent sure this is him . . . I really am."
During this proceeding, Detective Ruzzene only speaks to Berryman after her positive identification of Reagan's photograph. Following identification, the instruction page of the photographic array requests the witness: (1) to describe the circumstance in which the witness saw the identified individual; and (2) to describe the degree of certainty regarding the witness's identification. After Berryman struggled to express her answers in her own words, Detective Ruzzene interjected "client's house" as a possible description of the locale. When Berryman then got to the portion of the form to describe her certainty, she said, "I am almost absolutely, positively sure that was him." Detective Ruzzene simply responded, "If you are positive, that's what you say." Despite these comments, however, the record demonstrates Detective Ruzzene did not participate in Berryman's prior selection of Reagan's photograph. He was merely trying to help Berryman put her previously expressed degree of certainty about the identification into written form. The record reflects Berryman was indeed very certain in her identification, and Detective Ruzzene did not alter her degree of certainty.
We agree with the circuit court's conclusions finding nothing unduly suggestive about the photographic identification procedure. In the absence of undue suggestiveness regarding a photographic identification procedure, we need not reach the second part of the test, regarding whether the identification was sufficiently reliable. Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999).
For the foregoing reasons, we affirm the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Roy Alyette Durham II
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky