Opinion
No. 109,986.
2014-09-26
STATE of Kansas, Appellee, v. Jeffery COX, Appellant.
Appeal from Wyandotte District Court; Wesley K. Griffin Judge.Randall L. Hodgkinson and Scott A. Johnson, legal intern, of Kansas Appellate Defender Office, for appellant.Mark Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin Judge.
Randall L. Hodgkinson and Scott A. Johnson, legal intern, of Kansas Appellate Defender Office, for appellant. Mark Menefee, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Jeffery Cox of aggravated battery and aggravated burglary. On appeal, Cox contends that the district court erred in denying his motion to suppress the victim's identification. Cox also contends that the district court erred in denying his motion for new trial based on an alleged Brady violation arising out of the State's failure to disclose recorded radio communications by the police between the time of the crimes and his arrest. Additionally, Cox contends that the district court improperly instructed the jury. Finding his arguments are not persuasive, we affirm Cox's convictions and sentence.
Facts
Officer Mark Palmerin of the Kansas City, Kansas Police Department was dispatched to a burglary in progress around 7 a.m. on July 11, 2012. Officer Palmerin met with the victim, Daniel Vargas–Lopez, at his home. Vargas–Lopez told Officer Palmerin that he had heard a noise downstairs and went to investigate. When he did so, Vargas–Lopez noticed that his front door was open and that his television had been moved.
According to Vargas–Lopez, a man attacked him with a white “cross” screwdriver before fleeing out the front door and running in a southeasterly direction. Vargas–Lopez described his attacker as a slender white male, with a tattoo on his forearm. He described the man as having hair on the sides of his head and balding on top. The man wore wire rimmed glasses, a white t-shirt and tan shorts. After Vargas–Lopez spoke with his wife, who had watched the man flee from their home, he clarified that the man was wearing blue shorts rather than tan.
Vargas–Lopez also told the police that he noticed a white car in front of his house that did not belong to him or his neighbors. Officer Palmerin checked the car's registration, which returned the address of a house about 5 blocks away—33 South Baltimore. Around the same time, Officer Kevin Wells arrived on the scene. Officer Palmerin gave Officer Wells the description of the suspect provided by Vargas–Lopez and requested that he go to 33 South Baltimore.
When Officer Wells arrived at 33 South Baltimore, he spoke with Dallas Parton. She told the officer that her boyfriend, Jeffery Cox, had the car and was not home. As Officer Wells was leaving, however, a neighbor stopped him and said that she saw Parton's boyfriend run into the house moments earlier. Her description of Parton's boyfriend was nearly identical to Vargas–Lopez' description of the person who had broken into his home. When confronted with this information, Parton again told Officer Wells that Cox was not there and refused his request to search the house.
While police officers secured Parton's house, Detective Adrian Mansaw prepared a photo lineup, which included Cox and five other similar-looking individuals. Although Detective Mansaw showed Vargas–Lopez the photo lineup, he was not able to identify the person who had attacked him. Subsequently, officers were able to obtain a search warrant for the house located at 33 South Baltimore.
During the search, the police found a white screwdriver near the front door. Furthermore, after breaking through the attic access door, which had been jammed shut from the inside and held closed with a pool cue, Officer Christopher Bussell found Cox hiding under insulation. Similar to the description given by Vargas–Lopez, Cox was a slender white male, with tattoos on his arms, hair on the sides of his head and balding on top. Moreover, he was wearing glasses and blue shorts. After Cox was arrested, Detective Mansaw took Vargas–Lopez to 33 South Baltimore where he immediately identified Cox as the man who had attacked him.
The next day, Cox was charged with one count of aggravated burglary and one count of aggravated battery. Prior to trial, Cox filed a motion to suppress Vargas–Lopez' identification, arguing that the one-person show up was unnecessarily suggestive. The district court conducted an evidentiary hearing and later denied the motion to suppress in a written order. Specifically, the district court concluded that even if the procedure used by the police was unnecessarily suggestive, Vargas–Lopez' identification was reliable and there was not a substantial likelihood that Cox was misidentified.
The case proceeded to a 2–day jury trial. At the conclusion of the trial, the jury found Cox guilty of aggravated burglary and aggravated battery. Subsequently, the district court denied a motion for new trial, in which Cox argued that the State failed to disclose recordings of police radio communications. Thereafter, the district court imposed consecutive sentences of 57 months' imprisonment for aggravated burglary and 12 months' imprisonment for aggravated battery.
Analysis
Suppression of Eyewitness Identification
Cox contends on appeal that the district court erred when it failed to suppress Vargas–Lopez' eyewitness identification. We review challenges to eyewitness identifications under a bifurcated standard. First, we review the district court's factual findings for substantial competent evidence, which is evidence that is legal, relevant, and that a reasonable person could accept as being adequate to support a conclusion. State v. Cruz, 297 Kan. 1048, 1058, 307 P.3d 199 (2013); State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). When reviewing evidence, this court does not reweigh it or pass on the credibility of witnesses. State v. Reed, 45 Kan.App.2d 372, 378, 247 P.3d 1074 (2011). Next, we review the district court's legal conclusions that are drawn from these facts under an unlimited standard of review. Cruz, 297 Kan. at 1058–59.
When a defendant challenges an eyewitness identification, courts should follow a two-step process to determine the admissibility of the evidence. First, it must be determined whether the procedure used to obtain the out-of-court identification was unnecessarily suggestive. If it was, the next step is to consider “whether there was a substantial likelihood of misidentification under the totality of the circumstances.” 297 Kan. 1048, Syl. ¶ 2. In the present case, the district court determined that even if the procedure used by the police in this case—a one-person show up—was unnecessarily suggestive, there was not a substantial likelihood of misidentification. We agree.
Certainly, “the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” 297 Kan. 1048, Syl. ¶ 3. Moreover, the Kansas Supreme Court has recognized that a one-person show up is appropriate when necessitated by exigent circumstances. 297 Kan. at 1062–63. Here, about 4 hours after the burglary, officers took Vargas–Lopez to the residence where Cox had been located for identification. Cox, who was in handcuffs and the only individual there that was not a police officer, was immediately identified by Vargas–Lopez. Considering the State's failure to explain why it did not use a less suggestive procedure, we conclude that the one-person show up was unnecessarily suggestive.
Accordingly, like the district court, we move to the second step in the analysis—the reliability of the identification. Cruz, 297 Kan. at 1064. To determine whether an unnecessarily suggestive identification procedure resulted in a substantial likelihood of misidentification, the district court properly considered several factors under the totality of the circumstances: “the witness' opportunity to view the criminal during the incident, the accuracy of the witness' first description, the time elapsed between the incident and the later identification, and the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly.” 297 Kan. at 1064; see also State v. Hunt, 275 Kan. 811, 819–21, 69 P.3d 571 (2003).
In the present case, a review of the record reveals that Vargas–Lopez heard a noise in his home coming from downstairs. When he went to investigate, a man attacked him with a screwdriver, face to face, before fleeing from the home and running in a southeasterly direction. Vargas–Lopez chased the man out of his house and into the yard, but he stopped when the man put his hands to his waist as if he would pull out another weapon. After police arrived, Vargas–Lopez was able to describe his attacker with significant detail: a slender white male in his 40s, wearing a white t-shirt, tan shorts, and wire rimmed glasses, with grayish blonde hair on the sides and balding on top, a tattoo on his forearm, and carrying a Phillips-head or crosshead screwdriver. After talking to his wife, who had also watched the man as he ran away from their home, Vargas–Lopez corrected his description of the attacker by indicating that the man was actually wearing blue shorts rather than tan shorts.
Vargas–Lopez' description closely mirrored that of Cox. When police officers found Cox barricaded in the attic of his nearby house and hiding under insulation, they found him to be a slender white male with balding hair on top. He was wearing blue shorts, no shirt, wire rimmed glasses, and displaying tattoos on his forearm. As the district court noted, Vargas–Lopez' detailed initial description did not change, except for correcting the color of the shorts. Accordingly, substantial evidence supported the district court's conclusion that Vargas–Lopez had a good opportunity to view his attacker, that he accurately described him, and that he was able to reliably identify Cox 4 hours after he was attacked.
Likewise, the district court found that considering the nature of the event, Vargas–Lopez perceived and remembered it accurately. There is no evidence in the record to suggest that Vargas–Lopez had any impairment in his perception. The nature of the event—a home invasion—was unusual, but Vargas–Lopez remembered the incident accurately. Vargas–Lopez was not only able to correctly describe Cox, but he was also able to describe the color and type of screwdriver with which he was attacked—and a screwdriver matching his description was found near the front door of the house Cox was hiding in at the time of his arrest.
Vargas–Lopez was also alert enough to notice a white car parked outside of his house that did not belong to his neighbors. The registration of this car led police to Cox's house, where officers ultimately found him hiding in the attic. Moreover, one of Cox's neighbors told Officer Wells that a man matching Vargas–Lopez' description ran into the house shortly before police arrived.
Granted, Vargas–Lopez was not able to pick Cox's picture out of a photo lineup. In considering this failed identification, the district court was not persuaded that the later show-up identification was unreliable. Specifically, the district court found that in the photo lineup, Cox's hair was different and none of the men were wearing glasses. Moreover, the district court noted that Cox's physical characteristics matched Vargas–Lopez' initial description of his attacker. Importantly, Cox was able to cross-examine Vargas–Lopez and the other witnesses at trial. See Cruz, 297 Kan. at 1065 (noting that a challenge to the procedures used in an identification is ultimately a weight-of-the-evidence challenge, which should normally be made before a jury through vigorous cross-examination). After weighing the evidence, however, the jury found beyond a reasonable doubt that Cox was indeed the person who had broken into Vargas–Lopez' home and attacked him.
We, therefore, conclude that although the one-person show up was unnecessarily suggestive, there is substantial competent evidence in the record to support the district court's findings about the reliability of Vargas–Lopez' identification and that there was not a substantial likelihood of misidentification under the totality of the circumstances presented. Failure to Disclose Evidence
Cox contends that the State violated his rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to produce recordings of police radio communications that followed the burglary of Vargas–Lopez' home. In particular, Cox argues that, considering the impeachment value of the recordings, the interests of justice required a new trial under K.S.A.2011 Supp. 22–3501(1).
Although we exercise unlimited review over the district court's decision as to the existence of a Brady violation, we give deference to the district court's findings of fact. Further, the denial of a motion for new trial that is based on an alleged Brady violation is reviewed for an abuse of discretion, which can occur when a district court “applies an incorrect legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” State v. Warrior, 294 Kan. 484, Syl. ¶ 13, 277 P.3d 1111 (2012).
“[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.
“There are three components or essential elements of a Brady violation claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.” Warrior, 294 Kan. 484, Syl. ¶ 10.
During Cox's trial, Officer Palmerin testified that he broadcast Vargas–Lopez' description of the suspect over the radio. Either the day before or on the first day of trial, Cox requested recordings of the police radio communications following the burglary. When he finally received the recordings after trial, Cox did not find a recording in which Officer Palmerin broadcast Vargas–Lopez' description of the suspect. As a result, he filed a motion for new trial—and a later amended motion—alleging that the State improperly withheld recordings, which he could have used to impeach Officer Palmerin's testimony at trial.
As to the first element, we do not find that the recordings are exculpatory in nature. But the absence of a broadcast of the suspect's description could have been used to impeach Officer Palmerin's credibility. Unfortunately, the recordings do not appear in the record, so there is no way for this court to review the recordings to make an independent determination regarding what was, or was not, broadcast. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (the burden is on the party claiming error to designate a record supporting that error). Moreover, as the State notes, not all of the police radio channels were recorded and there are other ways in which officers can communicate with one another regarding the description of a suspect. In fact, a review of the record in this case shows that when Officer Wells initially arrived at the crime scene, Officer Palmerin told him about Vargas–Lopez' description of the suspect before sending him to the address shown on the white car's registration.
As to the second element, a Brady violation does not occur when a defendant or counsel knew about the evidence and could have obtained it prior to or during trial. State v. Walker, 221 Kan. 381, 384, 559 P.2d 381 (1977); State v. Wilson, 41 Kan.App.2d 37, 53, 200 P.3d 1283 (2008). Here, the district court concluded that the State did not inappropriately fail to disclose the recordings because Cox knew prior to trial that police radio communications were recorded. On the other hand, as Cox points out, while he did know that the recordings existed, he did not know that the recordings contained impeaching evidence.
Nonetheless, as to the third element, we conclude that the recordings were not material because there is not a reasonable probability that the outcome of the trial would have been different even if the State had produced the recordings. See Warrior, 294 Kan. 484, Syl. ¶ 11 (“[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”) The record in this case reveals that Officer Palmerin recorded in his report the initial description that he received from Vargas–Lopez at the scene of the crime, and he testified about that description at trial. In addition, Vargas–Lopez testified at trial about the description of his attacker.
The manner by which the various officers involved in the investigation received the description of the suspect was not material to the case. Indeed, the close similarity between Cox and Vargas–Lopez' description was not the only evidence that pointed to Cox as the attacker. As indicated above after the attack, Vargas–Lopez identified an out-of-place white car in front of his house. The registration of the car led officers to Cox's house, which happened to be nearby and in the same direction that Vargas–Lopez' attacker had fled. When confronted at the house, Cox's girlfriend said that Cox had been driving the car.
In addition, though Cox's girlfriend said otherwise, a neighbor told officers that she saw a man fitting Cox's description run into the house with a screwdriver just before officers had arrived. When officers obtained a search warrant for the house, they found Cox inside—who had barricaded himself in the attic with a pool cue and was hiding under insulation. Thus, the evidence incriminating Cox is overwhelming.
Based on our review of the record, we find no reasonable probability that evidence of the alleged lack of a broadcast description on the police radio would have changed the outcome of the proceedings. Clearly, the investigating officers had a description of the suspect that was given to them by Vargas–Lopez, and it was shared by some means. Accordingly, we find no Brady violation in this case. Aggravated Battery Instruction
Finally, Cox contends that “[t]he district court erred by effectively directing the jury that the [S]tate proved use of a ‘deadly weapon’ by proof of use of a screwdriver.” “No party may assign as error the giving or failure to give an instruction ... unless the party objects thereto ... unless the instruction ... is clearly erroneous.” K.S.A.2012 Supp. 22–3414(3). Cox concedes that he did not object to the aggravated battery instruction at trial. To determine whether the instruction was clearly erroneous, this court must first consider whether the aggravated battery instruction was legal error. State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012); State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012).
The instruction at issue, number 11, provided:
“The defendant is charged in Count II with Aggravated Battery. The defendant pleads not guilty.
To establish this charge, each of the following claims must be proved:
1. The defendant knowingly caused bodily harm to Daniel Vargas–Lopez with a deadly weapon to-wit: screwdriver.
2. This act occurred on or about the 11th day of July, 2012, in Wyandotte County, Kansas.
[A ‘deadly weapon’ is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.]”
“The offense of Aggravated Battery with which defendant is charged includes the lesser offense of Battery.
You may find the defendant guilty of Aggravated Battery, Battery or not guilty.
When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.”
“The elements of Battery are as follows:
1. The defendant knowingly caused bodily harm to Daniel Vargas–Lopez.
2. This act occurred on or about the 11th day of July, 2012, in Wyandotte County, Kansas.”
“The trial court commits error when it instructs the jury that as a matter of law an element of the offense charged has been established by the evidence.” State v. Brice, 276 Kan. 758, Syl. ¶ 2, 80 P.3d 1113 (2003). In Brice, the State bore the burden to prove that the victim suffered great bodily harm. And the only evidence in the case was that the victim suffered a “through and through bullet wound.” 276 Kan. at 760. The instruction that the district court provided to the jury read as follows: “ ‘As used in these instructions, the term Great Bodily Harm means, a “through and through bullet wound.’ “ “ 276 Kan. at 762. Likewise, given the definition, the jury could not conclude that a “through and through bullet wound” did not amount to great bodily harm—the instruction told the jury that an element of the offense was met as a matter of law. Cox argues that instruction number 11 in his case similarly told the jury that a screwdriver was a deadly weapon as a matter of law.
We examine “ ‘jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.’ “ State v. Hilt, 299 Kan. 176, 184–85, 322 P.3d 367 (2014) (quoting State v.. Williams, 42 Kan.App.2d 725, Syl. ¶ 1, 216 P.3d 707 [2009], rev. denied 290 Kan. 1104 [2010] ). Unlike Brice, which instructed that “great bodily harm” was “a through and through bullet wound,” the instruction here did not say that a screwdriver was a deadly weapon as a matter of law. Here, the jury instruction properly defined “deadly weapon” as “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” See State v. Bowers, 239 Kan. 417, Syl. ¶ 1, 721 P.2d 268 (1986). The jury was free to decide whether the screwdriver as used in this case was a deadly weapon.
We find that the instruction given to the jury in this case was merely tailored to the evidence to the extent that it mentioned a screwdriver—the undisputed evidence was that Vargas–Lopez was attacked with a screwdriver. When read as a whole, the instructions provided the jury with two options (other than not guilty): it could (1) consider the definition of a deadly weapon, find that the screwdriver was a deadly weapon, and find Cox guilty of aggravated battery; or it could (2) find that the screwdriver was not a deadly weapon and find Cox guilty of battery, which was the lesser included charge. Thus, the instruction was not legal error and thus did not amount to clear error.
Affirmed.