Opinion
No. 110953.
2015-03-20
STATE of Kansas, Appellee, v. Ray E. HOWARD, Jr., Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.Rick Kittel, of Kansas Appellate Defender Office, for appellant.Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
On a February afternoon, four men broke into and burglarized Matthew Wade's home. Before the men fled at the sound of Wade's voice, Wade clearly saw Ray E. Howard, Jr. standing in his living room and holding a television. Howard was subsequently charged with the burglary and criminal damage to property, and a jury convicted him of both crimes. He now appeals, arguing that the district court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge to the exclusion of an African–American juror and also his motion to suppress Wade's eyewitness identification. We find that the facts as a whole indicate that the district court did not abuse its discretion when determining that the State's strike against the challenged juror did not constitute purposeful discrimination. We also find that substantial competent evidence supports the district court's finding that even though the police procedures were somewhat suggestive, there was not a substantial likelihood of misidentification. Accordingly, the court did not err when it denied Howard's motion to suppress.
Factual and Procedural History
In February 2012, Wade awoke in the early afternoon to the sound of someone kicking in his front door. When he looked out the window, he spotted a black Lexus in the driveway; when he approached the stairs, he discovered that a number of men had entered the first floor of his home. From the top of the stairs, he specifically observed Howard, who held a flat-screen television. Wade announced his presence, Howard dropped the television, and the men all fled. Later that day, officers contacted Wade to inform him they had apprehended four men in a black Lexus at a car wash. When the officers brought Wade to the scene, he positively identified each suspect, including Howard. The next morning, Wade again identified Howard, this time in a photographic lineup. The State ultimately charged Howard and three other individuals with aggravated burglary and criminal damage to property.
Prior to trial, Howard moved to suppress Wade's eyewitness identifications at the car wash and in the photographic lineup as impermissibly suggestive. Wade was the sole witness at the motion hearing. After identifying Howard in the courtroom, Wade explained that when he saw Howard in his living room on the day of the burglary, he and Howard were about 10 to 12 feet apart. The windows were open, allowing sunlight into the room and providing a clear view of Howard. Nothing obstructed Wade's view, and he did not require glasses or contacts to see; additionally, he was not under the influence of any medication, drugs, or alcohol. Wade described Howard's multicolored shirt and testified that he “was pretty sure” he noticed Howard's facial tattoo. He explained that he told the police officers about Howard's shirt and his hair, which was styled in “little dreads ... or little braids.” He also testified that he noticed Howard's eye, which he characterized as “messed up” and different from an ordinary eye. Wade stated that he provided this description—eye and tattoo included—to Detective Jeff Sneed. However, he also admitted that he did not know whether he provided those details in his official taped statement.
Later, when police officers arrived to transport Wade to the car wash, they informed Wade “that they had four people in custody and they wanted to see if that was the people ‘cause they were driving the exact vehicle [he] described”—namely, the black Lexus. However, Wade testified that the officers never said anything else about the suspects during the identification process; instead, they simply asked Wade to identify each of the men. According to Wade, the officers never attempted to influence him, never promised him anything for a positive identification, and never suggested that the suspects were definitely the burglars. Additionally, Wade testified that during the identification at the car wash, he was approximately 15 feet from Howard, the lighting was good, and nothing obstructed his view. Wade added that he recognized Howard's shirt as the one from his home, as well as his tattoo and his eye. Wade also recognized the black Lexus.
In terms of the photographic lineup the next morning, Wade testified that he again selected Howard from the six potential suspects. Per his testimony, nothing the officers said or did influenced his decision to select Howard.
On cross-examination, Wade admitted that the crime scene photograph from the top of the stairs did not adequately show the couch, which is where Wade remembered Howard standing. Wade also acknowledged that he initially told the officers he saw only three men in his home, not four. However, Wade denied saying that Howard had a “low haircut.” But Wade's testimony about definitely seeing Howard's facial tattoo conflicted with his preliminary hearing testimony, where he denied telling officers about Howard's tattoo. Wade also admitted that he only saw Howard for a few seconds. Regarding the car wash identification, Wade testified that the officer who picked him up told him the suspects were in a black Lexus and that he (Wade) saw the black Lexus prior to the identification, rather than after. The identification occurred about 5 hours after the burglary, and all four suspects were in custody with their hands handcuffed behind their backs. In terms of the photographic lineup, Wade testified that he could see Howard's unique eye in the photograph and that none of the other individuals had any eye issues. He also stated that the lineup consisted only of black-and-white photographs.
On redirect examination, Wade clarified that his vantage point during the burglary allowed him to see “almost all” of Howard's face. Wade also acknowledged that he might have changed details or left something out of his reports to law enforcement as he had spoken to multiple officers.
After the close of evidence, the State noted that the actual photographic lineup that Wade used to identify Howard was “much clearer” than the one at the motion hearing. However, the record is unclear as to whether the exhibit in the appellate record is the poor quality photocopy from the hearing or the actual lineup Wade viewed.
Ultimately, the district court denied Howard's motion. Although the district court expressed concerns about whether “the best procedure was followed,” it determined that Wade saw Howard in his home without obstructions and that the crime scene photographs submitted at the hearing corroborated Wade's description of the area and his ability to see Howard. Moreover, the district court noted that Howard “has a distinctive face” and that his “eye is significant, is remarkable” and “is obvious, discernible from a reasonable distance.” As such, the district court held that although “the circumstances surrounding the identifications are open to cross-examination,” there was “no legal reason to suppress the identification.”
The case proceeded to a jury trial in June 2013 but ended in a mistrial when the jury could not reach a unanimous verdict. The second jury trial, which is the one relevant to this appeal, took place over 2 days in August 2013. After Howard reminded the district court of its rulings on the motion to suppress eyewitness identification and a motion in limine not germane to this appeal, the parties proceeded to jury selection. As the parties finalized jury membership, however, Howard challenged three of the State's peremptory strikes as racially based. Specifically, Howard argued that the State struck three African–American jurors—Jurors 4, 12, and 27—in order to remove all members of Howard's race from the jury. The State addressed each one of the challenges in turn, arguing that it removed the jurors for reasons unrelated to their respective races, including hesitant answers, disinterest in the proceedings, and failure to properly complete the juror questionnaire. The district court denied all three challenges.
At the trial, Wade testified about the afternoon of the burglary as well as the circumstances surrounding both the identification at the car wash and the photographic lineup. Howard never objected to the introduction of the eyewitness testimony during the State's direct examination. Small portions of Wade's description of Howard, especially that regarding his facial tattoo, differed from Wade's previous testimony. Several other witnesses, including Wade's mother, Sneed, and other police officers testified for the State. Again, the officers' testimony as to what Wade told them about Howard—especially in regard to Howard's hairstyle, facial tattoo, and eye problem—differed slightly from his prior testimony.
During the State's case in chief and prior to the second day of trial, Howard explained to the district court that he meant the previous day's reference to the motion to suppress eyewitness identification and the motion in limine to serve as a substitution for a contemporaneous objection to that evidence. The district court replied that it had understood Howard's intent at the time he mentioned the rulings, and the trial continued as scheduled.
After the State rested, Howard testified on his own behalf. The State also called Sneed as a rebuttal witness, but neither his nor Howard's testimony is relevant to this appeal. The jury ultimately found Howard guilty of both charges.
Prior to sentencing, Howard submitted a motion for new trial to the district court. Howard's motion alleged the district court erred in not suppressing Wade's eyewitness identification testimony and by not finding that the State had struck all the potential African–American jurors as a pattern of discrimination. The district court denied the motion and sentenced Howard to a controlling sentence 120 months' imprisonment.
Howard timely appealed.
Analysis
The district court did not abuse its discretion in denying Howard's Batson challenge.
Howard first argues that his conviction must be reversed because the State impermissibly struck jurors solely on the basis of race. Howard alleges that prior to the parties exercising their peremptory strikes, the potential jury pool contained four African–American jurors and one mixed-race juror and that the State struck all four African–American jurors. The jury questionnaires are not included in the appellate record, and the State neither confirms nor denies this description on appeal.
In Batson, 476 U.S. 79, Syl. ¶ 1, the United States Supreme Court held that the State denies a “defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.” Because of this rule, a defendant's challenge to a State's peremptory strikes as racially discriminatory is often called a Batson challenge. On appeal, review of a Batson challenge is undertaken in three steps, and each step is governed by a different standard. State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142 (2012).
First, the party that challenges the strike must demonstrate a prima facie showing that the party exercising the strike is doing so on the basis of race. This court exercises an unlimited review over the first step. 293 Kan. at 992.
The second step shifts the burden to the party exercising the strike, and that party must provide a race-neutral, facially valid reason for striking the juror. The reason articulated “does not need to be persuasive or plausible” but must be without a discriminatory intent. 293 Kan. at 992.
If a race-neutral reason is provided, the district court must finally determine whether the challenging party proved that the strike is the result of purposeful discrimination. This determination hinges heavily on issues of credibility “because usually there is limited evidence on the issue, and the best evidence is often the demeanor of the party exercising the [peremptory] challenge.” 293 Kan. at 992. Accordingly, this court reviews the district court's decision under the abuse of discretion standard. 293 Kan. at 992.
Howard's argument before this court focuses solely on the challenge to Juror 4. As a preliminary note, both parties acknowledged during voir dire that Juror 4 is an African–American female, and neither disputes that categorization on appeal.
During the proceedings below, Howard argued that the State's strike against Juror 4 was racially based for two reasons: (1) except for explaining that one of her church members belonged to the Kansas City, Kansas, police department, Juror 4 remained silent for the majority of voir dire; and (2) the State declined to strike other jurors who knew or were related to law enforcement. The State responded by explaining that it struck Juror 4 because of her silence and also because she hesitated to answer the question about friends and family in law enforcement. In fact, the State categorized Juror 4's response as follows: “[Defense counsel] had to ask [the question] three or four times before she finally raised her hand and he kept asking three or four times to the jury box to his left. He'd already gone through the front and then the back row and then finally came back to her.” After hearing these arguments, the district court determined that the State had presented “a nonracial reason that appears to be valid” and denied the challenge.
A review of voir dire indicates that the State's categorization of Juror 4's response is accurate. Juror 4 remained silent for the whole of voir dire except when answering the question about her church member. Howard's counsel asked whether anyone on the panel knew or was related to a law enforcement officer approximately five times before Juror 4 volunteered her answer. Although the transcript lacks any indication as to when Juror 4 raised her hand, Jurors 2, 10, and two other jurors who are called by name (rather than number) all volunteered their answers before Juror 4.
But Howard argues that the State's reasoning is invalid because it failed to strike other jurors who volunteered their answers after Juror 4. Because the State struck only the African–American juror and not those jurors who answered after her, Howard reasons that the State's justification is not facially valid.
However, Howard's argument turns solely on the timing of Juror 4's answer, not the manner in which she volunteered. In its brief, the State stresses that it relied “not when she answered the question in relation to the other jurors but when she raised her hand to finally be called on” to exercise the strike. Both the transcript, the parties' briefs, and the motion for new trial suggest that the positioning of potential jurors during voir dire require that the attorneys turn and look at various places in the courtroom when replying to questions; Howard's counsel asked for answers from anyone on his left (presumably the area where Juror 4 sat) several times before Juror 4 volunteered. Although the record is not clear whether the jurors who answered after Juror 4 sat in the same section, the State clearly explained that it was her hesitation and not the timing of her answer that concerned the State enough to strike her. Even if this reason is not persuasive or even plausible in the light of information that this court lacks-such as the layout of the courtroom or Juror 4's demeanor upon raising her hand-it certainly qualifies as a facially valid nondiscriminatory reason. See McCollough, 293 Kan. at 992.
But Howard also contends that even if the State's reasoning is facially valid, the district court abused its discretion by failing to find purposeful discrimination in the State's exercise of its peremptory strikes. To determine whether such discrimination exists, a district court must look at “the persuasiveness of the justification” for the strike, as “implausible or fantastic justifications may be found to be pretexts for purposeful discrimination.” State v. Patton, 280 Kan. 146, 166, 120 P.3d 760 (2005), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Also important to this determination is “the presence of other members of the same minority on the jury” and whether the State struck nonminority jurors for the same reason. McCullough, 293 Kan. at 995. And although failure to strike a nonminority juror with similar characteristics may provide circumstantial evidence of discrimination, “[I]t cannot be considered conclusive evidence in every case as a matter of law.” State v. Lee, 263 Kan. 97, 112–13, 948 P.2d 641 (1997), disapproved on other grounds by Gunby, 282 Kan. 39.
There is very little in the record to suggest that the decision to strike Juror 4 is part of a pattern of purposeful discrimination by the State. Admittedly, the State's decision to exercise several peremptory strikes against African–American jurors is in and of itself suggestive of a discriminatory motive. See Miller–El v. Cockrell, 537 U.S. 322, 342, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (noting that “[h]appenstance is unlikely to produce th[e] disparity” of prosecutors excluding 91% of African–American jurors using 10 of their 14 peremptory strikes). But the State provided multiple persuasive reasons for striking Juror 4. As the State observed during voir dire, the panel as a whole was fairly quiet. That said, the State found both Juror 4's silence and her hesitation in answering the law enforcement question troubling. Howard provided no evidence that would demonstrate that these reasons were either untrue or unpersuasive. In fact, Howard admitted during the Batson challenge that Juror 4 was silent except for when answering the law enforcement question. Moreover, the district court had the opportunity during voir dire to observe Juror 4's demeanor, including her quietness and how long she hesitated before volunteering an answer. The district court could also see where Juror 4 sat in relation to the other jurors who answered the law enforcement question and therefore better determine whether Juror 4 delayed her answer for as long as the State alleged. As previously explained, the determination of whether purposeful discrimination exists is largely one of credibility. McCullough, 293 Kan. at 992. Here, the district court judge clearly found the State's argument was sufficiently persuasive and credible to deny the challenge.
Of course, other quiet jurors ultimately served on Howard's jury due to the panel's general reticence. However, the facts as a whole indicate that the district court did not abuse its discretion when determining that the State's strike against Juror 4 did not constitute purposeful discrimination. The district court did not err in denying Howard's motion to suppress eyewitness identification.
Next, Howard argues that the district court erred in denying his motion to suppress Wade's eyewitness identification. Howard contends that Wade's identification was riddled with inconsistencies and unduly influenced by suggestive police identification procedures.
When reviewing the trial court's decision to include or exclude eyewitness identification testimony, this court applies a mixed standard of review. State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). Specifically, the district court's factual findings are reviewed under the substantial competent evidence standard, but its ultimate legal decision is reviewed de novo. 281 Kan. at 304. The same standard is used when an appellate court reviews the trial court's decision regarding a motion to suppress. See State v. Garza, 295 Kan. 326, 330–31, 286 P.3d 554 (2012).
The most crucial element in considering the admissibility of eyewitness identification is the reliability of the identification, and analysis of this issue requires a two-step process. 281 Kan. at 304–05. First, a court must determine “whether the procedure used for making the identification was impermissibly suggestive.” 281 Kan. at 304. Impermissible suggestion occurs when “the officers conducting the proceeding give the witness information that highlights one of the individuals before the selection is made or makes suggestions about who the witness should select.” 281 Kan. at 305. If the court determines that the police procedure fits this description, the court then must determine if that procedure “led to a substantial likelihood of misidentification.” 281 Kan. at 304.
The instant case features not one but two instances of eyewitness identification: the identification at the car wash and the photographic lineup the following day. Identifications like the one at the car wash are often referred to as a ‘ “show-up” ‘ and occur when “one person, almost always in custody, sometimes in handcuffs, [is] 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). Our Supreme Court has observed that “[t]he problems inherent in any identification procedure are compounded” in a show-up; for that reason, show-ups are generally disfavored unless exigent circumstances justify their use. 275 Kan. at 815; see State v. Reed, 45 Kan.App.2d 372, 380–81, 247 P.3d 1074, rev. denied 292 Kan. 968 (2011). As for the second identification, ‘ “[a] photographic lineup is impermissibly suggestive if the photographs do not depict individuals who generally fit within the witness' description or if there is a gross disparity between the defendant's photograph and the remaining photographs.’ [Citation omitted.]” Corbett, 281 Kan. at 305.
In its ruling, the district court appeared to find the procedures used in the two identifications to be impermissibly suggestive, as it notes some concerns about the police procedure used. A review of the record supports this finding. The circumstances surrounding the show-up at the car wash closely mirror the situation in Reed, where the victim of an assault was called to the mall to identify the suspect. When the victim arrived, the suspect was seated in the back of a marked patrol car and wearing handcuffs—factors that this court considered important when finding the procedure to be impermissibly suggestive. 45 Kan.App.2d at 381. Importantly, the record in that case “contain[ed] no facts to explain why [the victim] was requested to identify Reed at the mall ... instead of at the police station, where the identification undoubtedly could have proceeded under less suggestive circumstances.” 45 Kan.App.2d at 381. In the instant case, Wade was informed prior to the show-up that the police had four people in custody and that those four people had been discovered in the car Wade had described. Upon arriving at the scene, Wade saw the black Lexus. He was then shown each of the four suspects, who were in custody and in handcuffs. And like in Reed, nothing in the record explains why Howard and the others needed to be identified at the car wash rather than at the police station.
The photographic lineup from the next day is plagued with similar issues. It was undisputed at the suppression hearing that none of the other individuals in the lineup had the same or even a similar eye problem as Howard. At the trial, Sneed testified that he attempted to match Howard's facial features to those of the other individuals in the lineup; however, this testimony was not presented at the suppression hearing. The copy of the lineup in the appellate record further demonstrates the disparity between Howard's photo and the others; although the problem with his eye is not overly distinctive, it stands out somewhat among the other photos. This defining feature is likely clear enough to constitute a gross disparity in the photographs. See Corbett, 281 Kan. at 305. But this does not end our analysis. Our Supreme Court has rejected the rule adopted by some states that if the initial identification was unduly suggestive, then no further inquiry is made and the identification evidence is excluded. See Hunt, 275 Kan. at 817.
But the district court also found that these suggestive procedures did not negatively impact Wade's overall identification—or, to put it another way, the procedures did not create a substantial likelihood of misidentification. To determine whether a substantial likelihood of misidentification exists, “[t]he court must consider the totality of the circumstances surrounding the identification” by applying eight factors. Corbett, 281 Kan. at 304. These factors are as follows:
“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.
Applying these factors indicates that even if the procedures employed in the two identifications were impermissibly suggestive, the suggestion did not create a substantial likelihood of misidentification. Wade testified that when he saw Howard during the burglary, it was in a well-lit room without any obstructions. At the time, Wade was sober, awake, and did not require glasses or contact lenses. Although he saw Howard for only a short period of time, nothing in Wade's testimony suggests that he was particularly distracted or not paying attention. In fact, Wade testified that he saw “almost all” of Howard's face. Wade accurately described Howard's hairstyle, his eye issue, and his clothing, and per his testimony, he related this description to the officers on the scene.
The show-up occurred only a few hours after the crime. In terms of the actual identification, Wade testified that he was only 15 feet from Howard, that the lighting was good, and that nothing obstructed his view. Wade recognized not only Howard's eye issue, but also his clothing and his facial tattoo. Moreover, Wade testified that the officers never attempted to influence his identification. Similarly, Wade also testified nothing the police said or did during the photographic lineup—which occurred the morning after the burglary—influenced his decision. Nothing in the record suggests that Wade was not certain of either identification or that Wade was especially susceptible to suggestion or influence by the officers.
On appeal, Howard points out a number of what he alleges are inconsistencies in Wade's testimony. However, the few inconsistencies in Wade's stories only occur at the trial itself, not at the suppression hearing. It is the trial court's denial of the motion to suppress that Howard appeals. Howard never developed these alleged inconsistencies in Wade's testimony at the suppression hearing. Wade was the only witness at the suppression hearing. And the only true inconsistency at the suppression hearing, which concerned whether Wade alerted officers to Howard's facial tattoo, did not alter the district court's finding that Wade credibly identified Howard.
In short, the totality of the circumstances both during the burglary and the identifications demonstrate that the procedures used by the officers in this case, however suggestive, did not lead to a substantial likelihood of misidentification. Wade clearly saw Howard's face, including his distinctive eye, and recognized that face both at the show-up and in the photographic lineup. Wade's identifications were consistent, clear, and certain. As such, substantial competent evidence supports the district court's finding that although the procedures were imperfect, the identification testimony was reliable enough to be admitted into evidence at trial.
Affirmed.