Opinion
NO. 2014-CA-001813-MR
05-20-2016
TRAVIS D. TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JUDY D. VANCE, JUDGE
ACTION NO. 13-CR-00103 OPINION
AFFIRMING BEFORE: CLAYTON, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Travis D. Taylor appeals from the Casey Circuit Court's order denying his motion to suppress and from the trial court's judgment and sentence following a jury trial. For the following reasons, we affirm.
I. Factual and Procedural Background
On September 9, 2013, Jerry Jones' home was burglarized by a man and a woman. He noticed a silver and black motorcycle in his driveway and sitting on the seat was a black helmet with a red skull painted on it. When Jones encountered the man and woman in his bedroom, he yelled at them to "drop everything" and the man knocked Jones backwards. Jones contacted the Casey County Sheriff's Department, and Deputy Sheriff Chad Weddle responded to the dispatch. Jones described the man who burglarized his home as being skinny, about 5'6" and having "sandy red hair," a goatee, a "dusty beard," and a "shrunken-in mouth." He described the woman as being 5'4" with a medium build and shoulder-length blonde hair.
Deputy Weddle drove around the area looking for the motorcycle. He noticed a motorcycle resembling the description Jones had given him in front of a nearby house, and discovered a man named Cornett at the house. Cornett had sandy red hair. Rather than taking a picture of Cornett and combining it into a photo array, Deputy Weddle showed a single photograph of Cornett to Jones. Jones said that the man in the photograph was not the man who burglarized his home.
Deputy Weddle repeated the same procedure over the next several weeks, showing Jones three or four individual pictures. When Jones did not identify any of those pictures as the male burglar, Deputy Weddle reached out to Pulaski County Detective John Hutchinson. Detective Hutchinson sent Deputy Weddle a photograph of Travis Taylor. Deputy Weddle saved the photo of Taylor on his cell phone and showed it to Jones, who identified Taylor as the man who burglarized his home.
Taylor was indicted for Burglary first-degree, Theft by Unlawful Taking ("TBUT") over $500 but less than $10,000, Criminal Mischief, and being a Persistent Felony Offender in the First Degree ("PFO"). Prior to trial, Taylor filed a motion to suppress the prosecution's identification evidence. Taylor alleged that the deputy sheriff's actions in taking photos of suspects one-by-one to Jones, rather than providing a multiple-photo lineup, was unduly suggestive and thus created an unreliable identification when Jones identified Taylor as the man who had burglarized his home. The trial court denied Taylor's motion to suppress, noting that although a better lineup could have been used, under the totality of the circumstances, Jones' identification was reliable.
At trial, Jones identified Taylor as the man who burglarized his home. Taylor testified that he was not in the vicinity of Casey County on September 9, 2013. He claimed he was celebrating the birthday of one of his stepdaughters at the Holiday Inn in Somerset from September 8th through September 10th or 11th. His paramour, Kelly Hollister, her three daughters, Taylor's son, and Conner and Vicki McGinnis, Hollister's parents, were present at the party. Taylor further testified that at that time, Kelly Hollister was five months pregnant with twins and was showing. On November 3, 2014, Taylor was found guilty of Burglary second-degree, TBUT over $500, and Criminal Mischief. After he was found to be a PFO in the second degree, he was sentenced to 15 years' imprisonment.
On appeal, Taylor makes four arguments. First, he claims that the trial court erred by denying his motion to suppress the identification evidence as unreliable. Second, Taylor argues that the trial court committed palpable error by permitting a witness to read the entirety of a previous judgment against him during the penalty phase. Third, he claims that the trial court permitted the prosecution to shift the burden of proof to Taylor through a number of questions, only one of which Taylor objected to at trial. Lastly, he argues the trial court improperly imposed court costs on him as an indigent defendant.
II. Suppression of Identification Evidence
First, we will address Taylor's suppression argument.
An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a [de novo] review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010), quoting Commonwealth v . Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
The Kentucky Supreme Court thoroughly described the issue with identification testimony and the process for reviewing the use of such evidence at trial in Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999).
A conviction based on identification testimony following pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so 'impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable misidentification. The determination of whether the in-trial use of identification testimony violates due process involves a two-step process. First, the court examines the pre-identification encounters to determine whether they were unduly suggestive. If so, "the identification may still be admissible if 'under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive."Id. (internal citations omitted). Thus, the review of the use of identification evidence at trial involves a two-tiered approach: first, this court must determine whether the identification procedures were unduly suggestive; if the procedure was unduly suggestive, we must then decide if, under the totality of the circumstances, the identification was reliable. Id.
The trial court found that Deputy Weddle's procedure of bringing one photo at a time to Jones to ask if the man in the photograph was the man who burglarized his home was unduly suggestive. An out-of-court, pretrial identification may be excluded if "unnecessarily suggestive and conducive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); see also Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972) (Identifications admissible only when "no substantial likelihood of misidentification" exists). Our analysis, therefore, turns on whether the procedure employed by the police created a substantial likelihood of misidentification. Weddle did not combine photos into a photopack or photo array, and showing a witness a single photograph has been held to be an unduly suggestive identification procedure. See Fields v. Commonwealth, Nos. 2009-SC-000435-MR, 2009-SC-000457-MR, 2009-SC-000732-TG, 2011 WL 3793149 (Ky., Aug. 25, 2011) (holding that showing a witness a single photograph of the accused and no others was unduly suggestive). We agree with the trial court that Deputy Weddle's procedure created a substantial likelihood of misidentification and, accordingly, was unduly suggestive.
No written order was entered denying Taylor's motion to suppress; the trial court heard his motion prior to trial and announced its decision to deny the motion on the record at that hearing. While the trial court did not explicitly state that the identification procedure was unduly suggestive, the trial court noted that a "more comprehensive or better lineup" could have been conducted, implying that the procedure used by Deputy Weddle was unduly suggestive. The court then proceeded to apply the totality of the circumstances test before concluding that the identification was reliable.
In one important respect, this case differs from the usual "unduly suggestive" single photograph investigation in that Deputy Weddle presented a number of single photographs to Jones in an effort to identify the perpetrator, and Jones stated that the first few individuals were not involved.
Therefore, we must ask whether, under the totality of the circumstances, the identification was still reliable despite the unduly suggestive nature of the identification procedure. The totality of the circumstances is examined in light of five factors affecting the reliability of a witness's identification: 1) witness' opportunity to view the criminal at the time of the crime; 2) witness' degree of attention; 3) accuracy of the witness' prior description; 4) witness' level of certainty at the confrontation; and 5) the length of time between the crime and the confrontation. Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003), citing Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382. The trial court mentioned each of these factors in its decision at the suppression hearing before concluding that Jones' identification of Taylor was still reliable.
We agree with the trial court that despite the procedure employed by Deputy Weddle, Jones' identification of Taylor is still reliable. The burglary occurred during broad daylight, and Jones was only a foot away from the perpetrator. Jones testified that he was focused on the day of the burglary and no evidence was presented to suggest otherwise. Furthermore, very little time passed between the burglary and Jones' identification of Taylor. While small discrepancies between Taylor's appearance and Jones' description of the male burglar may exist, his description was overall very accurate and changes in appearance were explained at the suppression hearing. Finally, Jones seemed very certain and confident in his identification of Taylor as the burglar. In sum, we find no reason to believe that Jones' identification was unreliable or that a misidentification occurred. Consequently, the trial court properly denied Taylor's motion to suppress the identification evidence.
The trial court found that two to three weeks had passed; the record shows that the actual identification occurred on September 13, 2013, just four days after the burglary.
The accuracy of the description or identification of Taylor's co-defendant is irrelevant to this appeal.
III. Alleged Penalty Phase Error
Next, Taylor argues that the trial court committed palpable error when it permitted Deputy Weddle to read the entirety of a prior judgment, which voided Taylor's diversion and sentencing him to eight years in prison, during the penalty phase of trial. In order to acquire a reversal based on palpable error, this Court must determine that manifest injustice has resulted from an error which affects the substantial rights of the parties. RCr 10.26; Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009).
Kentucky Rules of Criminal Procedure.
KRS 532.055(2)(a) permits the Commonwealth to offer evidence of prior convictions, including the nature of the prior offenses for which the defendant was convicted, during the sentencing stage in felony cases. The evidence of prior convictions is limited to conveying to the jury the elements of the prior offenses. Mullikan v. Commonwealth, 341 S.W.3d 99, 109 (Ky. 2011). Taylor complains that in reading the entirety of the prior judgment, the Commonwealth violated the spirit of Mullikan by informing the jury that Taylor committed an infraction causing his diversion to be revoked, that a substantial risk existed that Taylor would commit another crime during any period of probation or other conditional discharge, that he needed correctional treatment, and that an alternative to incarceration would depreciate the seriousness of his crime.
Kentucky Revised Statutes.
We do not believe that a manifest injustice has occurred. Taylor did not receive the maximum sentence for being a PFO, and the introduction of his previous felony conviction was necessary proof of his PFO status. The excess information contained in the judgment provided no extra information that cannot already be gathered from evidence of a conviction and imprisonment.
IV. Alleged Burden-Shifting
A. Preserved Error
Next, Taylor argues that the Commonwealth improperly shifted the burden of proof to Taylor several times throughout the trial. Taylor only objected to one instance in which he claims the burden was shifted: he claims that in the Commonwealth's cross-examination of him, the Commonwealth asked a question about his and his paramour's children being present at the Holiday Inn without Taylor ever mentioning that the kids were present that weekend. However, Taylor's objection to this question was sustained at trial, and he requested no further relief; thus, his right to any further relief, even under palpable error, was waived. See West v. Commonwealth, 780 S.W.2d 600, 603 (Ky. 1989).
B. Unpreserved Errors
Taylor argues that three other instances of burden-shifting occurred at trial, and that the trial court improperly imposed court costs on him as an indigent defendant. Since he did not object to any of these issues at trial, he seeks palpable error review under RCr 10.26. First, during its case-in-chief, the prosecution asked Deputy Weddle if Mr. Taylor had spoken with him during his investigation of the case, and Deputy Weddle replied, "Before I could question him, he was already appointed a lawyer." Taylor claims that this was intended to call impermissible attention to his silence at the time of his arrest. See Hunt v. Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009) (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Romans v. Commonwealth, 547 S.W.2d 128, 130 (Ky. 1977)). However, not every reference to a defendant's testimony or lack thereof is impermissible; such comments are only impermissible when intended to serve as commentary on the defendant's silence. Ragland v. Commonwealth, 191 S.W.3d 569, 588 (Ky. 2006). In context, the Commonwealth's question was merely an inquiry into Deputy Weddle's investigation. We do not believe the question, or the reply, was intended to imply that the fact that Taylor did not speak to Deputy Weddle is indicative of his guilt.
Second, during cross-examination, the prosecution asked Taylor if he could produce receipts from his stay at the Holiday Inn the weekend of the burglary. Taylor alleges this shifted the burden to him to prove that he did not commit the burglary. Again, we disagree. Taylor raised the defense during direct examination that he was at another location at the time of the burglary. Once that door was opened, Taylor's whereabouts on the day of the burglary, specifically his claim that he was at the Somerset Holiday Inn, were relevant and within the scope of cross-examination. See KRE 611(b).
Kentucky Rules of Evidence.
Third, Taylor claims that the prosecution's cross-examination of Vicki McGinnis, his paramour's mother, was improper because the Commonwealth pressured her for details surrounding the stay at the Somerset Holiday Inn and because the prosecution characterized certain portions of McGinnis' testimony as untruthful. Again, questioning regarding McGinnis' testimony on direct examination is appropriate during cross-examination, so the fact that Taylor put McGinnis on the stand to testify that he had been at the Holiday Inn at the time of the burglary opened her to further questioning on the subject during cross- examination. As for the prosecution characterizing McGinnis' testimony as lying, the prosecution was not characterizing McGinnis' testimony as generally untruthful; McGinnis expressly admitted to lying to Deputy Weddle concerning her daughter's whereabouts during Deputy Weddle's investigation. Even if such questioning is inappropriate under Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997), we find the questioning to be harmless error. RCr 9.24. We do not believe Taylor's substantial rights were affected by the Commonwealth's asking McGinnis if she had lied to Deputy Weddle about an issue separate from Taylor's whereabouts on the day of the burglary, and such questioning certainly did not result in a manifest injustice.
Finally, Taylor claims that the trial court erred by imposing court costs on him as an indigent defendant when he will be unable to pay in the near term. However, this court is unable to address this issue. At final sentencing on November 3, 2014, the trial court levied $155 in court costs to be paid within six months and set a show cause hearing date of April 13, 2015. Taylor's notice of appeal was filed on November 3, 2014. Thus, the record certified to this court does not reflect a decision regarding whether Taylor as an indigent defendant may be able to pay court costs in the near term, and the issue is therefore not properly before this court.
Taylor filed a motion with this court to supplement the record with video records on February 11, 2015, but he has not filed any additional motion to supplement following the trial court's determination of his ability to pay. Thus, we are unable to review any decision on this matter. --------
V. Conclusion
For the foregoing reasons, the judgment of the Casey Circuit Court is affirmed.
CLAYTON, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky