264 Kan. 177
(955 P2d 1276)
No. 77,966
STATE OF KANSAS, Appellee, v. JEROME EDWARDS, Appellant.
SYLLABUS BY THE COURT
1. Where a photographic lineup procedure is challenged on the grounds that it is impermissibly suggestive, this court must analyze the totality of the circumstances to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification.
2. An eyewitness identification due process determination is a mixed question of law and fact, and our review is de novo.
3. A defendant must object to photographic lineups at trial in order to preserve that issue for appeal. The failure to object to an in-court identification may be considered to be a defense strategy where the defendant elects to explore the circumstances of the pretrial identification in the presence of the jury by cross-examination.
4. In-court identifications are capable of standing on their own even if preceded by deficient pretrial confrontations. The question is whether the in-court identifications are reliable.
5. In order to test the reliability of a courtroom identification, the factors to be considered are (1) the opportunity of the witness to view the accused at the time of the crime, (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the accused, (4) the level of certainty displayed by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.
6. In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court set out a framework designed to prevent the discriminatory exclusion of jurors on the basis of race. Under the Batson framework, the defendant must first make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror. The trial court must then determine whether the defendant has carried his or her burden of proving purposeful discrimination.
7. Where a defendant's challenge to jury selection is to race, the defendant must first show that the prosecution has exercised peremptory challenges to remove from the venire members of a certain race. Where a defendant fails to establish that the venire member peremptorily challenged is of a certain race, the first crucial requirement of the Batson analysis of a prima facie case of racial discrimination fails. Thus, the claim of racial discrimination fails.
8. It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence. Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). A Doyle violation occurs when the State attempts to impeach a defendant's credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers, but instead invoked his or her constitutional right to remain silent.
9. Where a Doyle violation has occurred, on appeal, the crucial question is whether the violation was so prejudicial as to require a new trial. This question is measured by the constitutional standard of harmless error, which is based on a belief beyond a reasonable doubt that the error did not contribute to the verdict. The factors to be considered in determining the issue are the nature and extent of the comment in comparison with the strength of the evidence of the defendant's guilt, as well as whether the evidence was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify.
10. K.S.A. 22-3420(3) requires that once a jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is absent voluntarily.
11. A defendant has the constitutional right to be present at all critical stages of the trial. This right is codified in Kansas in K.S.A. 22-3405(1). In determining whether a proceeding is a critical stage, this court must examine whether the defendant's presence is essential to a fair and just determination of a substantial issue.
12. A defendant's absence during a critical stage of the proceedings does not require reversal if the error can be deemed harmless. An error of this type may not be held to be harmless unless the appellate court is willing to declare a belief that the error had little, if any, likelihood of changing the result of the trial.
13. A defendant may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal.
14. Res gestae deals with the admissibility of evidence of acts done, as well as declarations made, before, during, or after the occurrence of the principal event. These acts or declarations are admissible as part of the res gestae where they are so closely connected with the principal occurrence as to form in reality a part of the occurrence.
15. Res gestae includes those circumstances or acts which are automatic and undesigned incidents of the particular litigated act and which may be separated from the particular act by lapse of time, but are illustrative of that act. Res gestae is the whole of the transaction under investigation or being litigated. Acts or declarations within the whole of the transaction may be admissible as part of the res gestae to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
16. Acts done or declarations made as part of the res gestae are not admitted into evidence without limitation but are governed by the procedural rules and rules of evidence set out in Article 4, chapter 60, of the Kansas Statutes Annotated. Wide latitude is given to the district court in determining whether evidence constitutes part of the res gestae.
17. Evidence which has relevance in proving the crime at issue is admissible independent of K.S.A. 60-455, even if it discloses another or independent offense. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact.
Appeal from Shawnee district court, JAMES P. BUCHELE, judge. Opinion filed March 6, 1998. Affirmed and remanded with instructions.
Mary Prewitt, assistant appellate defender, argued the cause, and Wendy L. Rhyne Slayton, special appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the brief for appellant.
Tony W. Rues, assistant district attorney, argued the cause, and Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Jerome Edwards appeals his convictions for first-degree murder, aggravated robbery, and conspiracy to possess hallucinogenic drugs with intent to sell. He contends that the photographic lineup used to identify him was unconstitutionally suggestive, the district court erred in allowing the State to strike a black juror from the jury panel, the district court erred in allowing the admission of evidence of his post-Miranda silence, the district court erred in formulating a prejudicial response to the jury's question without his presence, the district court erred in admitting evidence of prior bad acts, and the journal entry of sentencing lists an incorrect statute number for an offense for which he was convicted. We affirm.
The events in this case concern the February 19, 1996, murder and robbery of Donnie Smart, a small-time dealer of marijuana, in Topeka. The defendant was charged with felony murder; conspiracy to possess with intent to sell, deliver, or distribute, offer for sale, or sell a hallucinogenic drug; and aggravated robbery in connection with the incident. Prior to trial, the defendant moved to suppress a photographic lineup identification. After a full hearing, the trial court denied his motion.
The State called 19-year-old Larry Huggins, Jr., who testified that he was walking down the street on the day of the killing when he was approached by two individuals, one of whom he identified as the defendant. Huggins had met the defendant previously. Huggins identified the other person with the defendant only as Shawn.
According to Huggins, the defendant and Shawn wanted to purchase two quarter-pound bags of marijuana. Huggins mentioned that he had previously purchased marijuana from Smart. Huggins stated that Smart was not a "big-time" dealer but was known to sell marijuana occasionally. Huggins was to receive a half-ounce of marijuana for arranging the deal.
Huggins testified that the group drove in his cousin's blue Ford Escort to Smart's house because Smart would know the car. They parked in front of what he thought was Smart's house and saw Smart walking down the steps of an apartment building nearby. Smart and his family were in the process of moving from the house to the apartment building on that day. Huggins told Smart about the group's desire to purchase the marijuana, and Smart told them to come back in a couple of hours. They left, and while driving around, the defendant and Shawn asked Huggins if Smart was "somebody we could lick." Huggins felt that they were asking whether Smart would be a good person to rob.
The group returned to Smart's apartment 2 hours later. When they arrived, the defendant and Shawn went to the door. Huggins testified that both the defendant and Shawn were armed. Huggins saw Smart's wife, Heather, open the door. The defendant and Shawn then returned to the car and told Huggins that Heather had told them to come back later.
Huggins testified that when the group came back for the third time, both the defendant and Shawn were again carrying guns. According to Huggins, the defendant was carrying a blue steel .38 caliber pistol while Shawn was armed with a chrome 9 mm. pistol. Huggins testified that the defendant was wearing a starter jacket and black pants while Shawn was wearing a hooded sweatshirt. Huggins watched them walk up, knock on the door, and then go in the apartment. After approximately 5 minutes, he heard two gunshots. Huggins started the car and was going to leave when he saw the defendant and Shawn running out of the apartment. They jumped into the car and Huggins drove off.
The defendant told Huggins that Smart was drunk and had come after them so they had to shoot him. The defendant said that when they weighed the marijuana, the defendant had tried to grab it. Smart charged him, and the defendant shot into the floor once and then shot Smart in the shoulder. Huggins testified that he dropped the defendant off at his car and then went home.
Huggins admitted that he had not identified the defendant in a photographic lineup. He stated that he recognized the picture of the defendant but lied to the police and only told them the truth after he was threatened with a murder charge. Huggins stated that he was charged with conspiracy and aggravated robbery and that in return for his testimony, he would avoid being charged with murder.
Heather testified that on the day of the murder, she had been moving things in the apartment when she heard her husband whistle. He then came into the house and told her that some persons had wanted to buy a half-pound of marijuana. Heather testified that her husband used marijuana and sometimes sold small amounts. However, she was scared when she heard that someone wanted a half-pound because Smart had never sold that large an amount before. She stated that Smart reassured her by telling her that "Big Larry" (Huggins) was involved and that he had known him for awhile.
Heather testified that Smart and two friends, Raymond Slater and Jeremy Brown, left to purchase the marijuana. Heather stated that she was sick to her stomach because she was nervous, and she went to lie down with the couple's baby. She then heard a knock on the door. When she answered the door, a black male she identified as the defendant was there, asking for Smart. She told the defendant that Smart was not home but that he would be back within the hour. The defendant told her that he and his companions would return at 7:15 p.m.
Smart, Slater, and Brown came back to the apartment. Smart began weighing the marijuana. Just after 7:15, the group decided that the defendant and his companions were not coming back and began dividing the marijuana among themselves. They rolled one joint and took turns smoking it. Heather testified that she went into the kitchen and when she came back out, the front door was partially open. The defendant and another person were standing just outside. Smart told her to let them in and she did.
According to Heather, Smart approached the defendant and the other person and said, "What's up?" She believed that Smart seemed to recognize the defendant. Smart, the defendant, and the other person then went into the back of the apartment. She sat in the living room. After awhile, she heard Smart raise his voice, and Slater went back to check on the situation. Shortly thereafter, the defendant came around the corner with a silver gun in his hand shouting, "Nobody move, or I'll shoot." The defendant then turned back, and the other person came into the living room followed closely by Smart and Slater. There was pushing and shoving. Heather testified that as they came past her, Smart tossed a bag of marijuana to her, which she threw over her shoulder into the kitchen.
A struggle ensued at the door of the apartment. Smart had his arms around the defendant's waist and was ramming his shoulder into the defendant when the defendant fired his gun. There was more scuffling, and the defendant fired again. Smart slumped to his knees. Heather ran to the telephone, dialed 911, and then ran back and unsuccessfully tried to resuscitate Smart.
When first questioned by the police, Heather did not mention the marijuana. However, when she found out that Smart had died, she told the police everything that had happened.
Heather told the police that the person with the gun was about 5'9", with cornrows in his hair, and wearing a light-colored tan or white starter jacket. She described the other person to police as wearing a gray fleece sweatshirt. However, Heather testified that when she saw the defendant's picture in the photographic lineup, she realized that she had made a mistake and that the person in the gray fleece sweatshirt, not the person with cornrows, had been the shooter. Heather stated that she looked at between 600 and 1,000 pictures in an effort to identify the shooter. However, she testified that at the moment she saw the defendant's face in the photograph, she realized he was the shooter. Heather said that "[w]hen you see your husband shot and killed in front of you and you see a face, you remember that face for the rest of your life." At trial, Heather also identified the defendant as the person who shot Smart.
Raymond Slater, a friend of Smart's who was present during the shooting, also testified. In court, he identified the defendant as the person who shot Smart. Slater stated that when the defendant and the other person arrived to purchase the marijuana, Smart motioned them into the bathroom to take care of the deal. Slater testified that the other person went into the bathroom while the defendant stayed just outside the bathroom door. Later, Slater heard Smart raise his voice and knew something was wrong. Slater went back to the bathroom to check on the situation, and he and the defendant glared at each other for approximately 5 to 10 minutes. Slater testified that while he and the defendant were staring at each other, Smart and the other person were arguing over the weight of the marijuana.
The defendant then moved into the bathroom, so Slater also went in. Slater testified that the defendant stepped around the corner, then stepped back holding a gun. According to Slater, the defendant stated, "Give us the fucking dope or else I'm going to shoot you!" Smart and the other person both grabbed for the marijuana. Slater moved in to join the scuffle, but the defendant said, "You make one more move and I'll blow your head off." The other person ran out of the bathroom followed by the defendant, Smart, and Slater. Slater testified that Smart grabbed the defendant and tried to drag him to the ground. Smart grabbed the defendant by the waist and slammed him against the door. Slater testified that he heard two shots. He swung a beer bottle at the defendant and saw Smart slump to the ground. The defendant ran out the door.
Slater stated that he ran out the door after the assailants, but someone pointed a gun at him and he backed away. He testified that the assailants got into a tan or cream-colored compact car like a Volkswagen Rabbit and drove away. He followed them to a nearby grocery store parking lot and called police from there.
Slater testified that he told police that the person he later identified as the defendant was 5'7" tall and that the other person was 6'2" or so with cornrows in his hair. Slater stated that he looked at hundreds of pictures of suspects on three occasions and when he saw the defendant's picture, he was sure the defendant was the shooter.
On cross-examination, Slater admitted that on the day of the murder he had been drinking all day but stated that he was not affected by it. Slater testified that he had been with Smart when the defendant and others drove up the first time to talk about purchasing marijuana. He stated that the defendant and the others had been in a four-door Mercury with tinted windows. When shown a picture of a car belonging to the defendant's girlfriend, he stated that it was not the car he had seen at that time. On redirect, he stated that although he wanted to see Smart's killer brought to justice, he would not want to falsely accuse anyone of a crime because he himself had been falsely accused and he knew how it felt.
Jeremy Brown, another person present at the shooting, also testified. Brown's testimony was generally consistent with that of Slater and Heather. He testified that one of the assailants was 5'7" and about 160-65 pounds and dressed in a hooded sweatshirt. The other assailant was 6'1" and heavyset, possibly 250 pounds. Contrary to the testimony of Slater, Brown testified that the assailants escaped in a blue Ford Escort. Brown testified that this was the same Escort he had seen Huggins exit from earlier in the day.
Jeremy stated that when questioned by police, he told them that he did not know who the shooter was but if he could talk to Slater or Heather, they might be able to come up with a name. He stated that he was unable to identify the defendant as the shooter in a photographic lineup.
Kevin Igercic, another friend of Smart's who was present that evening, also testified. Igercic stated that he had been sitting in Smart's apartment waiting for his mother to pick him up when one of the people talking to Smart in the back of the apartment pulled a gun. Igercic stated that Smart and the shooter were in the living room headed for the door when the first gunshot went off. Smart tried to grab the shooter and another shot went off. After the second shot Smart said, "Kevin, dial 911" and fell over. Igercic described the shooter as being 6'1" tall and the other person as 6'4", based on his estimation of Smart's height at 5'9." Smart was actually slightly over 5'6" in height.
Igercic testified that he could not identify anyone in the lineup shown to him. He stated that at one point, he might have told police that the shooter had on an Oakland Raiders starter jacket.
According to Shawnee County Coroner Dr. George E. Thomas, Smart died as the result of a gunshot wound which entered into his left arm on a downward angle as if the arm was held above the body. The bullet then continued through the arm and into the body, fracturing a rib and penetrating the left lung, pulmonary artery, aorta, right lung, diaphragm, liver, and right kidney. Stippling on the wound indicated that the shot was fired from close range. A second gunshot wound on the left shoulder was not a factor in Smart's death.
David A. Smith, an officer with the Topeka Police Department, testified that he was called to the shooting scene, where he recovered drug paraphernalia and marijuana from the bathroom. He also recovered two .38 caliber shell casings from the living room area.
Robert Cilwa, a KBI firearms expert, testified concerning the shell casings. Cilwa testified that the cartridges found on the scene were .38 caliber. He noted that while it was possible for .38 caliber shells to be fired from a 9 mm pistol, he did not think, based on the condition of the cartridges, that these cartridges had been fired from a 9 mm pistol.
The State also called a witness who testified that she was a prostitute who habitually worked in the neighborhood where the shooting took place. She stated that on the night of the shooting, she saw a blue Ford Escort heading down the street near Smart's apartment and saw two men exit the vehicle and go up the stairs to the apartment. However, at trial, she stated that the defendant was not one of those persons.
Detective Mike McAtee of the Lawrence Police Department stated that he went to the restaurant where Tina Ostrander, the defendant's girlfriend worked to see if the defendant was there. McAtee testified that he saw a red Toyota which belonged to Ostrander, but she was not at work. He learned that the defendant and Ostrander were at her apartment, and he and several other officers went to that apartment. McAtee stated that there was a smell of marijuana coming from the apartment. McAtee testified that he and several officers entered the apartment and placed the defendant in custody. A search of the apartment revealed drug paraphernalia and marijuana as well as a gray hooded sweatshirt.
Prior to the State's calling of witnesses to testify regarding the arrest of the defendant, the defendant renewed his objection to any discussion regarding the fact that marijuana was found at the place where the defendant was residing. The district court overruled the objection.
Cindy Patterson, a KBI forensic chemist, testified concerning both the marijuana found in the defendant's apartment and the marijuana found at the scene of the shooting. She confirmed that both substances found were marijuana but stated that it was impossible to tell whether they came from the same batch of marijuana.
Detective McAtee also testified concerning certain field notes he had taken during an interview he conducted with Ostrander. Ostrander stated that the defendant and a man named William Burton Clay often talked to her about "ripping people off for weed." She also told him that on the night of the murder, the defendant was out of town late into the night and when he returned he told her that he had "jacked" some people.
The State called Ostrander to the stand. She testified that on the day of the shooting the defendant was fixing her car. She stated that she saw him in Lawrence between 8 and 8:30 p.m. on the evening of the shooting
Thomas Young, a detective with the Topeka Police Department, also testified on behalf of the State. Young stated that he worked on the investigation of the shooting and that he went to Lawrence with several other officers to apprehend the defendant. Young questioned the defendant after his arrest. Young testified that the defendant answered biographical questions but, when read his rights, stated that he did not want to talk further and wanted an attorney. At this point, the defendant objected on the grounds that it was impermissible to comment on his post-Miranda silence. The court asked whether the defendant would like a cautionary instruction, and the defendant declined.
Young testified that as he was preparing to leave the room, the defendant stated that he wanted to talk again. As Young was informing the defendant about the crime, the defendant asked, "Who says I killed whitey?" Young felt that this utterance was significant because he had not yet told the defendant that the victim was Caucasian. Young testified that the defendant first stated that he could not remember where he had been on the night of the murder. Later, the defendant told Young that he had been with his girlfriend all day and night. Finally, he told Young that he had been mistaken and that he had worked on the day in question.
The State also called Sergeant Ron Brown of the Topeka Police Department. Brown testified that he assisted the Lawrence police in apprehending the defendant. Brown stated that when the defendant was first arrested, the defendant stated, "What do you guys got me for? What? Did I rob someone? What? Did I kill someone?"
During jury deliberations, the jury sent a note to the court asking for a read back of the testimony of "Detective Young . . . or, ?" regarding the presentation of the photographic lineup to Slater. During an earlier question from the jury, the defendant was not present when the reply was being discussed. However, the defendant's attorney agreed that the defendant's presence was not necessary. Likewise, the defendant was not present when the answer to this jury question was discussed. The court called the jury in, and Young's testimony was read to the jury. The court then asked the jury if there was any other testimony that it wished to have read back. The jury indicated that it did not wish a further read back.
The defendant was found guilty of felony first-degree murder, conspiracy to possess with intent to sell hallucinogenic drugs, and aggravated robbery. He was sentenced to a controlling term of life plus 58 months in prison.
PHOTOGRAPHIC LINEUP
The defendant contends that the photographic lineup used to identify him was unconstitutionally suggestive and tainted the in-court identifications made by Heather Smart and Raymond Slater. Where a photographic lineup procedure is challenged on the grounds that it is impermissibly suggestive, this court must analyze the totality of the circumstances to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. State v. Ponds, 227 Kan. 627, 629, 608 P.2d 946 (1980).
Before examining the totality of circumstances concerning the photographic lineup, we must consider the State's contention that the defendant waived his claim by failing to object at trial. A defendant must object to photographic lineups at trial in order to preserve that issue for appeal. See State v. Hatch & Smith, 223 Kan. 783, 787, 576 P.2d 687 (1978); see also State v. Sanders, 202 Kan. 551, 553, 451 P.2d 148 (1969) (relating to objections to the admissibility of in-court identification tainted by pretrial identification). In Sanders, this court noted that the failure to object to an in-court identification may be considered to be a defense strategy where the defendant elects to explore the circumstances of the pretrial identification in the presence of the jury by cross-examination. 202 Kan. at 553.
In this case, although the defendant filed a motion to suppress evidence of the photographic lineup, at trial he failed to object to either the testimony of Slater or Heather concerning their identification of the defendant from such a lineup. He also failed to object to testimony by Detectives Danny Hay and Thomas Young on the same issue. Further, the defendant failed to object to the in-court identifications made by Slater and Heather. Instead, the defendant chose to attack the circumstances surrounding the photographic lineup and identification in front of the jury through the cross-examination of Slater and the detectives. Under these circumstances, the defendant failed to preserve his objections concerning the photographic lineup.
Even if we were to examine the lineup and conclude that the lineup was unduly suggestive, the defendant would not be entitled to a new trial so long as a substantial likelihood of misidentification does not exist. See State v. Skelton, 247 Kan. 34, 40, 795 P.2d 349 (1990). In-court identifications are capable of standing on their own even if preceded by deficient pretrial confrontations. State v. Ponds, 227 Kan. at 630. The question is whether the in-court identifications are reliable. 227 Kan. at 630.
In order to test the reliability of courtroom identification, the factors to be considered are (1) the opportunity of the witness to view the accused at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the accused, (4) the level of certainty displayed by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); State v. Baker, 227 Kan. 377, 379, 607 P.2d 61 (1980). An eyewitness identification due process determination is a mixed question of law and fact, and our review is de novo. State v. Mack, 255 Kan. 21, 26, 871 P.2d 1265 (1994).
(1) Opportunity to view the accused at the time of the crime
Both Heather Smart and Raymond Slater had ample opportunity to view the shooter. Heather indicated that the shooter had earlier come to the door looking for her husband. Later, she saw the shooter standing in the hall and let him in the apartment. She then observed the shooter when he brandished the gun and ordered her not to move, and also observed the shooter during the scuffle with Smart. In the same manner, Slater not only saw the shooter when he entered the house, but he and the shooter spent approximately 5 minutes staring at each other as Smart and the other person argued.
(2) Degree of attention
Both Heather and Slater had ample reason to be attentive to the situation at hand. Slater was involved in carefully watching the defendant as the confrontation escalated. Heather stated that she had been on edge all evening because of the large amount of marijuana involved in the transaction and her fear that something might go wrong with the transaction.
(3) Accuracy of the prior description
The third Biggers factor, the accuracy of the witnesses' prior description, is difficult to assess in this case. Slater described the shooter as being 5'7" to 5'8" tall with short, almost shaved, hair. Heather described the shooter as 5'9" tall with short, almost shaved, hair. However, there is no evidence in the reco