Opinion
No. 110,227.
2014-10-10
STATE of Kansas, Appellee, v. Rokhaun McCOY, Appellant.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rokhaun McCoy appeals his jury convictions of possession of cocaine and no drug tax stamp, claiming (1) the district court erred by not giving an eyewitness identification jury instruction, (2) the prosecutor committed prosecutorial misconduct during closing arguments, and (3) cumulative errors entitle him to a new trial. Because we find no error, we affirm McCoy's convictions.
Facts
In the afternoon of December 2, 2011, McCoy, Ricardo Rivera, and Darnell Presley were walking south down Adams street in Junction City, Kansas. As Junction City Police Officer Alvin Babcock drove past them in his unmarked police vehicle, he recognized Presley and believed there was a warrant for Presley's arrest. After confirming Presley's warrant, Babcock requested a marked police unit come to his location.
In response to Babcock's request for backup, Officer R.J. Landreville arrived at the scene and parked about 20 feet behind where the three men were walking in case Presley decided to run away. At that time, Presley, Rivera, and McCoy were walking three abreast on the sidewalk on the west side of the street. Presley was on the outside closest to the street, Rivers was in the middle, and McCoy was on the side farthest from the street. After Landreville was in position, Babcock parked his car, called Presley to him, and placed Presley under arrest.
While Babcock was securing Presley, he saw Landreville remove his taser, follow McCoy, and ultimately arrest him. Babcock did not know why Landreville was arresting McCoy because he had been focused on Presley and had not seen anything. Landreville testified that while Presley was walking towards Babcock, Landreville saw the man on the far west side of the sidewalk, later identified as McCoy, reach down and then throw a clear plastic baggy on the ground on the west side of the sidewalk. Landreville was about 8 to 10 feet behind McCoy and Rivera who stood facing away from him. Landreville walked past the baggy and saw a white powdered substance in it. Suspecting it might be cocaine, he detained and then arrested McCoy.
After Landreville explained to Babcock what happened, Babcock picked up the baggy with the white powdered substance. He testified the baggy was within a foot of the sidewalk and did not have dirt on it or appear weathered. At trial, Landreville identified McCoy as the individual who tossed the baggy to the ground. Testing revealed the white powder was cocaine, and no fingerprints were found on the baggy.
Rivera testified for the defense. He claimed he was walking in front of McCoy and Presley as they all walked down the street. Rivera testified he did not know who had tossed the baggy containing drugs but denied that it was him or McCoy. Rivera claimed he would have known if McCoy had drugs because he had been with him all day.
McCoy chose to testify and stated he and Presley were walking side-by-side with Rivera behind them when Babcock initially drove by and spotted Presley. McCoy claimed that when Babcock pulled up, Presley took the baggy of cocaine out of his sock and then threw the baggy to the west behind McCoy before Babcock called to Presley. On cross-examination, the State clarified McCoy claimed Presley had retrieved the baggy of cocaine from his sock; held onto it while he, McCoy, and Rivera continued to walk about four blocks; and then threw it on the ground after Babcock called out to him. McCoy reiterated Rivera was behind Presley and him when Presley threw the baggy, but McCoy also said Rivera was in front of them “by the time the police came and arrested [them.]”
The defense also called Special Investigator Kimberly Teesdale, of the Public Defender's Office, who interviewed Rivera about what happened. She testified Rivera told her Presley had thrown the baggy, and McCoy did not use cocaine. In rebuttal, the State recalled Babcock and Landreville, who both restated they each observed Rivera, McCoy, and Presley walking three abreast on the sidewalk and at no time did either officer see Rivera either behind or in front of McCoy and Presley. The officers also testified they never saw Presley make a throwing gesture.
In its closing arguments, the State asserted the case boiled down to credibility and which witnesses the jury believed. McCoy's counsel challenged the police officers' testimony by arguing they were mistaken, did not have the best angle to see what happened, and may have mistaken Presley's hand for McCoy's hand. He emphasized Presley was the one who possessed and then threw the drugs on the ground, not McCoy. The jury found McCoy guilty of possession of cocaine and no drug tax stamp. The district court sentenced McCoy to 18 months of probation and drug treatment, with an underlying sentence of 13 months in prison.
McCoy timely appeals.
Was it Clear Error for the District Court Not to Give an Eyewitness Identification Jury Instruction?
McCoy argues the district court erred by failing to give an eyewitness identification jury instruction. He claims the instruction was required because Landreville's identification of McCoy was a key part of the prosecutor's case and there was a serious question about the reliability of that identification. The State argues the main issue in the case was witness credibility; therefore, the eyewitness identification instruction was inapplicable and the district court was correct in not giving it.
During the trial, defense counsel neither requested an eyewitness identification jury instruction nor objected to the instructions given by the district court. Generally, failing to object would prevent appellate review under K.S.A.2013 Supp. 22–3414(3); however, K.S.A.2013 Supp. 22–3414(3) allows appellate review if the giving or failure to give an instruction was clearly erroneous.
“When a party fails to object to or request a jury instruction at trial, review on appeal is limited to determining whether the instruction was clearly erroneous. K.S.A. 22–3414(3); see State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). The application of this standard consists of two parts. ‘First, “the reviewing court must ... determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ “ 296 Kan. at 1121, 299 P.3d 292 (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 [2012] ).
“ ‘If error is found, then the second part is considered, i.e ., the clearly erroneous analysis moves to a reversibility inquiry and
“the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.' “ 296 Kan. at 1121, 299 P.3d 292 (quoting Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195).” State v. Brown, 300 Kan. ––––, ––––, 331 P.3d 781, 792 (August 15, 2014).
PIK Crim. 4th 51.110 is the eyewitness identification instruction at issue, which states:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
The Notes on Use accompanying PIK Crim. 4th 51.110 indicate:
“This instruction should be given whenever the trial judge believes there is any serious question about the reliability of eyewitness identification testimony. State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987). However, unless there is evidence which causes the trial court to question the reliability of the eyewitness identification, this instruction should not be given. State v. Harris, 266 Kan. 270, 278, 970 P.2d 519 (1998).”
First, we must determine if the giving of an eyewitness identification instruction would have been both legally and factually appropriate at McCoy's trial. See Brown, 300 Kan. ––––, Syl. ¶ 2 (330 P.3d 781). McCoy relies on State v. Duong, 292 Kan. 824, 257 P.3d 309 (2011), in which our Supreme Court considered five factors, as set out in State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001), to determine whether there was a question about the reliability of the eyewitness identification. If there was no question about the reliability of the eyewitness identification, then the eyewitness identification instruction was not legally and factually appropriate and the failure to give the instruction was not clearly erroneous.
The Saenz factors used in Duong were:
“ ‘(1) the opportunity of the witness to view the defendant at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior descriptions of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.’ “ 292 Kan. at 836, 257 P.3d 309 (quoting Saenz, 271 Kan. at 354, 22 P.3d 151).
McCoy claims Landreville merely viewed him from behind and under highly stressful circumstances. Landreville did approach McCoy from behind. During the trial, neither the State nor the defense questioned Landreville regarding his state of mind or if he considered the situation “highly stressful.” The State accurately argued Landreville saw McCoy toss the baggy in broad daylight from no more than 10 feet behind him. Landreville additionally testified there was nothing obstructing his view of the defendant. McCoy admits Landreville's attention was probably focused on the situation, but he could have mistaken McCoy for Presley since they were standing close together. There was conflicting testimony presented whether Presley was walking away from McCoy and towards Babcock at the time Landreville witnessed the throwing of the baggy or whether McCoy and Presley were still beside each other. After seeing McCoy toss the baggy, Landreville immediately approached and arrested McCoy. He never lost sight of McCoy or later had to reidentify him before arresting McCoy.
Based on the evidence, we conclude the district court was correct in not finding there was a serious question about the reliability of Landreville's identification of McCoy. The evidence established McCoy was present, standing with Presley and Rivera when one of them tossed a baggy of cocaine to the ground. The jury was faced with the task of evaluating the credibility of witnesses and choosing between the differing versions of the events, not whether McCoy was at the scene and a suspect for possession of cocaine. Therefore, it was not clearly erroneous for the district court not to give the eyewitness identification jury instruction.
Did the Prosecutor Commit Prosecutorial Misconduct During Closing Arguments?
McCoy claims the State committed prosecutorial misconduct during closing arguments by commenting on the credibility of Landreville's testimony. The State argues the prosecutor appropriately responded to the defense attorney's closing argument by pointing out the lack of evidentiary support for his argument.
A claim of prosecutorial misconduct based on comments made during closing arguments that are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at trial. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied ––– U.S. ––––, 133 S.Ct. 529, 184 L.Ed.2d 345 (2012). Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury during closing arguments requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. If misconduct is found, then the appellate court must determine “whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.” State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
During the State's rebuttal closing argument, the prosecutor stated:
“The defense is also claiming well, Officer Landreville, perhaps he didn't see what he testified he saw because it was a stressful situation.
“We have a seasoned police officer that is just going to approach three people to arrest one on a warrant. Was there any evidence that this was anything out of the ordinary? That there was some mass chaos, stressful. Oh, my, God, people screaming, a shoot out, nothing. This is what these guys do day in and day out. They arrest people all the time. And all of a sudden this was a stressful case. There was no evidence of that.”
Generally, prosecutors have wide latitude to argue reasonable inferences that may be drawn from the evidence. State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). However, an attempt to shift the burden of proof to the defendant is improper. State v. Wilson, 295 Kan. 605, 624, 289 P.3d 1082 (2012). A prosecutor's comments about the weakness of the defense are within the wide latitude allowed in discussing the evidence, 295 Kan. at 624–25, 289 P.3d 1082, including comments about the lack of evidence as long as the jury is properly instructed on the prosecution's burden of proof. State v. Cosby, 293 Kan. 121, 136, 262 P.3d 285 (2011). Our court has held that asking the jury to make inferences about the lack of evidence is a permissible tactic and not an attempt to shift the burden to the defendant. State v. Bedell, 36 Kan.App.2d 870, 875–76, 146 P.3d 1096 (2006) (finding permissible prosecutor's argument there was no evidence to support defense that cocaine was for personal use), rev. denied 283 Kan. 932 (2007).
The defense challenged Landreville's testimony by claiming he may not have really seen what he thought he saw because he was in a stressful situation. However, as we have discussed, neither the State nor the defense actually offered evidence that it was a stressful situation for either officer. The jury was instructed that the State had the burden to prove the defendant guilty, and the defendant was not required to prove he was not guilty. Pointing out the weakness in the defense's argument was done within the wide latitude allowed prosecutors and was not prosecutorial misconduct.
Do Cumulative Errors Entitle McCoy to a New Trial?
Finally, McCoy argues that even if the issues above do not individually rise to the level of reversible error, his convictions should be reversed anyway because the cumulative effect of the errors substantially prejudiced him and deprived him of his right to receive a fair trial. However, it is well settled that “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because we find no error by the district court and no prosecutorial misconduct, we cannot find cumulative error.
Affirmed.