RANDALL REYNOLDS v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 18, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001734-MR
AND
NO. 2003-CA-001341-MR
RANDALL REYNOLDS
APPELLANT
APPEALS FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
INDICTMENT NO. 02-CR-00097
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Following a jury trial, the Graves Circuit Court
entered a judgment convicting Randall Reynolds of second degree
burglary1 and sentencing him to ten years imprisonment.
Thereafter, the trial court denied Reynolds’s CR 60.02 motion for
a new trial based on newly discovered evidence.
1
KRS 511.030.
Reynolds
separately appealed from the judgment and order and these appeals
have been consolidated before this Court.
Finding no error in
either appeal, we affirm.
In his first appeal, Reynolds primarily argues that the
trial court erred by denying his motions for a directed verdict
and for a judgment notwithstanding the verdict.
At trial, the
Commonwealth’s evidence connecting Reynolds with the burglary
hinged on one eyewitness identification of him and several
witnesses’ identification of his truck.
He argues that these
identifications were so unreliable that no reasonable juror could
have found him to be guilty beyond a reasonable doubt.2
But
while the eyewitness testimony in this case was not
overwhelmingly certain, we conclude that it was sufficient
evidence to submit the question of Reynolds’s guilt to the jury.
During the morning of January 24, 2002, two men
burglarized the home of Terry and Connie Jackson in Mayfield,
Kentucky.
On the morning of the burglary, Patsy Nall, Terry
Jackson’s mother, was driving her two grandchildren to school.
As she passed by the home she saw an unfamiliar pickup truck
parked in front of the house.
As she slowed her car to get a
better look, they saw two men come out of the house carrying
items.
Nall told twelve-year old Lynnsey to try to get a look at
2
See Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991);
citing Commonwealth v. Sawhill, 660 S.W.2d 3, 4 (Ky. 1983).
2
the truck’s license plate, and she told eight-year old Nathan to
try to remember the men’s appearances.
When the two men realized
that they were being watched, they dropped the items, got into
the pickup truck and sped away.
Kentucky State Trooper James Mills responded to Nall’s
report of the burglary.
Nall told Trooper Mills that she did not
get a good look at the two men.
Both Nathan and Lynnsey recalled
that one of the men was tall and skinny and the other man was
short and stocky.
Lynnsey noted that the taller man appeared to
be older and Nathan remembered that the taller man had a
mustache.
caps.
All three stated that the men were wearing dark sock
In addition, Nall, Nathan, and Lynnsey each reported that
the pickup truck was a white, older-model Chevrolet and had a
black bumper.
Nathan also observed that the truck had three
black tires and one tire which was silver or white.
Lynnsey
remembered that the truck had a Kentucky license plate beginning
with the number 9 and the second number being either 2 or 5.
After taking the report, Trooper Mills checked records
of all pick up trucks with licenses beginning with 95.
Mills
identified Reynolds’s truck as a possible match and then drove to
Reynolds’s house.
After confirming that the pickup truck matched
the descriptions, he asked Nall to come look at the vehicle.
She
positively identified the pickup truck as being the truck at the
burglary scene.
Trooper Mills then obtained a warrant to search
3
Reynolds’s house, but no evidence was found in that search.
A
search of Reynolds’s truck also produced no evidence.
Subsequently, Nathan identified Reynolds from a photo lineup, but
Nall and Lynnsey were unable to positively identify Reynolds.
The second man involved in the burglary was never identified.
Prior to trial, Reynolds moved to exclude the
eyewitness identifications, arguing that the photo lineup had
been unduly suggestive.
The trial court denied the motion.
On
appeal, Reynolds first argues that the trial court erred by
denying his motions for a directed verdict or for a judgment
notwithstanding the verdict.
Reynolds correctly notes that there
was no physical evidence connecting him with the burglary, and he
further asserts that the eyewitness identification lacked
reliability and was tainted by the suggestive photo lineup and
show-up identification of his truck.
In determining the admissibility of eyewitness
identifications, Kentucky courts have consistently followed the
United States Supreme Court's decision in Neil v. Biggers.3
The
Court in Neil set out a two-prong test under which the court must
3
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). See St.
Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004); Roark v.
Commonwealth, 90 S.W.3d 24, (Ky. 2002); Savage v. Commonwealth,
920 S.W.2d 512, 513 (Ky. 1996); Edmonds v. Commonwealth, 906
S.W.2d 343, 345 (Ky. 1995); Sanders v. Commonwealth, 844 S.W.2d
391, 393 (Ky. 1993); Riley v. Commonwealth, 620 S.W.2d 316, 318
(Ky. 1981); and Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky.
1978).
4
first determine whether the confrontation procedures employed by
the police were suggestive.
Following the suppression hearing,
the trial court found that the photo lineup did not unduly
suggest Reynolds.
Because the photo lineup was not included in
the record on appeal, we cannot say that this finding was clearly
erroneous.
Reynolds further argues that Trooper Mills’s action in
calling Nall to view the truck while Reynolds was sitting in the
back of the police cruiser was also unduly suggestive.
Thus,
Reynolds asserts that Nall’s identification of his truck was
tainted and should have been excluded.
However, the standards
set out in Neil apply to eyewitness identification of persons,
not physical evidence.
Moreover, even if the photo lineup and the show-up
identification of the truck were suggestive, Neil holds that
unnecessary suggestiveness alone does not require exclusion of
the identification.4
Instead, the inquiry is "whether under the
'totality of the circumstances' the identification was reliable
even though the confrontation procedure was suggestive."5
The
Court listed five factors to be considered in evaluating the
likelihood of misidentification:
(1) the opportunity of the
4
Id. at 198-99, 93 S. Ct. at 381-82.
5
Id. at 199, 93 S. Ct. at 382.
5
witness to view the criminal at the time of the crime; (2) the
witness's degree of attention; (3) the accuracy of the witness's
prior description 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.6
Kentucky courts have also considered whether other evidence tends
to corroborate the witness's identification.7
As Reynolds correctly points out, Nathan’s
identification of him was less than perfect and the viewing
conditions were not optimal.
However, Nathan testified that his
attention was focused on the burglars and he got a good look at
them.
Nathan’s pre-lineup description closely matches Reynolds’s
appearance.
Trooper Mills showed Nathan the photo lineup on the
same day as the burglary and Mills testified that Nathan quickly
picked Reynolds’s picture.
Furthermore, all of the witnesses’
descriptions of the truck closely matched Reynolds’s vehicle.
While there were some inconsistencies among the descriptions, we
agree with the trial court that these went only to the weight of
the witnesses’s testimony and not to its admissibility.
Reynolds next argues that the trial court erred by
denying his motion for a mistrial.
6
During the suppression
Id. at 199-200, 93 S. Ct. at 382.
7
See Merriweather v. Commonwealth, 99 S.W.3d 448, 452 (Ky.
2003); Roark v. Commonwealth, 90 S.W.3d 24, 29 (Ky. 2002).
6
hearing, Trooper Mills testified about his investigation leading
to Reynolds.
Mills stated that he remembered that Reynolds’s
truck had been identified as being involved in a prior burglary
in Tennessee, although Reynolds had not been identified.
In a
report, Mills also stated that he had been informed by other law
enforcement agencies that Reynolds had been involved in
burglaries in Illinois.
Prior to trial, Reynolds filed a motion in limine to
exclude any reference to prior uncharged crimes or bad acts.
trial court granted the motion.
The
At trial, Trooper Mills again
testified about his investigation.
After discussing his review
of vehicles with license plates beginning in 95, Trooper Mills
continued, “As I am driving around, I was trying to think of
people in my mind . . . .”
The trial court cut off Trooper Mills
and reminded counsel of the pre-trial order.
Reynolds’s counsel
moved for a mistrial, which the trial court denied.
Reynolds
argues that Trooper Mills’s reference was an impermissible
reference to prior bad acts and uncharged crimes, in violation of
KRE 404(b) and the pre-trial order, and that the trial court
abused its discretion in denying his motion for a mistrial.
We disagree.
A mistrial is justified only when “a
manifest necessity for such an action or an urgent or real
7
necessity" appears in the record.8
It is within the trial
judge's discretion to grant a mistrial, and that decision should
not be disturbed absent an abuse of discretion.9
In this case,
the trial judge properly stepped in before Trooper Mills could
disclose any facts suggesting prior bad acts or uncharged crimes.
Mills’s brief reference to “people” he “had in mind” did not
violate KRE 404(b) or the pre-trial order.
mistrial was not mandated.
Consequently, a
Furthermore, Reynolds’s trial counsel
turned down the trial court’s offer of an admonition to the jury.
In his final argument in the direct appeal, Reynolds
argues that the trial court improperly denied his request to
remove a juror for cause.
During voir dire, a member of the
venire informed the trial court that she had several family
members who work in law enforcement.
the juror for cause.
Reynolds moved to remove
However, the trial court denied the request
and Reynolds subsequently used a peremptory challenge to remove
the juror from the panel.
Reynolds argues that the juror had an
obvious bias in favor of law enforcement and should have been
stricken from the panel for cause.
RCr 9.36 provides that "[w]hen there is reasonable
ground to believe that a prospective juror cannot render a fair
8
Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky. 1985).
9
Clay v. Commonwealth, 867 S.W.2d 200, 204 (Ky.App. 1993).
8
and impartial verdict on the evidence, that juror shall be
excused as not qualified."
The standard of review for a trial
court's decision on a challenge for cause is whether there was an
abuse of discretion.10
In order to find reversible error, the
party alleging bias bears the burden of proving that bias and the
resulting prejudice.11
Reynolds must demonstrate a probability
of bias or prejudice based on the particular facts of the case.
Moreover, we will not presume bias from a relationship except
when it is strictly necessary.12
Unfortunately, the exchange between defense counsel and
the juror is largely inaudible on the videotape, and Reynolds has
not attempted to provide any written transcription of the juror’s
responses.
From our review of the tape, the juror informed
defense counsel that she had several family members who were
employed in law enforcement.
Upon further questioning, the juror
seems to answer that she had never known police officers to make
a significant mistake during an investigation.
10
However, the
Bolen v. Commonwealth, 31 S.W.3d 907, 910 (Ky. 2000).
11
Caldwell v. Commonwealth, 634 S.W.2d 405, 407 (Ky. 1982)
(citing Watson v. Commonwealth, 433 S.W.2d 884 (Ky. 1968)).
12
See Bowling v. Commonwealth, 942 S.W.2d 293, 299 (Ky. 1997)
U.S. cert. denied, 522 U.S. 986, 118 S. Ct. 451, 139 L. Ed. 2d
387 (1997), holding that a person will not be automatically
disqualified even if he or she is a law enforcement officer, has
been a victim of a similar crime, or has some knowledge of the
participants acquaintance with the participants and their
possible testimony.
9
juror cannot be heard to express any inclination to uncritically
accept the testimony of police officers over other witnesses.
Under the circumstances, Reynolds has failed to prove that the
juror was biased or that the trial court abused its discretion in
failing to strike the juror for cause.
In his second appeal, Reynolds argues that the trial
court abused its discretion by denying his motion for a new trial
based on newly discovered evidence.
Approximately eight months
after entry of the final judgment, in June 2003, Reynolds filed a
motion for a new trial pursuant to CR 60.02(b).
In support of
the motion, Reynolds presented an affidavit from George Lewis.
In his affidavit, Lewis stated that he had observed the white
pickup truck parked in Reynolds’s driveway at the time the
burglary was taking place.
The trial court denied the motion
without a hearing.
CR 60.02(b) allows a court to grant a party relief from
a final judgment upon a showing of “newly discovered evidence
which by due diligence could not have been discovered in time to
move for a new trial under Rule 59.05.”
Granting a new trial is
within the discretion of the trial court, and such is disfavored
when the grounds are newly discovered evidence which is merely
cumulative or impeaching in nature.13
13
Newly discovered evidence
Epperson v. Commonwealth, 809 S.W.2d 835 (Ky. 1990).
10
"must be of such decisive value or force that it would with
reasonable certainty, change the verdict or
. . . would probably
change the result if a new trial should be granted."14
Further,
a motion for new trial based upon newly discovered evidence must
be accompanied by an affidavit showing that appellant exercised
sufficient diligence to obtain the evidence prior to his trial.15
The Commonwealth correctly points out that Lewis’s
affidavit gives the wrong date for the incident – he states that
he observed the pickup truck on January 24, 2001, while the
burglary took place on January 24, 2002.
Assuming that the
discrepancy was an inadvertent error and Lewis meant to refer to
the latter date, his affidavit would place the pickup truck away
from the burglary scene.
Reynolds asserts that Lewis’s affidavit
calls into question the witnesses’ identification of his truck.
However, several other witnesses testified at trial that Reynolds
was home at the time.
cumulative.
Thus, Lewis’s testimony would have been
Moreover, the new evidence was not so decisive that
it would probably change the verdict if a new trial were granted.
Furthermore, Reynolds has failed to show that he could
not have obtained Lewis’s testimony prior to trial through the
exercise of due diligence.
Although Lewis did not reveal this
14
Coots v. Commonwealth, 418 S.W.2d 752, 754 (Ky. 1967).
15
Wheeler v. Commonwealth, 395 S.W.2d 569 (Ky. 1965).
11
information until after trial, Lewis stated in the affidavit that
he had spoken to Reynolds about three days after the incident.
Under the circumstances, the trial court could reasonably infer
that Reynolds could have discovered Lewis’s testimony prior to
trial.
Consequently, the trial court did not abuse its
discretion in denying Reynolds’s motion for a new trial.
Accordingly, the judgment of conviction by the Graves
Circuit Court is affirmed.
Furthermore, the order of the Graves
Circuit Court denying Reynolds’s motion for a new trial pursuant
to CR 60.02 is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Clare
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
12
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