BARNES (DARBY ASHEY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 20, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000670-MR
DARBY ASHLEY BARNES
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY BUNNELL, JUDGE
ACTION NO. 09-CR-01031
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
MOORE, JUDGE: Darby Barnes appeals his conviction from the Fayette Circuit
Court in which the jury entered a guilty verdict on one count of second-degree
burglary and found him guilty as a first-degree persistent felony offender. After a
careful review of the record, we affirm.
1
Senior Judge Sheila R. Isaac, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 24, 2009, Kathryn Manning2 arrived at 417 Lakeshore Drive
in Lexington to water plants and feed the cat while the family who resided at that
address was out of town. Before entering the house, Ms. Manning spent some time
outside, watering the plants around the perimeter of the house. As she reached the
back of the house, she heard a noise from the direction of the sliding glass door on
the back of the house. She was standing on the lower steps of the deck several feet
away from the door and saw a man inside the house bending down to remove the
security rod from the sliding door track. She called out to him. When he looked
up and saw her, he dropped the security rod and retreated into the house where Ms.
Manning could no longer see him. Ms. Manning made several telephone calls, one
of which was a call to 911. She then went around to the front of the house. The
front door was open, but Ms. Manning did not see the man again.
When the police arrived, Ms. Manning described the man she saw as
white, 5’9” tall, 160 pounds, approximately 18-22 years old, and wearing blackrimmed glasses. Forensic detectives attempted to take fingerprints from a jewelry
box in the master bedroom that seemed to have been disturbed, but they were only
able to lift a partial print. The next day, on May 25, 2009, Detective Franz Wolff
showed Ms. Manning a six photograph line-up. None of the men in the line-up
wore glasses in the photographs. Ms. Manning did not identify anyone in the lineup as the man she saw at the house.
2
The record is inconsistent regarding the spelling of Ms. Manning’s first name. For purposes of
this opinion, we have adopted the spelling indicated on Ms. Manning’s subpoena.
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On June 16, 2009, Detective Wolff and two other officers were
patrolling the Lakeshore area. They noticed two men talking outside the Lake
Tower apartment complex, adjacent to Lakeshore Drive. Detective Wolff noticed
that one of the men wore dark-rimmed glasses as described by Ms. Manning.
Detective Wolff asked both men for identification. He learned that the man with
the glasses was the appellant, Darby Barnes, and that Barnes lived in the Lake
Tower apartment complex. Detective Wolff arrested Barnes on an outstanding
warrant. At the time and scene of arrest, Detective Wolff took several photographs
of Barnes, including several close photographs of him.
Detective Wolff again presented Ms. Manning with a photograph lineup, this time including Barnes’ photograph, as well as five other photographs of
men wearing glasses. Ms. Manning identified Barnes without hesitation as the
man she had seen at 417 Lakeshore Drive on May 24, 2009.
Barnes was charged with one count of burglary in the second degree
and one count of a persistent felony offender charge. Before trial, Barnes moved
to suppress any testimony concerning an identification of Barnes as the perpetrator
of the burglary, including the results of the photograph line-up and any in-court
identifications. The trial court overruled Barnes’ motion, except to preclude incourt identifications by any witness other than Ms. Manning.
At trial, Ms. Manning testified as to her identification of Barnes in the
photograph line-up and again made an in-court identification of Barnes’
photograph in the same line-up. The Commonwealth then showed her a larger,
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color, 8x10” photograph of Barnes, taken on the same day as the smaller
photograph used in the line-up. Ms. Manning testified that she had seen the larger,
color photograph before. It is unclear from the record exactly when she viewed the
larger photograph. Ms. Manning also identified Barnes by pointing to him in the
courtroom.
The Commonwealth also introduced fingerprint evidence found at the
residence. The Commonwealth’s witness indicated that the fingerprint was not a
“match” to Barnes, and proceeded to explain the process of matching at least ten
“points” of a fingerprint to obtain a true match. Barnes objected to this testimony
on relevance grounds, particularly to the portions of testimony indicating that four
points of the fingerprint matched Barnes’ fingerprint. The trial court overruled
Barnes’ objection and allowed the witness to explain the matching process, without
specifically calling Barnes’ print a “match.”
Ultimately, the jury returned a guilty verdict. Barnes was sentenced
to a maximum term of five years, enhanced to fifteen years for a persistent felony
offender status. Barnes moved for a directed verdict on the persistent felony
offender status, and the trial court overruled the motion.
Barnes now appeals his conviction, claiming he was denied due
process on three grounds: (1) that allowing Ms. Manning’s pretrial and in-court
identifications constituted palpable error under RCr 10.26; (2) that the trial court
abused its discretion in allowing the testimony regarding the four matching
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fingerprint points; and (3) that he was entitled to a directed verdict on the persistent
felony offender enhancement.
II. ANALYSIS
A. APPELLANT SUFFERED NO PALPABLE ERROR OR MANIFEST
INJUSTICE IN THE WITNESS’ PRETRIAL OR IN-COURT
IDENTIFICATIONS.
Kentucky Rule of Criminal Procedure (RCr) 10.26 provides as
follows: “A palpable error which affects the substantial rights of a party may be
considered … by an appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.”
[T]he requirement of “manifest injustice” as used in RCr
10.26 … mean[s] that the error must have prejudiced the
substantial rights of the defendant, … i.e., a substantial
possibility exists that the result of the trial would have
been different….
[The Kentucky Supreme Court has] stated that upon
consideration of the whole case, the reviewing court must
conclude that a substantial possibility exists that the
result would have been different in order to grant relief.
Castle v. Commonwealth, 44 S.W.3d 790, 793-94 (Ky. App. 2000) (internal
quotation marks omitted). Thus, the defendant’s burden to demonstrate palpable
error is high, and he must show more egregious prejudice than he would in
demonstrative reversible error. Grady v. Commonwealth, 325 S.W.3d 333, 355
(Ky. 2010) (citing Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006)).
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The Kentucky Supreme Court has outlined a two-step process in
determining whether identification testimony violates a defendant’s due process
rights. King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004) (citing
Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999) (quoting Thigpen
v. Cory, 804 F.2d 893, 895 (6th Cir. 1986)); see also Simmons v. United States,
390 U.S. 377, 384 (1968). The first inquiry regards the pre-identification
encounter to determine if it was unduly suggestive. King, 142 S.W.3d at 649
(citations omitted). If it was not, then the identification testimony should be
allowed. Id. If, however, the court finds the pre-identification encounter was
unduly suggestive, the second inquiry is whether the identification was
nevertheless reliable under the totality of the circumstances. Id. The second
inquiry involves consideration of five factors articulated by the United States
Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972). Id. Those five factors are:
(1) the witness’ opportunity to view the criminal at the time of the crime; (2) the
witness’ degree of attention; (3) the accuracy of his prior description of the
criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the
time between the crime and the confrontation. Id.; see also Savage v.
Commonwealth, 920 S.W.2d 512, 513-14 (1995) (adopting the Neil factors).
As to the first question, Barnes carries the burden of demonstrating
that the photograph identification materials were unduly suggestive. Grady, 325
S.W.3d at 354. He argues that because Ms. Manning had previously viewed the
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large, color photograph of him some time before her in-court identification, that
viewing bolstered her in-court identification.
While not directly on point with the facts herein, we find the analysis
in Grady, 325 S.W.3d 333, highly instructive. In Grady, materials used for a pretrial lineup were lost before the defendant had an opportunity to scrutinize their
content. The Kentucky Supreme Court decided that under those circumstances it
was necessary to recognize a rebuttable presumption that the materials were unduly
suggestive. Id. at 354.
We believe that the rebuttable presumption in Grady can be extended
to apply to the circumstances presently under review. Here, the record is
incomplete regarding when Ms. Manning viewed the larger, color photograph of
Barnes, and defense counsel informed the court that he was unaware that Ms.
Manning had been shown this photograph. Thus, using the rationale of Grady, we
will indulge in a rebuttable presumption that the larger color photograph of Barnes
was unduly suggestive.
Regardless of this presumption, there was no error given the totality of
the circumstances. Id. (“[T]he pre-trial line-up becomes totally irrelevant if a court
determines that there is an independent basis of reliability for the in-court
identification. . . .”); see also Manson v. Brathwaite, 432 U.S. 98 (1977).
Therefore the presumption that the pre-trial identification was unduly suggestive in
this case is defeated by the second inquiry regarding the reliability of Ms.
Manning’s in-court identification. Our conclusion is supported by the five factors
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outlined in Neil, which serve as a balancing test for determining the likelihood of
misidentification.
First, Ms. Manning testified that she had “a good five to eight
seconds” to view the intruder at the time of the crime. She saw him in a one-onone setting in which she indicated that she did not expect to find anyone else
present at the house.
Second, Ms. Manning testified that although the encounter was brief,
she spent a few highly focused seconds attempting to determine the man’s identity.
She further testified that she had previously encountered an unexpected man at the
home while house-sitting. That man had turned out to be the homeowners’ friend
who was also asked to check on the house while they were out of town. Ms.
Manning explained that she focused intently on the intruder to determine whether
he was the same visitor as before.
As to the third Neil factor, Barnes argues that Ms. Manning’s initial
description does not match some of Barnes’ key features, including his height, age,
and tattoos. However, her testimony included reasonable explanations for the
inaccuracies in her description. Ms. Manning testified that she described the man
she saw to be approximately 5’9” because she saw that he was short. She
explained that the height she gave in her description was what she considered to be
of a short man. She further testified that she was standing several feet below the
intruder as she was climbing the steps of the deck when she saw him and that their
positioning could have skewed her estimation at his height.
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With respect to her estimation of Barnes’ age, she explained that the
man she saw did not have facial hair and therefore --to her--looked younger than
Barnes actually is. She testified that, in her opinion, Barnes’ “features just stuck
out to me as being young.” Ms. Manning also indicated that Barnes’ tattoos were
covered by the clothing he wore on the day of the encounter. Her description did,
however, accurately describe Barnes’ weight and a close description of his glasses,
although she described them as being black when in fact they were brown.
Ms. Manning did state several times during her testimony that the man
she saw did not have facial hair, but on one instance during cross-examination she
indicated that she could not tell whether the man she saw had facial hair. While
Ms. Manning’s testimony was inconsistent, we do not believe it rises to the level of
manifest injustice. Likewise, given the fact that facial hair is an ever-modifiable
feature, we do not believe that Ms. Manning’s identification was unreliable
because she identified a photograph in which Barnes had at least some facial hair.
As to the fourth factor under Neil, Ms. Manning identified Barnes
without hesitation in the first line-up in which his photograph was included. The
police presented Ms. Manning with a line-up the day after the incident which did
not contain a photograph of Barnes, and Ms. Manning indicated that the man she
saw was not pictured. Additionally, Ms. Manning was still able to identify Barnes
with certainty approximately eight months after their initial encounter.
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Finally, with respect to the fifth factor in Neil, the time between the
crime and the confrontation was relatively short. Ms. Manning identified a
photograph of Barnes within approximately three weeks of the crime.
We conclude that, under the totality of the circumstances, Barnes did
not suffer a manifest injustice because the evidence does not support a likelihood
of misidentification.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING
TESTIMONY REGARDING FINGERPRINT ANALYSIS.
Next, Barnes essentially argues that evidence of a fingerprint analysis
that reveals anything short of ten matching “points” is not relevant and should be
inadmissible. However, he provides no authority for such an argument, and for the
reasons outlined below, we disagree.
Abuse of discretion is the proper standard of review of a trial court’s
evidentiary rulings. Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d
575, 577 (Ky. 2000). The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Miller v. Eldridge, 146 S.W.3d 909, 914-15 (Ky. 2004). With regard
to fingerprint evidence, several evidentiary considerations make it impossible to
conclude that the trial court abused its discretion in allowing the testimony in this
case.
It is important to note that there is no universally accepted number of
matching points required for proper identification. United States v. John, 597 F.3d
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263, 275 (5th Cir. 2010). Also, analysis of fingerprints is a technical skill not
possessed by most lay people. See Brawner v. Commonwealth, 344 S.W.2d 833,
836 (Ky. 1961). In Fields v. Commonwealth, 274 S.W.3d 375 (Ky. 2008),3 the
Kentucky Supreme Court addressed a defendant’s argument that a trial court
improperly admitted fingerprint evidence that, after analysis, was not identified as
those of the defendant. Id. at 406. The argument in Fields, like Barnes’ agrument,
was that the fingerprints were not relevant because they were not a match. The
Kentucky Supreme Court did not agree. Instead, the Court noted that “results of
tests performed on fingerprints found at the crime scene are, of course, relevant to
a determination of [a defendant’s] guilt…we are unable to fathom how [a
defendant is] prejudiced by fingerprints that [are] never identified as his.” Id.
Moreover, fingerprint evidence and testimony regarding its analysis rebuts any
claims of “shoddy police work.” Id.
Likewise in Barnes’ case, the Commonwealth had an interest in
bolstering the credibility of all of the evidence by explaining the police work
involved in collecting and analyzing fingerprints. The Commonwealth’s witness
testified as to his forensic unit’s general policy that they require ten “points” to call
a fingerprint a “match.” He also testified that he was only able to obtain a partial
print. Because the matching point system of fingerprint analysis perhaps varies
from one department to another or from one analyst to another, it was relevant for
the witness to testify as to how he arrived at his conclusion that in this case the
3
Overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky. Dec 16, 2010),
as modified on denial of rehearing (Mar 24, 2011).
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print was not a “match.” He determined that it was not a “match” for two reasons:
(1) because only four points matched, and (2) because it was only a partial print.
Issues regarding the accuracy of fingerprint evidence in a particular
case generally go to the weight and credibility of the evidence and are best left to
the finder of fact, not an appellate court. John, 597 F.3d at 276 (quotations
omitted); Hornsby v. Commonwealth, 263 Ky. 613, 92 S.W.2d 773 (1936). Barnes
had every opportunity to cross-examine the witness regarding the point-matching
analysis and in doing so to further instruct the jury regarding the weight of
fingerprint evidence. Given this, we cannot say that the trial court abused its
discretion in allowing the testimony.
Assuming arguendo that even if we determined the trial court abused
its discretion, the error would have been harmless because the testimony was that
the print could not be considered a match. Additionally, this case involved an eyewitness identification. In light of our prior determination that no error regarding
allowing Ms. Manning’s identification, we find that the admission of the
fingerprint analysis was harmless to the outcome of the case.
C. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT
REGARDING THE PERSISTENT FELONY OFFENDER CONVICTION.
Appellant argues that the Commonwealth did not meet its burden of
proving every element of the persistent felony offense. The Commonwealth
introduced evidence of two prior felony convictions. The first was a ten-year
sentence entered on October 25, 1993. The second was a five-year sentence,
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enhanced by five years, entered on August 2, 2005. The jury was instructed that
Barnes could be found guilty as a persistent felony offender if the jury found:
That he had completed service of the sentence imposed
on the convictions within five (5) years prior to the date
of the commission of the felony for which he now stands
convicted or was discharged from parole or any other
form of legal release on any of the previous felony
convictions within five (5) years prior to the date of the
commission of the felony for which he now stands
convicted.
In other words, to find guilt, the jury had to find that Barnes completed or was
released from either of the two previous sentences between May 24, 2004 and May
24, 2009. Barnes argues that because the Commonwealth did not introduce
evidence of his completion or release dates for the prior sentences, it would have
been impossible for the jury to determine which offense met the requirement.
Therefore, he argues that the trial court should have entered a directed verdict in
his favor. We disagree.
In reviewing a denial of a directed verdict, we must determine if,
under the evidence as a whole, it would be clearly unreasonable for a jury to find
guilt. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Therefore we
review the trial court’s decision for plain error.
The Kentucky Supreme Court has also made clear that direct proof of
the elements of PFO is unnecessary and reasonable inferences from the available
evidence are sufficient. Moody v. Commonwealth, 170 S.W.3d 393, 398 (Ky.
2005); see also Shabazz v. Commonwealth, 153 S.W.3d 806, 813-14 (Ky. 2005)
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(citing Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999)). In Shabazz, the
Court found that evidence of a prior conviction within five years of the current
offense was enough to formulate a reasonable inference that the defendant was on
probation from a prior sentence at the time of the current offense. 153 S.W.3d at
815. The Court noted that “even though this reasonable inference is one likely to
be arrived at through … ‘simple subtraction’ … such subtraction, when combined
with competent evidence, is sufficient to create a reasonable inference in this
case.” Id.
The Commonwealth introduced competent evidence of Barnes’ prior
felony convictions, sentencing dates and lengths of those sentences by reading
from the certified conviction exhibits. Through simple subtraction, it is reasonable
to infer that Barnes’ 2005 sentence was entered after May 24, 2004, and thus
within five years of his current offense. We do not find such an inference clearly
unreasonable.
Accordingly, the judgment of the Fayette County Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Frankfort, Kentucky
David B. Abner
Frankfort, Kentucky
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