VONTEZ KING v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001691-MR
VONTEZ KING
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 01-CR-00002
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Vontez King has appealed from a judgment of
conviction and sentence entered by the Knox Circuit Court on July
18, 2001, which convicted him of three counts of fraudulent use
of a credit card in excess of $100.001 and one count of being a
persistent felony offender in the first-degree (PFO I)2 and
sentenced him to 15 years in prison.
Having concluded that the
1
Kentucky Revised Statutes (KRS) 434.650.
2
KRS 532.080(3).
trial court did not abuse its discretion in admitting evidence of
witness identifications and that King received a fair trial, we
affirm.
The evidence presented at the hearing on King’s motion
to suppress witness identification showed that on December 5,
2000, King entered a Wal-Mart store in Barbourville, Knox County,
Kentucky, at various times during the day, and that he completed
three separate transactions with a stolen credit card, belonging
to Deborah Day.
To accomplish these frauds, King signed the
names “Al Wilson” and “Mike King” on the receipts.
Although the
three clerks that handled the transactions later testified to
being suspicious of the purchases, King assured each of them that
he had permission to use the card.
Day was alerted to the unauthorized charges on her
account by her credit card company on the same day of the
transactions.
In turn, Day alerted the Wal-Mart loss-prevention
team to the alleged thefts.
A loss-prevention officer for Wal-
Mart then collected video recordings of the transactions and
showed them to Officer Mike Broughton of the Barbourville Police
Department. Upon viewing the tapes, Officer Broughton recognized
King, with whom he had previously been acquainted, as the
individual making the credit card purchases.
Coincidentally,
while Officer Broughton was driving from the Wal-Mart to the
police station, he spotted King walking along the street near the
store and apprehended him.
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Shortly after King had been transported to the police
station for questioning, Reba Wilson, one of the Wal-Mart clerks
who had processed King’s purchases that day, was contacted.
After a brief interview, Wilson was able to correctly identify
the clothes King was wearing that day.
However, she was not able
to identify with certainty a digital photograph of King taken
from the surveillance video.
At this point, Officer Broughton
took Wilson into a small room where King was sitting.
When
Wilson entered, King jumped up and exclaimed, “you can’t do that!
I’m the only black person here.
She’ll know it’s me.”
was then quickly taken out of the room.
Wilson
After leaving the room,
Wilson, predictably, verified King as the man who had made the
transaction.
On December 8, 2000, the two remaining cashiers who had
assisted King on December 5, Devonda Carnes and Karen Ross, were
brought to the police station.
Both witnesses gave statements
concerning King’s identification.
Carnes’s statement was
detailed, correctly describing the clothes and eyeglasses that
King had worn on December 5.
Carnes also accurately described
King’s approximate height and weight.
specific.
Ross’s statement was less
Other than correctly identifying King’s race, she
could remember few other details.
However, she was able to
recall several specific details about the transaction, including
a Winnie the Pooh doll that King had purchased using Day’s credit
card.
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After providing their descriptive statements, Carnes
and Ross were shown a photo arrayal containing King’s picture
along with the pictures of five other African-American men.
King
argues that the photo lineup was riddled with constitutional
infirmities.
King notes that he was much older than the other
men depicted and that he and only one other man were under 6 feet
tall.
King also notes that he was pictured wearing the same
eyeglasses and jacket he had worn the day of the transactions.
Both Carnes and Ross identified King from the photo spread.
Prior to trial, King filed a motion to suppress all
evidence of the above witness identifications.
King also argued
that Wilson, Carnes and Ross should be precluded from identifying
him at trial due to the taint from the unduly suggestive nature
of the pretrial identifications.
On March 2, 2001, the Knox
Circuit Court granted King’s motion as to Wilson’s pretrial
identification, but denied King’s motion as to Carnes and Ross.
The trial court further ruled that Wilson would be permitted to
identify King at trial.
At a jury trial on May 10, 2001, King was found guilty
of three counts of credit card fraud and one count of being a PFO
I.
The jury recommended a 15-year sentence for each conviction,
to run consecutively for a total sentence of 45 years.
In post-
trial proceedings, King filed a motion to set his sentence at 15
years, arguing that the trial court could not impose a sentence
in violation of KRS 532.080, which provided for a maximum
sentence for these convictions of 20 years.
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King also filed a
motion for a new trial on the grounds that one of the jurors had
belonged to the same church as King’s ex-wife and live-in
girlfriend Margaret Helvey.
The affidavit in support of the
motion stated that several church members disapproved of Helvey
and King living together.
On June 22, 2001, the trial court
granted King’s motion to set his sentence at 15 years in prison
on each conviction, with the sentences to run concurrently.
The
trial court denied King’s motion for a new trial, stating that
King’s affidavit fell far short of the constitutional standard
required.
This appeal followed.
King argues that the in-court and pretrial witness
identifications by Wilson, Carnes and Ross of him should have
been suppressed because the identification procedures employed by
the police were so unduly suggestive that he was denied his right
to due process of law.
Identification testimony following a
pretrial identification is violative of a defendant’s
constitutional right to due process of law if the pretrial
identification procedure was so “impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification.”3
The determination of whether identification
testimony would violate a defendant’s due process rights involves
3
Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 383
(1999)(quoting Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.
1986), cert. denied sub nom. Foltz v. Thigpen, 482 U.S. 918, 107
S.Ct. 3196, 96 L.Ed.2d 683 (1987); and Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)).
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a two-step process.4
“First, the court examines the pre-
identification encounters to determine whether they were unduly
suggestive.”5
If not, the analysis ends and the identification
testimony is allowed.
“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.’”6 Determining whether under the
totality of the circumstances the identification was reliable
requires consideration of the five factors enumerated by the
United States Supreme Court in Neil.7
These factors “include the
opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of the
witnesses’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and the confrontation.”8
We
will consider the above test as we examine each witness’
identification testimony separately.
The trial court concluded that the pretrial
identification procedure used for Wilson was impermissibly
suggestive and it ordered all evidence of that pretrial
4
Id.
5
Id.
6
Id.(quoting Stewart v. Duckworth, 93 F.3d 262, 265 (7th
Cir. 1996)and Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375,
382, 34 L.Ed.2d 401, 411 (1972)).
7
Wilson v. Commonwealth, Ky., 695 S.W.2d 854, 857 (1985).
8
Neil, supra 409 U.S. at 199, 34 L.Ed.2d at 411.
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identification to be suppressed.
However, the trial court
allowed Wilson to identify King at trial from her independent
recollection of the event.
Since we agree with the trial court’s
finding of undue suggestiveness as to Wilson’s pretrial
identification, a review of Wilson’s at-trial identification
requires us to apply the five Neil factors.
As to the first two factors, we note that Wilson had an
adequate opportunity to view the suspect and that she gave his
transactions considerable attention.
From a review of the
surveillance tapes, we note that on December 5 Wilson engaged in
three transactions with King, with each transaction lasting a
minute or more.
According to Wilson’s testimony at the
suppression hearing, the first two times King attempted to
purchase items through her, his credit card was denied.
The
third time he presented the card belonging to Deborah Day.
When
Wilson asked him for identification he was unable to produce it
and instead explained to Wilson that it was his daughter’s card.
Not only did this series of interactions between Wilson and King
provide an opportunity for Wilson to view King, but the denial of
the credit card enhanced the level of attention that Wilson paid
to King.
Thirdly, we note that Wilson provided a highly accurate
description of King prior to her viewing King in the ante room at
the police station.
She was also very certain in her
identification of King following their confrontation.
Finally,
we note that Wilson’s identification occurred the very night of
the alleged transactions while her interactions with King were
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still fresh in her mind.
Considering all of these factors, we
conclude that the trial court properly allowed Wilson to identify
King at trial.
As to Carnes and Ross, the trial court allowed evidence
of both the pretrial identifications and the at-trial
identifications because the photo lineup shown to them was not
unduly suggestive.
Wilson argues, to the contrary, that he was
singled out in the lineup because he was older than the other
men, because he was shorter than four of the other men, and
because he was the only man wearing eyeglasses and a jacket.
We
disagree and affirm the decision of the trial court.
In reviewing claims of undue suggestiveness, we are
without the benefit of clear guidelines.
Nonetheless previous
decisions in the courts of our Commonwealth seem to suggest that
the test is one of degree.
That is, whether the defendant is so
singled-out within the photo lineup that the likelihood of
irreparable misidentification is substantial.9
Given this
standard, we are unconvinced by King’s claims.
All six men were
African-American males, all were pictured within substantially
similar surroundings, and it was clear that all six were in
custody at the time the photographs were taken.10
While King was
shorter than four of the five other men, the height charts
pictured behind the men were not clearly visible.
The garments
being worn by the men were likewise not readily apparent.
9
See Dillingham, supra at 383.
10
See id.
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It is
difficult to tell from the neck-up photos that King was wearing a
jacket, and since the photographs were in black-and-white it was
impossible to discern that King’s jacket was blue.
While King
was factually older than the other men, the ages of the men were
not obviously discernable from the photo lineup.
Finally, while
it is troubling that King was the only man depicted wearing
eyeglasses, we do not believe this in and of itself rises to the
level of a due process violation.
Therefore, we cannot say that
the trial court abused its discretion by allowing the admission
of the identification evidence.
Finally, we turn to King’s second issue on appeal--that
he received an unfair trial because of juror bias.
King alleges
that during voir dire the potential jurors were asked if they
were acquainted with defense witness Margaret Helvey.
While none
of the jurors responded in the affirmative, it was later
discovered that juror Raymond Troutman attended the First Baptist
Church of Barbourville along with Helvey.
Helvey also alleged in
an affidavit filed with the motion for a new trial that a church
member had approached her concerning her out-of-wedlock
cohabitation with King.
The unnamed church member allegedly told
Helvey that she risked being ejected from the choir if she did
not cease her live-in relationship with King.
King asserts that
Troutman’s presence on the jury rendered his trial fundamentally
unfair.
We disagree.
All defendants are entitled to the right of due process
of law which includes the right to an unbiased decision by an
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impartial jury.11
If an unqualified juror participates in the
verdict, a defendant’s right of due process has been violated.12
Doubts concerning whether there was bias must be resolved in
favor of the defendant.13
The defendant’s right to challenge a
juror includes the incidental right that the information elicited
on voir dire shall be true.14
A juror is qualified to serve
unless there is a showing of actual bias.15
“It is incumbent
upon the party claiming bias or partiality to prove the point.”16
In filing his motion for a new trial, King failed to
present convincing evidence in support of the motion.
not present any testimony from juror Troutman.
King did
Nor did King
present any evidence showing that juror Troutman was actually
acquainted with witness Helvey, let alone that he was biased
toward Helvey.
As the trial court noted in its ruling on the
motion, the First Baptist Church had a large congregation; and it
was highly probable that not all parishioners were acquainted
with one another.
In other words, the evidence presented by King
in support of his motion for a new trial was nothing more than
speculation that juror Troutman harbored animosity toward Helvey.
11
Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 134 (1988).
12
Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 669 (1990).
13
Randolph v. Commonwealth, Ky., 716 S.W.2d 253, 255 (1986).
14
Id. at 256.
15
Watson v. Commonwealth, Ky., 433 S.W.2d 884 (1968); Polk
v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978).
16
Polk, supra at 337.
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In ruling on the motion for a new trial, the trial court could
only base its decision on the evidence presented at the hearing
and the trial.
There is nothing in the record to indicate that
there was any juror bias to support King’s claim that the trial
court’s ruling was clearly erroneous in denying the motion.17
Accordingly, for the foregoing reasons, the judgment of
the Knox Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler, III
Attorney General
Bryce Amburgey
Frankfort, Kentucky
Rickie L. Pearson
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Todd Ferguson
Assistant Attorney General
Frankfort, Kentucky
17
See Caldwell v. Commonwealth, Ky., 634 S.W.2d 405 (1982);
and Polk, supra.
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