ON REVIEW FROM COURT OF APPEALS CASE NO. 2010-CA-000670-MR FAYETTE CIRCUIT COURT NO. 09-CR-01031
COUNSEL FOR APPELLANT: V. Gene Lewter Department of Public Advocacy Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway Attorney General David Bryan Abner Assistant Attorney General Office of Criminal Appeals Office of the Attorney General
In the late evening before dark on May 24, 2009, Katherine Manning went to the home of her friends, Denny and Graziella Van Der Westhuyzen, at 417 Lakeshore Drive in Lexington, Kentucky. Her friends were out of town and had requested Manning to generally look after the house and, more especially, to water the plants on the outside of the house and to feed the cats. Her routine was to go twice daily, once in the morning and once in the evening.
As she was tending to these duties in the back of the house, she proceeded up some steps to the back deck. As she got to near the top of the steps, she looked into the sliding glass door and saw a person inside bending over removing the pole from the base of the door which secured it. Startled to find someone inside the house, she yelled at the person and inquired as to what he was doing there. The two stared at each other and then he disappeared into the house. Frightened, Manning went to the front of the house and learned that the front door was unlocked. She proceeded to her car and, after calling a friend and her father, called 911 and drove up the street a short distance to wait for law enforcement to arrive. She went back to the house when the police arrived and entered the home. She noticed that a pink bicycle which had been in the yard when she had arrived was then gone. An inspection of the home by the police revealed that entry had apparently been made through a cat door in the back. A glass panel on the back door was damaged and the door was unlocked. Upon returning home the following day, the owners of the home discovered that the master bedroom had been disturbed and 20 pieces of jewelry were missing.
One of the detectives working the case, Steve Bryant, took a partial print from a jewelry box in the bedroom. Manning had described to the police that the man she saw would have been wearing glasses and was white, approximately 5' 9" tall and from 18 to 22 years old, and she did not notice any facial hair. She also described him as wearing a dark colored shirt and khaki or brown shorts.
The next day, Detectives Franz and Wolff of the Lexington Metropolitan Police Department showed a six-photo lineup to Manning at her parents' home. The Appellant was not included in this group of pictures. She failed to identify anyone in that photo lineup. A couple of weeks later, on June 15, 2009, while the detectives were driving in the neighborhood looking for someone to fit the description Manning had given to them, they saw the Appellant, Darby Ashley Barnes. Since he generally met the description given to the police by Manning, they stopped and questioned him. After taking a picture of him, he was taken to the police station and interviewed concerning the burglary. He denied involvement in the crime. Appellant gave the peculiarly suspicious explanation that he had been going door to door on Lakeshore Drive looking for friends whose addresses he did not know. It is unclear from the testimony as to whether he was doing this on the date of the burglary or on June 15th, the date he was stopped and questioned.
The following day, a second six-photo lineup was presented to Manning. The Appellant was pictured along with five other photos, all similar in physical characteristics, as well as dark-rimmed glasses. Appellant's photo was one taken after he was arrested on other charges. All the other subjects appeared to be pictured in similar type mug shots. Manning immediately picked the Appellant from the lineup. She insisted she was 100% positive that that was the person whom she had seen inside the house on May 24th. After identifying the Appellant in the photo lineup, she was shown an 8x10 photo to reaffirm that she had selected the right person.
At trial, Manning positively identified the Appellant Barnes, although he was actually 38 years of age and there was some disparity in her previous description of his height and facial hair.
The Appellant was indicted and tried for second-degree burglary and for being a first-degree persistent felony offender. The jury found the Appellant guilty of second-degree burglary and enhanced to first-degree persistent felony offender and recommended a total sentence of fifteen years. The court sentenced the Appellant Barnes in accordance to the jury's recommendation.
Upon appeal to the Court of Appeals, his conviction was affirmed.
We granted discretionary review for the purpose of examining two issues ...