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Jeter v. Commonwealth

Supreme Court of Kentucky

November 2, 2017

TRAVIS JETER APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY M. EASTON, JUDGE NO. 15-CR-00041.

          COUNSEL FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Lucas Assistant Attorney General

          OPINION OF THE COURT BY JUSTICE HUGHES AFFIRMING

         Travis Jeter appeals as a matter of right from a judgment of the Hardin Circuit Court convicting him of robbery in the first degree, first-degree possession of a controlled substance (cocaine), and use of drug paraphernalia. In accord with jury recommendations, the trial court sentenced Jeter as a first-degree persistent felon to respective prison terms of life, three years, and twelve months, with these sentences to be served concurrently as a matter of law. Jeter contends that he is entitled to a new trial for any of three reasons: (1) the trial court erred by denying Jeter's motion in limine to exclude eyewitness identification testimony; (2) the trial court abused its discretion by denying Jeter's last-minute motion for a continuance; and (3) the trial court abused its discretion by denying Jeter's motion to sever the robbery charge from the drug and paraphernalia charges. Convinced that Jeter has failed to identify anything warranting the relief he seeks, we affirm the Hardin Circuit Court's judgment.

         RELEVANT FACTS

         The Commonwealth's proof at trial included testimony by the robbery victim, Joyce Perry, a sixty-or-so-year-old Elizabethtown resident who, in January 2015, had recently retired from her job at the Towne Mall in Elizabethtown. Perry related that during the evening of January 5 she had gone to the mall to visit with some of her former co-workers. As she was getting into her car in the mall parking lot around 7:30, a man she did not know approached her and asked what time the mall closed. For various reasons the man's question and comments seemed odd to Perry, but she answered his question.

         As Perry was climbing into the driver's seat of her car, the man suddenly pushed her toward the passenger seat and squeezed into the car along with her. Eventually, after two or three attempts, he managed to close the door. He told her, "This is a holdup!" and demanded her money and her car keys. He also demanded that Perry climb out of the driver's seat and onto the passenger's side floorboard. When Perry replied that she had no money, the man told her, "I can shoot you! Ill. kill you!" and continued to try to force Perry into the passenger seat. Perry testified that the gear lever and the central console made it impossible for her to climb into the passenger side of the car, and so she resisted. She pulled at the man's toboggan-type hat; grabbed his hair, which was styled into loose braids; and also tried to honk the horn. Her resistance prompted the man to start hitting her in the face.

         A struggle ensued, with Perry continuing to try to honk the horn and then trying to activate the car's alarm with her key fob. The man struck Perry several more times and eventually succeeded in grabbing her purse. During the struggle Perry managed at one point to open the front, passenger side door, which the man then reclosed, and by pressing the buttons on her key fob she may inadvertently have locked the front, driver's side door, which prompted r more blows. She apparently also caused the trunk to open. Finally, the man climbed into the back seat and exited through the rear, driver's side door. Perry waited briefly to be sure that he was gone and then went back into the mall for help.

         Near the end of Perry's ordeal, another mall patron, Jean Albrecht, arrived and parked a row behind Perry's car. Albrecht testified that she had exited her vehicle and started walking toward the mall when she saw the trunk of Perry's car swing open and at about the same time saw a man emerge from Perry's car and begin to walk away, toward the Sears end of the mall. She called to the man to let him know about the trunk. He stopped and turned toward her, but before she could say anything the trunk closed, and so she just waved, and the man went on. Albrecht continued into the mall, she testified, where she had been for just a minute or two when Perry came in calling for help.

         Someone summoned police and emergency medical services, and Perry was taken to Hardin Memorial Hospital, where she was found to have suffered a broken nose, a broken eye socket, and a chipped tooth. The eye-socket injury was still being treated at the time of trial, more than eight months after the attack. Before she was taken to the hospital, Perry told investigators that she did not get a good look at her attacker but that she remembered an African-American man with long braids under a toboggan hat. She also remembered that he was wearing a plaid, hooded shirt; blue jeans; and white shoes.

         Albrecht told investigators at the scene that the man she saw walking away from (what turned out to be) Perry's car, was a tall, young African-American who was wearing a dark toboggan hat and a dark jacket. The investigators did not subsequently ask either Perry or Albrecht to attempt to identify Jeter in person or in a photo array.

         Police investigators obtained the mall's security video. The video recording of the incident, portions of which the Commonwealth played several times for the jury, captured a man exiting a dark-colored pickup truck and approaching Perry's vehicle as she is just getting into it. It shows the man forcing his way inside the car and, with some difficulty, closing the door. Over seven minutes, the video shows Perry's passenger door opening, but quickly reclosing; Albrecht's arrival; and eventually a man climbing out the back door of Perry's car. The video depicts the man's brief encounter with Albrecht and then Perry leaving her car to enter the mall.

          rom the mall video, investigators isolated photos of the perpetrator's pickup truck and had them shown during local news broadcasts. The former owner of the pickup truck - which had been customized - saw it on television and notified the investigators that he had recently sold it to a woman named Karen. "Karen" turned out to be Karen Frazier, the mother of Travis Jeter, with whom Jeter lived at the time. An investigator saw the pickup truck parked at Frazier's home a couple of days after the robbery. An earlier search of Perry's (vehicle after the incident had turned up a pair of eyeglasses that did not belong to Perry. Having used the security video to connect the pickup truck to Jeter, the investigators located a recent photo of him, and in the photo he is wearing glasses like those found in Perry's car. These facts led to a search warrant for the pickup truck and for Frazier's house. During the searches, investigators found a man's dark jacket that appeared to be spotted with blood as well as a spoon with cocaine residue and the "crack" pipe that gave rise to Jeter's drug charges.

         Investigators submitted the glasses found in Perry's car and the potential blood samples from the jacket found in Jeter's room to the state forensic laboratory for DNA analysis. At trial, analysts testified that DNA from the glasses matched Jeter's DNA at all the sites that could be tested, enough sites to yield an astronomically small chance of choosing an individual with that profile at random from the relevant population. The DNA from Jeter's jacket matched Perry's DNA at all sites, again with an infinitesimal chance of a random match.

         Jeter maintained an alibi/mistaken-identity defense. Soon after his arrest, Jeter told investigators that he spent much of the day of the robbery at a "crack house" using cocaine and becoming acquainted with a fellow user. He claimed that at the time of the robbery, he did not have his truck, although he declined to say who had it. He told the investigators that, hoping to obtain some money to pay for the cocaine he had already used, to buy more cocaine, and to take his new friend out to dinner, he had had someone drive him to a Save-a-Lot, where he hoped to sell some food stamps. By 9:00 that evening, however, he was reunited with the truck, he admitted, because it was about then that his mother called him and told him to bring it home.

         Jeter's counsel argued at trial that Jeter's police statement could be credited because Jeter told the investigators things-that he used cocaine, that he visited a "crack house, " that he attempted to sell food stamps-that a person was unlikely to admit were they not true. Defense counsel argued that the Commonwealth's DNA and. other evidence suddenly became far less damning given that the person who used Jeter's truck could also have used Jeter's jacket, which he found in the truck. As for Jeter's glasses left behind in Perry's car, they may well have fallen out of the jacket's pocket while it was being worn by that other person.

         Jeter maintains that one reason the jury rejected his defense is that Albrecht was allowed to identify Jeter at trial for the first time as the African-American man she saw getting out of Perry's car. Albrecht's in-court identification of him, Jeter claims, runs afoul of the United States Supreme Court's Neil v. Biggers, 409 U.S. 188 (1972), line of cases, wherein the Supreme Court has recognized "a due process check on the admission of eyewitness identification." Perry v. New Hampshire, 565 U.S. 228, 232 (2012). The constitutional violation here, Jeter further contends, cannot be deemed harmless beyond a reasonable doubt, and so entitles him to a new' trial. We begin our analysis with this contention.

         ANALYSIS

         I. A Witness's Spontaneous In-Court Identification of the Defendant Did Not Implicate Biggers.

         The Supreme Court has held that under certain circumstances the Due Process Clauses of the United States Constitution bar admission of eyewitness identification evidence. To make that determination, courts have employed a two-pronged test. Commonwealth v. Parker, 409 S.W.3d 350, 352 (Ky. 2013) (noting that, "The determination of whether identification testimony violates a defendant's due process rights involves a two-step process.") (citations omitted). The court must determine first whether the identification procedure was unnecessarily suggestive. Perry, 565 U.S. at 238-39 ("[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary."). If so, the court must then consider the totality of the circumstances-the circumstances both at the time of the witness's initial observations and also at the subsequent identification-to assess the reliability of the identification. The identification evidence is to be excluded on due-process grounds only if "improper police conduct created a 'substantial likelihood of misidentification.'" Id. (quoting Biggers, 409 U.S. at 201).

         The United States Supreme Court developed this test in the context of out-of-court identification procedures, such as police-arranged show-ups, lineups, and photo arrays. With several lower federal courts expressing concern about the suggestiveness of the in-court identification process itself, those courts have since split on the question of whether the same test applies to identifications elicited for the first time in court. See, e.g., Lee v. Foster, 750 F.3d 687 (7th Cir. 2014) (applying the two-part test, but ruling that the particular in-court proceedings were not unnecessarily suggestive), United States v. Hill, 967 F.2d 226, 232 (6th Cir. 1992) ("All of the concerns that underlie the Biggers analysis, . . . are no less applicable when the identification takes place for the first time at trial."); but cf. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986) (Acknowledging that in-court identifications are inherently suggestive, but asserting that-different considerations apply when the initial identification is in court, since then, "[t]he jury can observe the witness during the identification process and is able to evaluate the reliability of the initial identification.").

         Like the Supreme Court's earlier cases in the Biggers line, Perry concerned an allegedly suggestive pre-trial identification. What distinguished Perry was the fact that the identification was not orchestrated by police investigators. Instead, it occurred spontaneously when the witness, asked by a police officer for a description of the person she had seen breaking into cars, called the investigator over to her kitchen window, and identified Perry, who was standing next to another police officer in the parking lot outside, as the perpetrator. Perry, 565 U.S. at 234.

         Responding to the defendant's contention that the identification circumstances amounted to an unduly suggestive show-up, the Supreme Court emphasized that the due-process check on unnecessarily suggestive identification procedures is not triggered by suggestiveness per se. That, the Court explained, would lead to an overly-broad constitutional rule, because "[m]ost eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do." 565 U.S. at 244. Suggestiveness as such, the Court noted, and the reliability concerns it raises, are usually matters for jury resolution in a trial governed by the Sixth Amendment and conducted under the rules of evidence. 565 U.S. at 237. Suggestiveness raises due process concerns "only when law enforcement officers use an identification procedure that is both suggestive and unnecessary." 565 U.S. at 238-39. In other words, despite the acknowledged fallibility of eyewitness identification evidence, [1] that fallibility "does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness." 565 U.S. at 245.

         In this case, as noted, although both Perry and Albrecht saw the perpetrator at the time of the robbery, neither woman provided investigators with a facial description of that person, or much of a description beyond the typical race-age-and-gender, height-and-build, type-of-clothing description. In fact, Perry told investigators that she did not get a good look at her attacker and would not be able to identify him.

         After Jeter's arrest, the investigators did not ask either woman to attempt to identify Jeter through a line-up or a photo array. That lack of pre-trial testing prompted a motion in limine by Jeter asking the trial court to disallow, as incompatible with Biggers, ie., ...


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