1. Trial courts apply a two-step process to determine whether to admit or suppress an eyewitness identification. First, the court determines whether the procedure used for making the identification was impermissibly suggestive. Second, if the challenged procedure is found to be impermissibly suggestive, the court considers eight factors to determine whether, under the totality of the circumstances, there was a substantial likelihood of misidentification.
2. Appellate courts apply a bifurcated standard to review a district court's decision to admit or suppress an eyewitness identification. The appellate court reviews the district court's factual findings to determine whether those findings are supported by substantial competent evidence and reviews the legal conclusions drawn from those findings de novo.
3. The party alleging a trial error has the burden of designating a record that affirmatively shows prejudicial error.
4. When considering a case-specific disproportionality challenge to a sentence under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights, a district judge must make factual findings and draw conclusions of law.
5. Criminal defendants are responsible for ensuring the district court makes adequate factual findings under State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), to permit appellate review of a case-specific challenge to the constitutionality of a sentence.
6. A criminal defendant may raise a categorical challenge to the proportionality of his or her sentence under the Eighth Amendment to the United States Constitution, as interpreted in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), for the first time on appeal because such a claim involves a question of law.
7. A criminal defendant raising a categorical challenge to the proportionality of his or her sentence under the Eighth Amendment to the United States Constitution, as interpreted in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), must demonstrate the existence of a valid categorical claim.
Appeal from Sedgwick District Court; Jeff Goering, judge.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of same office, was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Sergio Cervantes-Puentes appeals his conviction of one count of aggravated indecent liberties with a child and sentence of life without the possibility of parole for 25 ...