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Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge.
BY THE COURT
1. A district court is statutorily permitted to order two or more cases to be tried together if the crimes involved could have been joined in a single complaint, information, or indictment. Two or more crimes may be charged in separate counts of the same complaint, information, or indictment, if the crimes: (1) are of the same or similar character; or (2) are based on the same act or transaction; or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
2. The district court should follow a two-step process in determining whether an eyewitness identification is admissible evidence: The first step examines whether the police procedure used to obtain the original out-of-court identification was unnecessarily suggestive. If so, the analysis moves to the second step of considering whether there was a substantial likelihood of misidentification under the totality of the circumstances.
3. Under the first step of the eyewitness identification admissibility test, the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. Where an eyewitness is taken to the scene of a stopped vehicle which law enforcement has identified as possibly containing the perpetrator of the witnessed crime and is singly shown the handcuffed and spotlighted suspect, the identification procedure is unnecessarily suggestive.
4. The second step of the eyewitness identification admissibility test requires an analysis of whether the unnecessarily suggestive procedure led to a substantial likelihood of misidentification, after considering the totality of the circumstances.
5. The failure to object to the content of a jury instruction precludes an appeal of that instruction unless it is clearly erroneous. The determination of whether an instruction is clearly erroneous employs a two-step process: (1) The reviewing court determines whether the challenged instruction was legally and factually appropriate; and (2) if error is found, the reviewing court determines whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.
6. Trial courts should not instruct jurors that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony.
7. When considering the reversibility of an eyewitness identification instruction that erroneously directs the jury to consider degree of certainty as a reliability factor, the reviewing court first considers two questions: Whether the identification was crucial to the State's case; and whether there was an opinion of certainty presented at trial. If the answer to either inquiry is " no," the instruction error is harmless. If the questions are answered in the affirmative and the clearly erroneous standard applies, the reviewing court proceeds to consider the impact of the erroneous jury instruction in light of the entire record and additional considerations.
8. Gang affiliation evidence is admissible if relevant and related to the charged crime. Evidence of gang affiliation may be admitted when relevant to bolster the credibility of a State witness.
9. Even where no individual trial error supports a conviction reversal, the cumulative effect of multiple errors may require reversal if the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. But a defendant is only entitled to a fair trial and not a perfect trial.
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Shawn E. Minihan, of the same office, was with her on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
[297 Kan. 1049] OPINION
[297 Kan. 1050] JOHNSON, J.
The district court granted the State's motion to consolidate two homicide cases against Jason A. Cruz, one involving a murder in a nightclub parking lot in August 2008 and the other involving a murder in a strip club parking lot in March 2007. Following the consolidated jury trial, the jury convicted Cruz of first-degree murder and criminal possession of a firearm for the 2008 incident but acquitted him of the first-degree murder, aggravated battery, and criminal possession of a firearm charges arising from the 2007 incident. Cruz appeals his convictions for the 2008 murder, arguing: (1) The district court erroneously granted the State's motion to consolidate; (2) the district court unconstitutionally admitted improper eyewitness identification evidence; (3) the district court erroneously instructed the jury on eyewitness identification testimony; (4) the district court erroneously admitted gang evidence; and (5) the cumulative effect of trial errors denied him a fair trial. Finding that the errors in this proceeding did not deny Cruz his right to a fair trial, we affirm his convictions.
Factual and Procedural Background
The events giving rise to the charges in the 2008 case for which Cruz was convicted occurred in the early morning hours of August 24, 2008, in the parking lot of Lightning Joe's nightclub. The victim, Larry Barnett, had been in the nightclub with his fiancé e, Elease Childers, Childers' aunt, and Childers' brother. At the 1:50 a.m. closing time, Barnett, Childers, and her aunt proceeded to leave the nightclub but noticed that Childers' brother was not with them. Barnett went back inside to find him and told Childers and her aunt to wait outside.
Meanwhile, Cruz was in the parking lot with Esquire McNair and Angela Smith, whose Ford Escape was parked in the lot. While Childers and her aunt were waiting, Cruz and McNair approached them. Childers' aunt and McNair were engaged in a friendly conversation when Barnett returned with Childers' brother and informed McNair that Childers was with him. Barnett and McNair shook hands, and the group began to disburse, when Cruz verbally challenged Barnett, prompting a few minutes of argument.
[297 Kan. 1051] Cruz then went to Smith's vehicle and retrieved a large handgun, which Smith tried to take from him. But Cruz pushed Smith to the ground and walked toward Barnett and shot him in the leg. After Barnett fell to the ground, Cruz continued walking toward him until he was standing over Barnett. From that vantage point, Cruz discharged all the rounds remaining in the weapon, inflicting a total of 16 gunshot wounds into Barnett, which proved fatal. After the shooting ended, Cruz, McNair, and Smith got into the Escape and drove away.
At approximately 1:59 a.m., Wichita police received a 911 call reporting the shooting. When Officer Randy Williamson arrived at the scene, Childers was hysterical for several minutes before Williamson was able to calm her down and obtain a basic description of the suspects and the vehicle they were driving. Williamson broadcasted the descriptions over his police radio, causing another officer to stop a Ford Escape at approximately 2:10 a.m. Three people were in the vehicle; Smith was driving, Cruz was in the front passenger seat, and McNair was in the back seat.
Based upon Childers' assurances that she could identify the suspects, Williamson drove her to the location of the vehicle stop. When they arrived, several patrol cars were parked along the curb behind the Escape. The three suspects were each in a separate patrol car. Williamson parked approximately 50 feet away from the suspects and illuminated the area with his spotlight, takedown lights, and bright headlights. Childers sat in the rear of the patrol vehicle with the cage partition window open, allowing her a clear view through the front windshield. Officers brought the suspects out of the patrol cars individually for identification.
Cruz was the first person the police brought out for identification. As soon as Cruz looked toward the patrol vehicle, Childers unequivocally said, " [T]hat's the man that shot my fiancé ." Next, Childers immediately
identified McNair as the man who was originally arguing with Barnett. Childers also identified Smith as the female who was trying to break up the disturbance in the parking lot. Finally, Childers identified the Escape as the vehicle from which Cruz had obtained his handgun and in which he had fled after the shooting.
[297 Kan. 1052] Smith gave the officers permission to search her Escape. A crime scene investigator searched the vehicle and found a Cobray M-11 9 millimeter pistol underneath the front passenger seat. The firearm, tool mark examiner for the Sedgwick County Regional Forensic Science Center testified that all of the recovered bullets from the Lightning Joe's incident came from the Cobray gun.
The Sedgwick County Regional Forensic Science Center Biology and DNA lab manager testified that she was only able to obtain a partial DNA profile from the weapon; however, Cruz could not be excluded as a contributor to the DNA profile. In statistical terms, the probability of selecting an unrelated individual at random who would exhibit a profile that is a potential contributor to the profile on the grips of the weapon is 1 in 112 in the Caucasian population, 1 in 209 in the black population, and 1 in 192 in the Hispanic population.
The State charged Cruz with first-degree murder and criminal possession of a firearm in the 2008 case. The first jury trial in the case resulted in a mistrial because the jury could not reach a unanimous verdict. Before Cruz was retried on that crime, the police obtained information from an informant, Raymond Hubbard, that connected Cruz to an earlier murder in the parking lot of the Babydolls strip club.
The Babydolls incident occurred in that establishment's parking lot in the early morning hours of March 8, 2007. Timothy Conde had gone to the club with his cousin and Jeff Johnson. Conde and Johnson left the club a little before 2 a.m. Before they reached their vehicle, a man approached them and acted as though he wanted to fight. Conde and Johnson told the man they were not bothering anyone and informed him that they were members of the Crips gang. That man walked away as though there was no further problem. But another unknown man approached, said, " [W]e about to jump some gangster shit now," and punched Conde. Conde tried to return the punch, but an unseen assailant shot him in the arm and fired other rounds that hit the ground near Conde as he ran towards his car. At 1:45 a.m., a detective was dispatched to Babydolls and found Johnson in the parking lot with six gunshot wounds. He was pronounced dead at 2:13 a.m. A crime [297 Kan. 1053] scene investigator recovered 10 cartridge casings and 7 bullets from the crime scene.
In August 2009, Hubbard contacted the police to relate that Cruz had committed the 2007 Babydolls murder, using the same gun that he used in the 2008 Lightning Joe's murder. Hubbard knew Cruz because they were both members of the Folk gang. He testified that the day after the Babydolls homicide, Cruz told Hubbard he shot a man several times and killed him. Hubbard did not go to the police at the time because as a gang member, he was " supposed to keep [his] mouth closed." Hubbard testified that Cruz told him about the connection between the two homicides while he and Cruz were in jail together. In exchange for testifying truthfully at Cruz' trial, Hubbard was given a plea agreement in his own case. The Babydolls case had been cold since the summer of 2007, but because of Hubbard's information, detectives asked the tool mark examiner to see if the Babydolls' and Lightning Joe's homicides were linked. The tool mark examiner confirmed that the same gun was used in both homicides. The State charged Cruz with first-degree murder, two counts of aggravated battery, and criminal possession of a firearm in the Babydolls case.
The State filed a motion to consolidate the two cases, and Cruz filed a written objection to the consolidation and orally objected at the hearing on the motion. Despite the objection, the district court granted consolidation. The consolidated case proceeded to a jury trial, and the State presented evidence about both homicides. The jury found Cruz guilty of both charges in the 2008 Lightning Joe's case but acquitted him on the charges in the 2007 Babydolls case. The district
court imposed consecutive sentences of a hard 50 life sentence on the first-degree murder conviction and 23 months' imprisonment on the criminal possession of a firearm conviction. Cruz timely appeals his convictions.
Cruz first contends that he was denied his right to a fair trial when the district court erroneously consolidated his two cases into one trial. A district court is statutorily permitted to order two or more cases to be tried together if the crimes involved could have [297 Kan. 1054] been joined in a single complaint, information, or indictment. K.S.A. 22-3203. Two or more crimes may be charged in separate counts of the same complaint, information, or indictment, if the crimes: (1) are of the same or similar character; or (2) are based on the same act or transaction; or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1). Cruz contends that, here, the district court erred in finding that the crimes involved in his two cases met the condition precedent of being of the same or similar character. We disagree.
Standard of Review
Analyzing a joinder issue can involve different levels of inquiry with different review standards:
" When analyzing an issue of joinder, an appellate court determines which of the three conditions precedent the district court relied on (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); whether there is substantial competent evidence to support the district court's findings of fact, using a deferential standard; whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and whether the district court abused its discretion in allowing joinder." State v. Gaither, 283 Kan. 671, Syl. ¶ 4, 156 P.3d 602 (2007).
In this appeal, we do not discern any challenge to the district court's factual findings. Rather, Cruz argues that the legal conclusion should have been that the facts did not establish that the crimes were of the same or similar character, an issue over which we will exercise unlimited review.
Additionally, Cruz contends that the district court should have exercised its discretion to deny consolidation because of the extreme prejudice created by presenting the jury with evidence from both crimes. Obviously, our review of this contention is for an abuse of discretion, and, for this portion of the analysis, we would consider whether any reasonable person would have reached the same conclusion as the trial judge. See State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) (delineating three aspects of abuse of discretion analysis), cert. denied 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
[297 Kan. 1055]Analysis
Cruz first challenges the district court's finding of the requisite condition precedent, which in this case was that the crimes were of the same or similar character. Cruz' brief recites the trial judge's explanation ...