Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge.
BY THE COURT
1. A district court's decision to grant a continuance under K.S.A. 22-3402(5) is reviewed for an abuse of discretion.
2. Under K.S.A. 22-3402(5)(c), a district court may grant a continuance if (1) material evidence is unavailable, (2) reasonable efforts have been made to procure that evidence, and (3) reasonable grounds exist to believe the evidence can be obtained and trial can begin within the next 90 days.
3. Evidence is " material" for purposes of K.S.A. 22-3402(5)(c) when the evidence may have a legitimate and effective bearing on the decision of the case, i.e., when the evidence has the potential to inculpate or exculpate the defendant.
4. When a defendant fails to object to an instruction, an appellate court reviews the alleged instructional error under the clear-error rule of K.S.A. 22-3414(3).
5. To determine whether a given instruction was clearly erroneous, an appellate court first determines whether the instruction was erroneous. This is a legal question subject to de novo review. If error is found, the appellate court determines whether reversal is required. Reversal is required only if the reviewing court is firmly convinced the jury would have reached a different verdict absent the error. The appellate court exercises unlimited review over the reversibility determination and, in doing so, examines the entire record as a whole. The defendant bears the burden of establishing clear error under K.S.A. 22-3414(3).
6. A trial court errs when it includes a " degree of certainty" factor among the factors to be considered in instructing the jury pursuant to PIK Crim. 3d 52.20 regarding the reliability of eyewitness identification.
7. When the jury is improperly instructed to consider the degree of certainty demonstrated by an eyewitness who has identified the accused, an appellate court first considers whether the eyewitness' identification was crucial to the State's case and whether the witness stated an opinion of certainty. If the answer to either question is no, the error does not constitute clear error. If, however, the answer to both questions is yes, the appellate court then considers the impact of the jury instruction in light of the entire record as a whole and further considers whether other procedural safeguards mitigated the effect of the erroneous instruction.
8. Procedural safeguards mitigating the improper inclusion of the degree of certainty factor in an eyewitness identification jury instruction include, but are not limited to, the defendant's constitutional right to confront the witnesses against him or her, the defendant's constitutional right to effective assistance of counsel who can expose the flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of such testimony during opening and closing arguments, eyewitness-specific jury instructions that warn the jury to use care in appraising eyewitness identification evidence, and the constitutional requirement that the State prove every element of the crime beyond a reasonable doubt.
Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Jennifer L. Myers, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
[297 Kan. 1226] MORITZ, J.
Donnell Dobbs directly appeals his conviction of first-degree premeditated murder, attempted
first-degree premeditated murder, and criminal possession of a firearm. Dobbs contends the district court violated his statutory right to a speedy trial in granting the State's request for a continuance. Dobbs also argues he is entitled to a new trial because the district court gave a clearly erroneous eyewitness identification instruction. We reject both of Dobbs' claims and affirm his convictions.
[297 Kan. 1227]Factual and Procedural Background
In 2008, Dobbs walked into TJ's Barbershop at the intersection of 13th Street and Washington Boulevard in Kansas City, Kansas, with an assault rifle and opened fire. Three men inside the shop ran out the front door and into a nearby wooded area as Dobbs followed his apparent targets, Muryel Josenberger and Mario Mitchell, out the back door.
Dobbs shot both men, killing Josenberger and severely wounding Mitchell, then left the scene in a gray or silver Monte Carlo driven by a second man. Mitchell told the first police officer who arrived after the shooting that two unknown black men walked into the shop and began shooting. Mitchell was transported to Truman Medical Center where he was treated for 12 gunshot wounds and remained for about 1 month.
Twelve days after the shooting, Mitchell identified Dobbs as the gunman and Casey Ellis as the driver of the getaway car. Two days later, the State filed a joint complaint charging Dobbs and Ellis with first-degree premeditated murder and attempted first-degree premeditated murder and additionally charging Dobbs with criminal possession of a firearm. The following facts were developed at Dobbs and Ellis' joint trial.
The barbershop's owner, Anthony Jackson, testified that on the day of the shooting, he was facing the back of the shop when he heard Mitchell say, " '[O]h shit,'" and saw him run toward the back door. Jackson turned around and saw a man with an assault rifle come through the front door and move toward the back of the shop. Another barber at the shop, Damon Campbell, also saw a man walk into the shop with a " long gun."
Jackson and Campbell testified they ran out the front door of the shop and into a nearby wooded area as the gunman moved toward the back of the shop and began shooting. At some point, Jackson heard the sounds of screeching tires and a fast-moving vehicle. When Jackson and Campbell returned to the shop, they could see that Josenberger and Mitchell had been shot and were lying on the ground outside the back door.
Jackson and Campbell both testified the gunman wore a hat and had a bandana or scarf over his face covering the area under the [297 Kan. 1228] gunman's eyes. Jackson did not recall the color of the hat or scarf, but Campbell testified they were both blue. Sometime after the shooting, Jackson and Campbell each viewed several photographs of potential suspects, but neither man could identify the gunman.
Diana Union testified she was driving toward the intersection of 13th Street and Washington Boulevard when she saw two men running into a wooded area to the west of TJ's Barbershop. As Union approached the barbershop parking lot, a gray Monte Carlo exiting the parking lot nearly collided with Union's vehicle. Union could see a man holding a gun out the passenger-side window. Union described the gun as black with " holes in it around the barrel part of it . . . [t]he way machine guns look." Union stopped at a nearby friend's home where her friend called 911 and reported the incident.
Bobbie Montiel testified she was in her front yard near 14th Street and Washington Boulevard when she heard screaming and gunshots. Montiel grabbed her children and ran to the side of her house where she watched " a silver Impala looking car" or Monte Carlo going westbound on Washington. Montiel heard between 12 and 15 gunshots and assumed the gunfire originated from the silver car because the passenger door was open as the car drove by. Montiel
saw two black men inside the car, but she could not identify either man. Montiel immediately called 911.
The first officer to respond, Officer Glenn Jay Carter, found Mitchell and Josenberger lying on the ground outside the barbershop. Josenberger was dead and Mitchell was screaming. In response to questioning from Carter, Mitchell said he was getting a haircut when two guys came in and started shooting. However, Mitchell told Carter he did not know who shot him. According to Carter, Mitchell was coherent but was primarily concerned with getting medical attention.
Mitchell testified at trial regarding his prior relationship with Dobbs and his recollection of the shooting and events following the shooting. Mitchell, who was 23 years old at the time of trial in 2009, testified he went to high school with Dobbs and Ellis and had known them since the ninth or tenth grade. Mitchell identified [297 Kan. 1229] both defendants in the courtroom and ...