State v. Cruz

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,847

STATE OF KANSAS,
Appellee,

v.

JASON A. CRUZ,
Appellant.


SYLLABUS 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
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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
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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.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed August 9,
2013. Affirmed.

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.

The opinion of the court was delivered by

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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
fiancée, 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
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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.

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.

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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.

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.

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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 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.
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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.

CONSOLIDATION

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 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:

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"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 (2012).

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 of its ruling, which we find most helpful to
our review:

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"This Court, of course, did preside over the trial involving the Lightning Joe's
incident. The jury determined that they could not arrive at a verdict. There was a mistrial.
That case is still pending. The [Babydolls] case does have very similar characteristics. It
was an incident that occurred in the early morning hours after a bar closes down. The
same firearm was used. Multiple shots were fired in both cases.

"The Court would also observe that with regard to the most recent case, that is,
[the Babydolls case], there certainly is evidence from the Lightning Joe's case that would
be admissible under 60-455, to wit, the identification of the defendant as being in
possession of the gun and the identification of the gun, and with regard to that the two
cases are similar and joined at the hip, so to speak, with regard to the firearm. You can't
offer evidence with regard to a gun in the [Babydolls] case without admitting evidence
that derives from the [Lightning Joe's] case, which certainly that evidence is admissible
in both cases. They are of the same or similar character and, accordingly, the Court will
order that for the purpose of proceeding forward on trial on both cases they will be
consolidated for purposes of conducting a single trial and both charges will be submitted
to the jury at that trial."

Moreover, substantial competent evidence established the following facts: Both
crimes involved patrons leaving a nightclub at closing time; both victims were accosted
and challenged in the establishment's parking lot before the patrons could reach their
respective vehicles; both victims had scant warning before being shot repeatedly and
killed with a handgun; the same weapon was used in both shootings and contained a
small amount of DNA that did not exclude Cruz as a contributor; a fellow gang member
identified Cruz as the shooter in both incidents; and both cases charged first-degree
murder and criminal possession of a firearm. If that scenario does not establish two
crimes of the same or similar nature, one would need a novelist's imagination to conjure
up one that would.

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The State points us to the similarities between the facts and nature of the charges
here and those that were presented in State v. Barksdale, 266 Kan. 498, 510, 973 P.2d
165 (1999), where this court found no abuse of discretion in the joinder of two murder
counts for a consolidated trial. In Barksdale, both murders were unsolved for almost 2
years, until a jailhouse informant told police that Barksdale had confessed to both
murders.

Barksdale argued on appeal that the murders were not similar because the first
victim was the defendant's friend who had engaged in sex with his attacker, while the
second victim was a stranger killed at the dry cleaning business where she worked and
had not been sexually assaulted. In addition to arguing that the crimes were factually
distinct, Barksdale also argued that the same evidence was not necessary in order to
prove both crimes and that only one witness would testify about both cases. 266 Kan. at
508.

Rejecting Barksdale's arguments, this court concluded that the murders were
sufficiently factually similar to warrant joinder because: (1) Robbery was the motive in
both cases, (2) the manner of both killings was substantially similar, (3) both victims
were found face down and tied with cords, and (4) both murders were committed in the
same neighborhood within 9 months of one another. 266 Kan. at 508-09. Barksdale
recognized that only one witness testified about both charges, but the court found that the
cases required the same mode of trial, the same kind of evidence, and resulted in the same
kind of punishment. 266 Kan. at 509.

Cruz offers three reasons that we should determine that his two crimes were not
of the same or similar nature: (1) The crimes occurred 17 months apart; (2) only two
witnesses had substantive evidence about both crimes; and (3) there would have been
little burden to keep the trials separate. We discern that those circumstances do not really
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go to the character of the crimes committed as much as they might impact whether it was
discreet or appropriate for the district court to try the similar crimes together.
Nevertheless, the proffered reasons are unpersuasive.

The 17-month interval between crimes in this case pales in comparison to the 4
years that passed between the two murders in State v. Cromwell, 253 Kan. 495, 512, 856
P.2d 1299 (1993), where we found joinder appropriate. See also State v. Bunyard, 281
Kan. 392, 403, 133 P.3d 14 (2006) ("[T]he time span between all three incidents occurred
within slightly over 1 year and, accordingly, the time span is not significant for severance
considerations."). Moreover, the mere passage of time does not change the fact that these
crimes can be characterized as cold-blooded murders with the same illegally possessed
handgun under strikingly similar circumstances.

The argument that only two witnesses had substantive evidence about both crimes
minimizes the fact that the two common witnesses—Hubbard, the jailhouse informant,
and Gary Miller, the tool mark examiner—were critically important to the proof of both
crimes. Moreover, in both Gaither and Barksdale, this court upheld joinder
notwithstanding that only one witness testified about both crimes in those cases. See
Gaither, 283 Kan at 687; Barksdale, 266 Kan. at 509.

Finally, we reject Cruz' argument that a separate trial would present very little
burden. A second jury would have to be called, selected, empanelled, and paid. Precious
days on an overworked court's trial docket would be utilized for a second murder trial, at
which the second jury would hear exactly the same testimony from Hubbard and Miller.
Granted, the desire to reduce the burden on the court's budget or the desire to avoid
duplication cannot trump the requirement that a criminal defendant receive a fair trial.
But one certainly cannot characterize the cost of a separate murder trial to be de minimis.

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Next, Cruz argues that, even if the condition precedent was met, the district court
abused its discretion in granting consolidation. The burden is on Cruz to establish the
abuse of discretion. See Gaither, 283 Kan. at 688; Bunyard, 281 Kan. at 403. He asserts
that by consolidating the Babydolls case, the State made evidence of gang membership
admissible, and that evidence, when coupled with the inherently harmful circumstance of
being charged with two separate murders, unfairly influenced the jury. He claims the
highly prejudicial effect of that evidence is borne out by his conviction on the 2008
murder, after the first jury could not reach a verdict.

The State counters that the jury was appropriately instructed that each crime
charged was a separate and distinct offense and must be considered independently on the
evidence and law applicable to each charge. In Gaither and Barksdale, we rejected jury
confusion arguments when the jurors were instructed to consider each charge "'separately
on the evidence and law applicable to it; uninfluenced by [their] decision as to any other
charge.'" Gaither, 283 Kan. at 687; Barksdale, 266 Kan. at 510. Appellate courts have
ascribed to the hypothetical presumption that such an instruction negates the inherently
prejudicial effect of trying a person on multiple counts. See State v. Race, 293 Kan. 69,
77, 259 P.3d 707 (2011); Gaither, 283 Kan. at 687.

But here, the notion that the jury was not unduly influenced by the gang
membership evidence or the propensity inference to be drawn from two murder charges
is supported by its verdicts. The jury acquitted Cruz of the three offenses charged in the
Babydolls matter. Sometimes, we view acquittals as compelling evidence of a jury's
ability to differentiate between charges joined for trial. See Bunyard, 281 Kan. at 402.
Here, if the jury was to make an improper use of the gang evidence and the two murder
charges with respect to the 2008 case, it would seem logical that it would have been
similarly prejudiced with respect to the 2007 Babydolls case.

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In short, Cruz has not met his burden of establishing that the district court abused
its discretion in consolidating the two cases for trial, after finding that the crimes were of
the same or similar character. Consequently, we affirm the district court's order of
consolidation.

SHOW-UP EYEWITNESS IDENTIFICATION

Cruz next argues that the district court violated his constitutional rights when it
used an improper "drive-by" lineup to identify him as the perpetrator in the 2008
Lightning Joe's homicide. He argues that the procedure used was unnecessarily
suggestive and created a substantial likelihood of misidentification.

Standard of Review

We review a challenge to an eyewitness identification as a due process
determination involving a mixed question of law and fact. We apply a substantial
competent evidence standard when reviewing the factual underpinnings of a trial court's
decision to admit or suppress an eyewitness identification and apply a de novo standard
to the ultimate legal conclusion drawn from those facts. State v. Corbett, 281 Kan. 294,
304, 130 P.3d 1179 (2006). Cruz argues that because material facts are not in dispute, our
review is de novo; however, the district court made numerous factual findings in its
ruling on the motion to suppress, and Cruz' argument focuses on the factual
circumstances underlying the identification. We, therefore, proceed under our established
mixed question of law and fact standard of review.

Analysis

Recently, we discussed the two-step process district courts follow in determining
whether an eyewitness identification is admissible evidence:
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"The first step examines whether the police procedure used to obtain the identification
was impermissibly or unnecessarily suggestive. If so, trial courts move to the second step
and consider whether there was a substantial likelihood of misidentification under the
totality of the circumstances surrounding it." State v. Mitchell, 294 Kan. 469, 476, 275
P.3d 905 (2012) (citing Corbett, 281 Kan. at 304).

Before looking at whether the procedure the police employed here was
"unnecessarily suggestive," we acknowledge an issue that we raised but did not decide in
Mitchell. There, we discussed our appellate courts' prior interchangeable use of the terms
"unnecessarily," "impermissibly," and "unduly" suggestive to describe the first step of the
process:

"We pause to note that the panel supported its holding on the photo lineup issue
by citing State v. Corbett, 281 Kan. 294, 304-05, 130 P.3d 1179 (2006), which uses the
term 'impermissibly suggestive' in describing the standard for reviewing police
eyewitness identification procedures. But see State v. Reed, 45 Kan. App. 2d 372, 379,
247 P.3d 1074, rev. denied 292 Kan. 968 (2011) (noting Kansas appellate courts
frequently use the terms 'unnecessarily suggestive' and 'impermissibly suggestive'
interchangeably and suggesting the term 'unnecessarily suggestive' more accurately
describes the Corbett standard). The Court of Appeals in Mitchell's case used yet another
term: unduly suggestive. This, at the least, hints strongly that uniformity in the
terminology may be needed. But the photo lineup issue is not before this court, so that
opportunity must wait." Mitchell, 294 Kan. at 473.

Perhaps, given no evidence that there has been any conceptual confusion about
how to perform the first step of the analysis, one might perceive that it is unnecessary to
engage in an extended discussion of the most appropriate word to use to describe
"suggestive," which is the truly operative word in these cases. Indeed, it appears that
most Kansas appellate decisions addressing the eyewitness identification issue have made
16



no conscious distinction among the terms but rather have used them interchangeably.
Nevertheless, given that the door has been opened, we will walk through it.

In concluding that "unnecessarily suggestive" most accurately describes the
standard under the first step of the process, the Reed panel opined:

"Although we believe a literal interpretation of the term 'impermissibly suggestive' is a
conclusive finding about the legality of the procedure, the Corbett court uses this
standard of suggestiveness as only the beginning of its inquiry, not its end. Specifically,
the Corbett test requires such a finding before the analysis can proceed to the second step
for a determination regarding whether the 'impermissibly suggestive' procedure was
reliable in light of the totality of the circumstances. See 281 Kan. at 304-06.

"Significantly, use of 'unnecessarily suggestive' as a standard appears to derive
from the analysis conducted by appellate courts in Kansas that recognize time is often
crucial when there is an eyewitness who can identify a suspect and delay in identification
could impede the police investigation. State v. Alires, 246 Kan. 635, 640, 792 P.2d 1019
(1990) (citing State v. Meeks, 205 Kan. 261, 266, 469 P.2d 302 [1970]). A literal
interpretation of the term 'unnecessarily suggestive' is consistent with this analysis, which
requires the court to decide whether exigent circumstances necessitated the more
suggestive procedure as opposed to use of an alternative procedure that was less
suggestive. Notably, a finding that less suggestive procedures could have been used does
not render the more suggestive procedure unreliable as a matter of law. Such a finding
means only that the court is obliged to move on to the second part of the analysis. See
Corbett, 281 Kan. at 304." State v. Reed, 45 Kan. App. 2d 372, 379-80, 247 P.3d 1074,
rev. denied 292 Kan. 968 (2011).

A review of the Alires opinion cited in Reed supports the Court of Appeals'
reasoning that exigent circumstances can necessitate a more suggestive lineup procedure.
State v. Alires, 246 Kan. 635, 640, 792 P.2d 1019 (1990). Ironically, though, Alires also
17



utilizes all three terms, "impermissibly suggestive," "unnecessarily suggestive," and
"unduly suggestive," interchangeably. 246 Kan. at 639-41.

But we are not alone in ruminating on these matters. Recently, Justice Sotomayor
recognized that the United States Supreme Court has likewise used the terms
"'impermissibly,'" "'unnecessarily,'" and "'unduly'" suggestive interchangeably. Perry v.
New Hampshire, ___ U.S. ___, 132 S. Ct. 716, 733 n.3, 181 L. Ed. 2d 694 (2012)
(Sotomayor, J., dissenting). Justice Sotomayor found that the interchangeable use of the
terms "reinforce[s] our focus not on the act of suggestion, but on whether the
suggestiveness rises to such a level that it undermines reliability." 132 S. Ct. at 733 n.3
(Sotomayor, J., dissenting). The Perry majority did not address Justice Sotomayor's
discussion of the terms; however, the majority used the term "unnecessarily suggestive"
when not quoting prior decisions. 132 S. Ct. at 724-26.

We conclude this interlude by adopting the term "unnecessarily suggestive" for
use in the first step of the eyewitness identification analysis, based upon its literal
meaning and its most recent use by our highest court. We do not perceive, however, that
this clarification will meaningfully impact the substantive analysis in this area of the law.

Turning to the analysis, we would characterize the procedure employed here as
falling within the conduct commonly referred to as a one-person show-up identification,
which is essentially one person, almost always in custody, sometimes in handcuffs, being
identified "by an individual who usually was the victim of a crime a short time before the
identification." State v. Hunt, 275 Kan. 811, 815, 69 P.3d 571 (2003); see also Alires, 246
Kan. at 636, 640-41 (discussing show-up identification caselaw even though witness was
driven by two suspects on side of road); State v. Lawson, 25 Kan. App. 2d 138, 142, 959
P.2d 923 (1998) (refusing to distinguish between one-person and two-person show-up
lineups). Specifically, Officer Williamson took Childers to the location where Smith's
18



Escape had been stopped and brought the suspects into her view, one at a time, for her to
identify. Cruz was in handcuffs.

The district court found that the identification procedure used in this case was not
"impermissibly suggestive." The court did note that the fact that Childers had been told
that a car had been stopped with people who may have been involved might be
suggestive. But the court ultimately opined:

"Focusing on the facts of this case, the three individuals were brought out one by
one, individually, within a 50 foot distance from the witness. There was no conversation
from Officer Williamson or any of the others that in any way provided any clues or hints
as to any of the identifications. Officer Williamson himself had no knowledge of the
order in which the three people were going to be brought out."

We find no fault with the district court's determination that Officer Williamson
conducted the "one-person show-up" identification in as fair a manner as was possible.
The problem lies with the procedure itself. As our United States Supreme Court said in
Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967): "The
practice of showing suspects singly to persons for the purpose of identification, and not
as part of a lineup, has been widely condemned." In Stovall, the defendant was brought to
the witness' hospital room in handcuffs and surrounded by police officers; he was the
only African-American in the room. Although the Court did not explicitly find the
procedure to be unnecessarily suggestive, it would later describe the Stovall one-person
show up to be "undeniably suggestive." See Perry, 132 S. Ct. at 724.

The State argues that the show-up identification was not unnecessarily suggestive
because we have previously "approved one-on-one confrontations shortly after the
commission of an offense, recognizing that time is crucial when there is an eyewitness
who can identify a suspect and that any delay in identification could impede the police
19



investigation." Alires, 246 Kan. at 640. That argument collapses the two steps of our
analysis. Alires allowed the identification to stand because the show up did not violate
due process under the totality of circumstances in that case. 246 Kan. at 641. The United
States Supreme Court in Stovall recognized that exigent circumstances can necessitate an
undeniably suggestive show-up identification where the totality of the circumstances
indicate the absence of a due process violation. There, police did not know if the
hospitalized witness would live and it was impossible for the witness to go to the jail.
Stovall held that the police, faced with the responsibility of identifying the attacker and
the need for immediate action, undertook the only procedure possible. Stovall, 388 U.S.
at 302. Recent Kansas cases have been decided on the second step, i.e., have found the
procedure to be unnecessarily suggestive under the first step. See, e.g., Hunt, 275 Kan. at
816-17 (unnecessarily suggestive identification analyzed on second step); see also Reed,
45 Kan. App. 2d at 381 (finding procedure unnecessarily suggestive when police escorted
robbery victim to identify suspect in back seat of patrol car); State v. Maybin, 27 Kan.
App. 2d 189, 203, 2 P.3d 179 (noting that court might conclude that identification
procedure used by police was unduly suggestive but proceeding to second step of
analysis), rev. denied 269 Kan. 938 (2000); Lawson, 25 Kan. App. 2d at 142 (finding
procedure unnecessarily suggestive where store clerk who had been robbed identified
defendant who was escorted from police car wearing handcuffs). But see State v.
Galyardt, 44 Kan. App. 2d 729, 735, 240 P.3d 619 (2010) (finding that it was not
unnecessarily suggestive for police to drive witness to location where burglary suspect
was stopped and not arrested), rev. denied June 13, 2012.

Under the facts of this case, we conclude that the procedure used by the police was
unnecessarily suggestive. Williamson told Childers that the police had stopped a vehicle
whose occupants might be involved in her fiancé's murder. Williamson drove Childers to
the scene of the stop where Cruz was individually paraded in front of Williamson's patrol
car in handcuffs and spotlighted for Childers to identify. It would be difficult for a
20



witness to miss the suggestion in that scenario. Moreover, the State does not explain what
"exigent circumstances" existed that "necessitated the more suggestive procedure as
opposed to use of an alternative procedure that was less suggestive." Reed, 45 Kan. App.
2d at 379; cf. Stovall, 388 U.S. at 302 (necessity for suggestive procedure found where
witness hospitalized and unable to go to jail for lineup and police not certain that witness
would survive). The State does not claim, nor do we find on our own, that the show-up
identification was necessary to provide law enforcement with probably cause to arrest
Cruz.

But when the police use an unnecessarily suggestive procedure, "suppression of
the resulting identification is not the inevitable consequence." Perry, 132 S. Ct. at 724;
see also Corbett, 281 Kan. at 304-05. "[T]he second step requires an analysis of whether
the [unnecessarily] suggestive procedure led to a substantial likelihood of
misidentification." 281 Kan. at 304. The critical element is the reliability of the
identification. 281 Kan. at 305. "If the identification bears some indicia of reliability and
there is not a substantial likelihood of irreparable misidentification, the jury must decide
whether the evidence is reliable enough to support the defendant's conviction." 281 Kan.
at 305 (citing Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140
[1977]).

Under that second step, we consider the totality of the circumstances surrounding
the identification, looking particularly at a number of specific factors which include such
things as the witness' opportunity to view the criminal during the incident, the accuracy
of the witness' first description, the time elapsed between the incident and the later
identification, and the nature of the event being observed and the likelihood that the
witness would perceive, remember, and relate it correctly. Cf. Mitchell, 294 Kan. at 478
(citing Corbett, 281 Kan. at 305). Here, Cruz concedes that Childers had the opportunity
to view Cruz during the event. In fact, at the suppression hearing, Officer Williamson
21



testified that when he arrived at Lightning Joe's, he approached Childers and her aunt
because they had blood on them which had indicated to him that those witnesses had
been close to the scene of the shooting.

Perhaps more important than Childers' proximity to Cruz was the fact that she was
able to observe him throughout the entire encounter. Initially, the contact was
nonconfrontational, allowing her to see Cruz through a lens unclouded by adrenaline-
rushed fear or panic. Then, she was present during the verbal argument between McNair
and Barnett, which could well serve to heighten one's focus. She saw Cruz go to the
Escape and return with a gun; she watched Smith unsuccessfully attempt to stop Cruz
from joining the fight with the gun; she saw that Cruz was pointing the gun at Barnett but
having problems getting the gun to fire as he was walking towards Barnett; she observed
the first shot from 15 to 20 feet away and continued to watch Cruz as he shot the fallen
Barnett from above; and, finally, she was able to accurately describe how Cruz, Smith,
and McNair ran to the Escape and left the nightclub parking lot.

The district court also found that Childers was not only able to identify Cruz, but
she was able to describe the context and role the other two individuals with Cruz played
in the confrontation leading to the shooting; that Childers did not hesitate or equivocate in
identifying Cruz; that the identification took place "within moments, if not an hour"; and
that while Childers was initially upset, she calmed down as time progressed and there
was no indication that Childers was still suffering from an emotional state that would
cause her to misidentify a suspect at the time she went to the location of the vehicle stop.
We find that the district court's findings were supported by substantial competent
evidence, and we will not reweigh that evidence on appeal.

Furthermore, we need to remain cognizant that Cruz' argument that Childers'
identification testimony was influenced by the procedure employed to obtain her initial
22



identification is, fundamentally, a challenge to the weight of that evidence. Under
ordinary circumstances, a defendant can challenge the weight that should be attributed to
a witness' identification through "'vigorous cross-examination and persuasive argument
by defense counsel dealing realistically with the shortcomings and trouble spots of the
identification process.'" Corbett, 281 Kan. at 306 (quoting State v. Warren, 230 Kan. 385,
395, 635 P.2d 1236 [1981]). Here, Cruz took full advantage of his opportunity to
vigorously cross-examine Childers. Considering the totality of the circumstances, we
conclude that Childers' identification bore indicia of reliability and did not create a
substantial likelihood of irreparable misidentification; therefore, the district court did not
err in allowing the jury to decide whether the evidence was believable. See Mitchell, 294
Kan. 469, Syl. ¶ 1 (once district court determines eyewitness identification is admissible
evidence, jury decides whether it is reliable enough to support defendant's conviction). In
other words, the district court did not violate Cruz' right to due process by admitting
Childers' identification evidence.

EYEWITNESS IDENTIFICATION JURY INSTRUCTION

Cruz argues that the district court erred in instructing the jury on eyewitness
identification with PIK Crim. 3d 52.20, because that pattern instruction at the time
directed the jury to consider the degree of certainty demonstrated by a witness as a factor
in deciding the accuracy of the identification. We agree that "[j]urors should not be
instructed 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." Mitchell, 294 Kan. 469, Syl. ¶ 4.
But we find that Cruz has not carried his burden to convince us that the instructional error
was clearly erroneous under the facts of this case.

23



Standard of Review

Cruz did not object to the eyewitness identification jury instruction that was given
by the district court. Therefore, our standard of review is governed by K.S.A. 22-3414(3)
and State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012). In Williams, we
recognized that K.S.A. 22-3414(3) creates a procedural hurdle for a party that fails to
object to or request a jury instruction:

"K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on
appeal. It provides that no party may assign as error a district court's giving or failure to
give a particular jury instruction, including a lesser included crime instruction, unless: (a)
that party objects before the jury retires to consider its verdict, stating distinctly the
matter to which the party objects and the grounds for objection; or (b) the instruction or
the failure to give the instruction is clearly erroneous. If an instruction is clearly
erroneous, appellate review is not predicated upon an objection in the district court." 295
Kan. 506, Syl. ¶ 3.

The determination of whether an instruction is clearly erroneous employs a two-
step process. First, "the reviewing court must . . . determine whether there was any error
at all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record." 295 Kan. 506, Syl. ¶ 4. If error is found, then we proceed to the second
step of assessing whether we are 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." 295 Kan. 506, Syl. ¶ 5; see also State v. Herbel, 296 Kan. 1101, 1121, 299
P.3d 292 (2013).

24



Analysis

The instruction under attack in this appeal was taken from PIK Crim. 3d 52.20 and
recited as follows:

"The law places the burden upon the State to identify Mr. Cruz. The law does not
require Mr. Cruz to prove he has been wrongly identified. In weighing the reliability of
eyewitness identification testimony, you first should determine whether any of the
following factors existed and, if so, the extent to which they would affect accuracy of
identification by an eyewitness. Factors you may consider are:
1. The opportunity the witness had to observe. This includes any physical
condition which could affect the ability of the witness to observe, the length of the time
of observation, and any limitations on observation like an obstruction or poor lighting;
2. The emotional state of the witness at the time including that which might be
caused by the use of a weapon or a threat of violence;
3. Whether the witness had observed the defendant on earlier occasions;
4. Whether a significant amount of time elapsed between the crime charged and
any later identification;
5. Whether the witness ever failed to identify the defendant or made any
inconsistent identification;
6. The degree of certainty demonstrated by the witness at the time of any
identification of the accused; and
7. Whether there are any other circumstances that may have affected the accuracy
of the eyewitness identification." (Emphasis added.) See PIK Crim. 3d 52.20.

Cruz complains that the instruction should not have included the sixth factor—the
witness' degree of certainty. Subsequent to the filing of briefs in this case, this court
discussed the degree of certainty factor in three opinions, albeit neither party has filed a
Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49), letter of additional authority
addressing these cases. See Mitchell, 294 Kan. 469, State v. Anderson, 294 Kan. 450, 276
P.3d 200 (2012), and State v. Marshall, 294 Kan. 850, 281 P.3d 1112 (2012).
25




In Mitchell, we reaffirmed that a trial court is required to issue a cautionary
instruction when an eyewitness' identification testimony is critical to the prosecution's
case but disapproved the degree of certainty factor in such a jury instruction. See 294
Kan. at 478-82. Under Mitchell's holding, a trial court errs by instructing the jury on the
reliability of eyewitness identification by using PIK Crim. 3d 52.20 without omitting the
degree of certainty factor. Marshall, 294 Kan. at 867. Although this point was not settled
at the time of Cruz' trial and Cruz did not object to the giving of PIK Crim. 3d 52.20
without modification, the same reasons that existed for finding error in Mitchell,
Anderson, and Marshall apply in this case. Therefore, we hold that the district court erred
in including the degree of certainty factor when instructing Cruz' jury on eyewitness
identification. See Marshall, 294 Kan. at 867.

Because there was error, this court must next determine whether the error requires
reversal of Cruz' convictions. See Williams, 295 Kan. 506, Syl. ¶ 1. Because he did not
object at trial, Cruz faces the high burden of convincing us that the inclusion of the
degree of certainty factor in the eyewitness identification cautionary instruction was
clearly erroneous, i.e., that we are firmly convinced that the jury would have reached a
different verdict had the instruction not included the erroneous language. See 295 Kan.
506, Syl. ¶ 5.

In Marshall, like here, the clearly erroneous standard applied. Nevertheless,
Marshall began with the same initial inquiries utilized in the harmless error analysis in
Mitchell and Anderson, to-wit: (1) Was the identification crucial to the State's case? and
(2) Was there an opinion of certainty stated? Marshall, 294 Kan. at 867-68. Here, just as
in Marshall, we find that the answer to both questions is "yes."

26



With respect to the first question, the shooter's identity was the main issue the
State needed to prove; Childers' eyewitness testimony was the most concrete evidence
establishing that fact; and both sides acknowledged in closing arguments that the
shooter's identity was the disputed issue for the jury to decide. Childers' identification
was not the only evidence in the State's case, but it was critically important, if not crucial.
On the second inquiry, there was certainty evidence submitted to the jury. Officer
Williamson testified that when Childers identified Cruz at the scene, she did not hesitate
or qualify her remarks in any way. Childers told the jury that she was "a hundred percent
positive" that Cruz was the man who killed her fiancé.

An affirmative answer to both of those two questions simply means that our
inquiry has not ended, as it would with a "no" response to either query. See Marshall,
294 Kan. at 868 (negative answer to either question ends analysis because jury could not
have been misled by degree of certainty factor in instruction). The next step is to
"consider the impact of the jury instruction in light of the entire record and additional
considerations." 294 Kan. at 868. Marshall concluded that other procedural safeguards
mitigated the instruction error and that other evidence linked Marshall to the crime so that
the instruction error was not clearly erroneous. 294 Kan. at 869-70.

The other procedural safeguards present in Marshall included a rigorous cross-
examination of the identifying witness and a closing argument that "methodically
reminded the jury of all the inconsistencies." 294 Kan. at 869. The same was true here.
Defense counsel cross-examined Childers about inconsistencies in her testimony. In
closing argument, defense counsel discussed factors that detracted from the reliability of
the identification. The defense was able to use Childers' degree of certainty against her by
pointing out that, in addition to being positive that Cruz was the shooter, she had said that
she was positive that Cruz was in the back seat of the vehicle, when other evidence
contradicted that testimony. Defense counsel argued to the jury: "The degree of certainty
27



demonstrated. Yep, she says that 100 percent, just like she's 100 percent or just like she's
positive that [Cruz] gets into the back seat." Defense counsel also pointed out that other
witnesses taken to the car stop were unable to identify Cruz as the shooter. Defense
counsel further reminded the jury of the beyond a reasonable doubt standard of review
and argued that the evidence did not meet this standard.

Likewise, as in Marshall, although Childers' identification of Cruz was the
strongest evidence linking Cruz to the crime, it was not the only evidence. The State
established that Cruz had been at Lightning Joe's on the night in question; that Smith saw
Cruz with a gun during the fight that led to Barnett's death; that the gun used in the
homicide was found underneath the Escape's passenger seat where Cruz was riding
approximately 9 minutes after the shooting; that Cruz could not be excluded as a
contributor to the DNA profile on the gun; that the same gun was used in both homicides;
and that Hubbard testified that Cruz confessed to using the same gun in both homicides.
Consequently, we are not firmly convinced that, if the eyewitness identification
cautionary instruction had not included the direction to consider degree of certainty in
determining the reliability of the identification, the jury would have reached a different
verdict, i.e., declined to convict him. Therefore, the instruction error was not clearly
erroneous.

GANG AFFILIATION EVIDENCE

Cruz next complains that the State presented the gang evidence for no other reason
than to place him in a bad light. Therefore, he contends, the trial court erred in admitting
the gang evidence. We disagree.

28



Standard of Review

In State v. Peppers, 294 Kan. 377, 386-87, 276 P.3d 148 (2012), we noted that the
admissibility of gang affiliation evidence is subject to different standards of review,
depending upon the precise issue that is in play:

"Gang affiliation evidence is admissible if relevant. [Citations omitted.] Relevant
evidence is defined by statute as evidence that is both material and probative. K.S.A. 60-
401(b). We review whether evidence is material under a de novo standard. [Citation
omitted.] Materiality addresses whether '"a fact . . . has a legitimate and effective bearing
on the decision of the case and is in dispute."' State v. Reid, 286 Kan. 494, 505, 186 P.3d
713 (2008) (quoting State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 [2007]). In other
words, a fact is material if it is '"significant under the substantive law of the case and
properly at issue."' Reid, 286 Kan. at 505 (quoting [State v.] Goodson, 281 Kan. 913, 922,
135 P.3d 1116 [2006]). We review whether evidence is probative under an abuse of
discretion standard. [Citation omitted.] Evidence is probative if it has '"any tendency in
reason to prove any material fact."' State v. Houston, 289 Kan. 252, 261, 213 P.3d 728
(2009) (quoting K.S.A. 60-401[b]). 'For evidence of gang affiliation to be admissible
there must be sufficient proof that gang membership or activity is related to the crime
charged.' State v. Tatum, 281 Kan. 1098, Syl. ¶ 3, 135 P.3d 1088 (2006). Even if evidence
is deemed relevant, it may be excluded if it is more prejudicial than probative. [Citation
omitted.] We review a district judge's weighing of prejudice and probative value for an
abuse of discretion. [Citation omitted.]"

Analysis

At trial, the prosecutor questioned Hubbard about his relationship with Cruz
through their common gang membership. Cruz objected and was granted a continuing
objection; therefore, this issue has been preserved for appeal. See State v. Goodson, 281
Kan. 913, 920, 135 P.3d 1116 (2006).

29



Hubbard testified that he and Cruz grew up in the same neighborhood and both
joined the Folk gang. Over the years, the two men and their families socialized together.
Hubbard related that Cruz told him about the Babydolls homicide the day after it
happened but that he had not gone to the police at that time because as a gang member,
he was supposed to "keep [his] mouth closed."

In 2009, while Hubbard and Cruz were both in the same jail pod, Cruz told
Hubbard he used the same gun in both the 2008 Lightning Joe's murder and the 2007
Babydolls murder, expressing concern that the police would discover this connection.
Hubbard then informed the police that Cruz committed the Babydolls murder and told
them to trace the gun. In exchange for testifying truthfully at Cruz' trial, Hubbard was
granted a plea arrangement in his own case.

Cruz argues that prior appellate cases have limited the admissibility of gang
evidence to cases involving certain circumstances. See, e.g., Goodson, 281 Kan. at 922
("[G]ang evidence may be material and, therefore, relevant when the evidence provides a
motive for an otherwise inexplicable act, forms a part of the events surrounding the
commission of the crime, or shows witness bias."). As this court recently clarified in
Peppers, however, "gang evidence need not fall into specific categories that happened to
arise in previous cases in order to be relevant and admissible." 294 Kan. at 390. Peppers
further explained: "Although certain of our earlier cases on gang evidence arose in
particular circumstances, a list of those circumstances does not exhaust the possibilities
when gang evidence is relevant and permissible." 294 Kan. at 389. Peppers was decided
after the briefs were filed in this case, and neither party has filed a Rule 6.09(b) letter of
additional authority addressing it.

The State urges us to find that the district court was correct in finding that the
portion of Hubbard's testimony that connected Cruz to his gang was relevant to Hubbard's
30



credibility. Specifically, the gang affiliation evidence could explain why Cruz would trust
Hubbard with such sensitive information and why Hubbard would preserve Cruz' initial
secret about the Babydolls incident for 29 months. Further, the gravity of betraying a
fellow gang member puts Hubbard's decision to come forward in a different context than
the ordinary jailhouse snitch.

Cruz argues that the act of confessing crimes to another is not practiced
exclusively among gang members; defendants also confess crimes to friends, family,
other inmates, or even the police. But, as Hubbard suggested, gangs often have a code of
silence that makes confessing to a gang affiliate much less risky than sharing secrets with
outsiders. In that context, the gang affiliation evidence in this case was germane to the
question of whether Cruz shared his secret with Hubbard.

In a different context, we have held that evidence of bias resulting from gang
membership is admissible. State v. Ross, 280 Kan. 878, 886, 127 P.3d 249 (2006)
(quoting State v. Knighten, 260 Kan. 47, 54, 917 P.2d 1324 [1996]) ("'"Proof of bias is
almost always relevant because the jury, as finder of fact and weigher of credibility, has
historically been entitled to assess all evidence which might bear on the accuracy and
truth of a witness' testimony."'"). See also Knighten, 260 Kan. at 54 (discussing United
States v. Abel, 469 U.S. 45, 49, 105 S. Ct. 465, 83 L. Ed. 2d 450 [1984], and finding that
"[t]he probative value of evidence of gang membership as it pertains to witness bias is
high"). Here, the gang affiliation evidence was used to bolster Hubbard's testimony,
rather than to impeach him as biased.

Although not cited by Cruz, 4 months after Ross, we found that when the
testifying gang member is implicating the defendant, rather than protecting him, the
evidence is not admissible as evidence of bias. Goodson, 281 Kan. at 923. In Goodson,
the defendant and Thomas attacked and robbed two people who were walking down the
31



street. During the robbery, one of the victims was stabbed to death. Thomas entered into a
plea for his role in the crime and testified against the defendant at his trial. The State
introduced evidence of the defendant and Thomas' gang affiliation to establish the
relationship between the two men. We recognized the precedent of allowing evidence of
gang membership to show a relationship between witnesses; however, we found that
when the gang member is testifying against the defendant and the questions are not
framed in a manner to reveal bias or loyalty, the evidence is not relevant to prove a
material fact. 281 Kan. at 923-24.

Goodson is distinguishable because the witness in that case was testifying from
first-hand knowledge as an admitted participant in the crime, i.e., it was a classic situation
of one codefendant cutting a deal at the expense of another codefendant. The evidence of
gang membership added nothing to the scenario. Moreover, it was unlikely that the jury
would think that a witness would make up testimony that would result in that witness also
being convicted of a crime, i.e., evidence of gang membership was unnecessary to make
the witness' testimony more believable. Here, in contrast, Hubbard's testimony that Cruz
confessed to him was not a statement against Hubbard's interest. To the contrary, the
testimony had no down side for Hubbard. Instead, the testimony begged the question of
why Cruz would choose to confess to Hubbard, a question that defense counsel asked on
cross-examination. In short, the credibility of Hubbard's testimony that Cruz confessed to
the crimes was a materially disputed fact in this case, and the gang affiliation evidence
was relevant to that issue. The district court did not err in admitting the evidence.

CUMULATIVE ERROR

Cruz finally argues that even if no individual trial error is sufficient to support a
reversal of his convictions, the cumulative effect of multiple errors was so great as to
require reversal. The test is "'whether the totality of circumstances substantially
32



prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be
found under this cumulative effect rule, however, if the evidence is overwhelming against
the defendant.'" State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State
v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 [2009]).

Standard of Review

By necessity, if this court must apply a totality of the circumstances test, we must
review the entire record and engage in an unlimited review. Cf. State v. Ward, 292 Kan.
541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis performed de novo), cert.
denied 132 S. Ct. 1594 (2012).

Analysis

For errors to have a cumulative effect that transcends the effect of the individual
errors, there must have been more than one individual error. State v. Backus, 295 Kan.
1003, 1017, 287 P.3d 894 (2012). Above, we found that the district court erred by
instructing the jury to consider the degree of certainty as a factor for determining the
accuracy of the eyewitness identification testimony. We also found that the police used
an unnecessarily suggestive procedure to identify Cruz, albeit we held that Childers'
identification bore indicia of reliability and did not create a substantial likelihood of
irreparable misidentification. Arguably, then, more than one error exists which could be
accumulated.

We recognize that a cumulative error analysis is to some degree subjective. See
Edwards, 291 Kan. at 553. Moreover, in this instance, the errors give us pause because
they were related to the same ultimate issue of the reliability of Childers' eyewitness
identification of Cruz. But the same reasons that led us to find that the individual errors
33



were not reversible lead us to be firmly convinced beyond a reasonable doubt that the
result of this trial would have been no different without the errors.

There was inculpatory evidence other than Childers' eyewitness identification
establishing that Cruz was at the scene of the 2008 Lightning Joe's murder holding a gun;
that the gun used in the 2008 homicide was found underneath the Escape's passenger seat
where Cruz was riding approximately 9 minutes after the shooting; that Cruz could not be
excluded as a contributor to the DNA profile on the gun; that the same gun was used in
both homicides; and that Hubbard testified that Cruz confessed to using the same gun in
both homicides. Moreover, as we discussed above, the circumstances of Childers'
observation of Cruz provided indicia of reliability mitigating the unnecessarily suggestive
procedure employed.

As we have recognized for decades, "[a] defendant is entitled to a fair trial but not
a perfect one, for there are no perfect trials." State v. Bly, 215 Kan. 168, 178, 523 P.2d
397 (1974). Although a close call, the totality of the circumstances convince us that Cruz
was not denied his right to a fair trial.


Affirmed.