State v. Dobbs

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,820


STATE OF KANSAS,
Appellee,

v.

DONNELL A. DOBBS,
Appellant.


SYLLABUS 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.

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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.
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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.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed September
20, 2013. Affirmed.

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.

The opinion of the court was delivered by

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.
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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."

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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 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.
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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 both
defendants in the courtroom and said he had been "cool" with Ellis in high school until
Ellis began a friendship with Dobbs.

Mitchell testified he was sitting in a chair at TJ's Barbershop getting a haircut
when he saw Dobbs walk through the door. Mitchell testified Dobbs wore a hat on his
head and a bandana on his face and Mitchell could see only the space around his eyes.
Mitchell could not recall the color of the hat or the bandana, nor could he recall the
clothing worn by Dobbs. According to Mitchell, Dobbs carried some kind of assault rifle,
probably an AK-47 or AR-15.

Upon seeing the gun, Mitchell took off running and told Josenberger to run.
Mitchell followed Josenberger out the back door of the barbershop. Mitchell heard 12 or
13 shots and was shot at least once before stumbling out the door. Outside, Mitchell saw
Josenberger lying on the ground and ran past his body before being "shot some more"
and falling to the ground.

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Dobbs then approached Mitchell, stood over him, and attempted to shoot him
again. Mitchell heard a "click, click, click," and he assumed Dobbs' gun was empty.
Mitchell testified that by that point, the bandana had fallen from Dobbs' face and Mitchell
got a good look at Dobbs as he stood over him. Mitchell testified he had "[n]o doubt" that
Dobbs was the gunman.

After Mitchell heard the gun click, he closed his eyes so Dobbs would believe he
was dead. When Dobbs ran off, Mitchell opened his eyes and saw Dobbs get into a
Monte Carlo that Mitchell recognized as belonging to Dobbs' brother. Mitchell could see
Casey Ellis driving the Monte Carlo, and he watched it go west on Washington
Boulevard.

Mitchell recalled talking to an officer about 5 minutes after the Monte Carlo drove
off and asking for an ambulance. However, he could not recall telling the officer that two
men entered the shop and started shooting. Mitchell also testified he identified Dobbs and
Ellis from two separate photo lineups during a subsequent interview with detectives.

On cross-examination, defense counsel attempted to impeach Mitchell's
identification of Dobbs and Ellis, pointing out that Mitchell made various statements to
detectives explaining how he had been able to identify Dobbs and that he used uncertain
language in his identifications, including indicating the gunman "looked like" Dobbs.
Defense counsel also emphasized that Mitchell made inconsistent statements regarding
whether Dobbs wore a hat on the day of the shooting and about whether the bandana
covered Dobbs' nose. Finally, in response to defense counsel's questioning regarding
prior convictions involving truth or veracity, Mitchell conceded he had two juvenile
adjudications, one for burglary and one for theft.

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On redirect, Mitchell clarified that although he used various statements to describe
how he knew or recognized Dobbs and Ellis, he did not intend to imply that he was
uncertain about his identification of either defendant.

Claude Harper, a crime scene investigator, processed and videotaped the crime
scene, took photographs, and collected evidence. Harper identified a photograph of a
blood smear on the sidewalk in front of the barbershop and two swabs taken from that
blood smear. Harper also identified other evidence found at the scene, including a bloody
earring, several fired cartridges, a bullet fragment, and a live .223 caliber Remington
PMC cartridge. Harper testified that based on his training and experience, all of the
cartridges discovered at the scene were consistent with ammunition used in a military-
type rifle such as an AR-15 or M-16.

Detective Bryan Block testified he obtained DNA samples from Dobbs, Mitchell,
and Josenberger, but that testing of the samples did not link Dobbs to the crime scene.
Testing revealed that Mitchell's blood matched the blood smear on the sidewalk in front
of the barbershop and the blood on the earring found at the scene.

Based on witness reports, Block located the vehicle used in the homicide and
identified the owner of the vehicle as Dobbs' brother, Dion Dobbs. Block testified
officers found some type of "magazine pouch" in the Monte Carlo and that the pouch
could be used to hold a gun magazine.

Block interviewed Mitchell at the hospital 12 days after the shooting. According to
Block, although Mitchell was in pain and on medication, he was coherent and able to
talk. During the interview, Mitchell identified Dobbs as the gunman and Ellis as the
driver, and he seemed certain about both identifications.

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Regarding the firearm charge, Dobbs stipulated he had a prior felony conviction
and was prohibited from possessing a firearm on the date of the shooting.

During the instruction conference, the State objected to the eyewitness
identification instruction, arguing it was unnecessary and inappropriate because Mitchell
knew both defendants. The court disagreed, reasoning that Mitchell initially told police
he did not know the men involved in the shooting. The court asked defense counsel for
any comments, additions, or deletions to the instructions, to which defense counsel
responded: "We're satisfied with these instructions."

During closing arguments, the prosecutor acknowledged that identity was a
disputed issue. She also reminded the jury that Mitchell was the only person who had the
opportunity to see Dobbs' face and that Mitchell knew both defendants from high school.
Finally, the prosecutor pointed out that other witnesses corroborated various aspects of
Mitchell's testimony.

Counsel for both defendants emphasized in closing arguments that Mitchell was
the only person who identified the defendants, pointed out inconsistencies in Mitchell's
testimony, and challenged Mitchell's credibility. Ellis' counsel specifically reminded the
jury of the factors identified in the eyewitness identification instruction.

In rebuttal, the prosecutor reminded the jury that Detective Block testified
Mitchell seemed certain in his identification of the defendants. The prosecutor cautioned
the jury against singling out the eyewitness identification instruction and urged them
instead to read all of the instructions together. The prosecutor noted, again, that Mitchell
had known both defendants for years, and argued this case presented a "different
situation" than those in which a witness identified a stranger.

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At some point after deliberations began, the jury asked: "What is 'Truth &
Veracity'? How is it different from purgery [sic]?" The court responded by asking the
jury to be more specific, and the jury then explained: "We were told that [Mitchell] had
been convicted with counts against him of 'truth and verasity [sic].' This could help us
understand the character of the witness if we could better understand this conviction."
After consultation with all parties, the court called the jurors into the courtroom and
advised as follows: "[Mitchell] was convicted as a juvenile of burglary in 2000 and
misdemeanor theft in 2001."

Ultimately, the jury acquitted Ellis of all charges but found Dobbs guilty of first-
degree premeditated murder, attempted first-degree premeditated murder, and criminal
possession of a firearm. At sentencing, the district court denied Dobbs' motion for a new
trial and imposed a sentence of life imprisonment without the possibility of parole for 25
years for the first-degree murder conviction and a consecutive controlling prison sentence
of 155 months for the other two convictions.

Our jurisdiction over Dobbs' direct appeal arises under K.S.A. 22-3601(b)(1)
(maximum sentence of life imprisonment and conviction of off-grid crime).

DISCUSSION

The district court did not abuse its discretion in granting the State's request for a
continuance under K.S.A. 22-3402(5)(c).

Dobbs claims the district court abused its discretion in granting the State's request
for a continuance under K.S.A. 22-3402(5)(c) to obtain reports from the KBI regarding
several pieces of evidence submitted for forensic analysis. Dobbs argues the delay caused
by the improper continuance resulted in a violation of his statutory right to a speedy trial,
and he seeks discharge from liability for his crimes under K.S.A. 22-3402(1).
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Standard of Review

When reviewing a district court's decision to grant a continuance under K.S.A. 22-
3402(5), we apply the abuse of discretion standard. State v. Beaman, 295 Kan. 853, 862-
63, 286 P.3d 876 (2012); State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 (2006). A
judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or
unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v.
Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Dobbs bears the burden of establishing that an abuse of discretion occurred. See State v.
McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012).

Analysis

The State has a statutory duty to bring a defendant to trial within 90 days of
arraignment if the defendant is being held in custody solely on the charges related to the
trial. K.S.A. 22-3402(1); State v. Breedlove, 295 Kan. 481, 486, 286 P.3d 1123 (2012). If
the State fails to bring the defendant to trial within the 90-day period, the defendant may
be entitled to be discharged from liability for the crimes charged. K.S.A. 22-3402(1).

But delays attributable to court-ordered continuances authorized under K.S.A. 22-
3402(5) are not counted against the State in computing the 90-day period. K.S.A. 22-
3402(1); State v. Edwards, 291 Kan. 532, 538, 243 P.3d 683 (2010); State v. Hines, 269
Kan. 698, 703, 7 P.3d 1237 (2000). 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 succeeding 90 days. K.S.A. 22-3402(5)(c).

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Dobbs was arraigned on January 13, 2009, and his trial was scheduled for April 6,
2009. In March 2009, the State filed a written motion for a continuance under K.S.A. 22-
3402(5)(c). The State indicated it had submitted "physical evidence" to the KBI in
October 2008 for DNA, firearm, and toolmark analysis, but the testing would not be
completed for at least 30-60 days due to a KBI lab backlog. Further, the State alleged
reasonable grounds existed to believe the evidence would be available within the next 90
days.

At the March 31, 2009, hearing on the State's motion, David Morales, an
investigator from the district attorney's office, testified about the KBI's backlog of cases
requiring laboratory testing and indicated the prosecution had submitted the evidence in
this case to the KBI in October 2008. Morales testified he had spoken with Barbara Crim-
Swanson at the KBI regarding the status of the testing in this case and had learned that
the testing should be completed within the next 60 days.

Following Morales' testimony, the prosecutor asserted the unavailable evidence
was "material," arguing:

"[T]he evidence that we're talking about consists of in excess of 40 shell casings from the
scene, some physical evidence that—that could be connected to one of the defendants,
including an earring and a pouch—I want to say a pouch. I'm not entirely sure if that's a
correct description. But this other—this is all physical evidence from the scene. It's
material both to the identity—excuse me—of the shooter as well as to the manner of
death of Muryel Josenberger and the cause of the injuries to Mario Mitchell."

Defense counsel objected to the continuance, noting Dobbs had been in custody
for over 5 months, and urged the court to reconsider the amount of Dobbs' bond if it
granted the continuance. The court granted the continuance, stating:

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"[T]he State has presented a case that appears to match the requirements of the
K.S.A. 22-3402 Subsection 5(c). This is material evidence which is unavailable.
Reasonable efforts have been made to procure such evidence. There [are] reasonable
grounds to believe the evidence can be obtained [and] trial commenced within the next
succeeding 90 days.
"Based upon that and the testimony of the investigator, the State's motion to
continue the matter is granted. You've got 90 days, but the condition is that as soon as
you obtain the material, you notify the parties and the Court and we'll see if we could get
these fellows scheduled . . . as soon as possible . . . within the 90 days."

Only 77 days elapsed from Dobbs' arraignment to the district court's decision to
grant the continuance. An 83-day delay resulted from the continuance, and Dobbs' trial
commenced 160 days after arraignment.

On appeal, Dobbs argues the district court abused its discretion in granting the
continuance because the State failed to establish the materiality of the evidence at issue
and, consequently, the continuance violated his statutory right to a speedy trial.
Specifically, Dobbs argues (1) Morales referred only to DNA testing and not to the
testing of the shell casings; therefore, the State failed to prove the KBI backlog affected
the testing of the shell casings, and (2) the State failed to establish the materiality of the
earring and magazine pouch, which were subjected to DNA testing, because the
prosecution "never explained its basis for connecting these objects to the gunman, or why
these objects might yield DNA evidence that would identify him."

Dobbs relies on Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991), and State v.
Brown, 266 Kan. 563, 973 P.2d 773 (1999), to support his suggestion that the State must
establish the materiality of unavailable evidence by demonstrating some connection
between the defendant and the evidence submitted for testing before a continuance is
warranted under K.S.A. 22-3402(5)(c).
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Neither of the cited cases supports Dobbs' position. The primary issue in Smith
was whether the State made a reasonable effort to timely submit samples for testing. In
affirming the trial court's grant of a continuance, the Smith court implicitly approved the
trial court's reasoning that the continuance should be granted because the tested evidence
could be material, not because the materiality of the evidence had been conclusively
established before the court granted the continuance. See 248 Kan. at 223 (citing trial
court's reasoning that "if the evidence was tested, the test results could produce either
exculpatory evidence material to the defense or evidence material to the identity of the
defendant as the murderer").

Similarly, in Brown this court affirmed the trial court's decision to grant a
continuance when a connection between the evidence submitted for testing and the victim
was possible, but not conclusively established. There, the victim's body had not been
recovered, and the State sought a continuance to obtain DNA testing on bone and teeth
fragments found in a salvage yard where the victim had purportedly been cremated by the
defendant. As in Smith, the defendant in Brown did not challenge the materiality of the
evidence. Yet, in affirming the continuance, the Brown court noted the State was "entitled
to attempt to match the bones and teeth fragments found at the crime scene to the victim's
DNA." (Emphasis added.) Brown, 266 Kan. at 572. The Brown court further noted that
the materiality of the evidence "did not change when the testing or lack of it did not result
in admissible evidence." 266 Kan. at 571.

We have not previously defined "material evidence" in the context of a
continuance under K.S.A. 22-3402(5)(c). See State v. Jackson, 280 Kan. 16, 25, 118 P.3d
1238 (2005) ("We have previously upheld continuances of up to 120 days for DNA
testing in murder cases without specifically analyzing whether the DNA evidence was
material."), cert. denied 546 U.S. 1184 (2006). In other contexts, we have explained that
15



"[m]aterial evidence is evidence that '"has a legitimate and effective bearing on the
decision of the case and is in dispute."' State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069
(2007)." State v. Preston, 294 Kan. 27, 32, 272 P.3d 1275 (2012).

But both Brown and Smith support the proposition that 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. See also Jackson, 280 Kan. at 25 (rejecting defendant's
argument "DNA evidence from the multiple crime scenes" was not sufficiently material
to support State's request for continuance under prior version of the statute and reasoning
"[e]ven though the DNA evidence did not directly implicate Jackson, it implicated his
codefendants and corroborated" other testimony). Consequently, we reject Dobbs'
position that the State must demonstrate a definitive connection between the defendant or
the victim and the evidence submitted for testing before that evidence can be considered
material for purposes of granting a continuance under K.S.A. 22-3402(5)(c).

Here, the record supports the district court's determination that the evidence was
material for purposes of granting the continuance. Morales testified that evidence was
submitted for DNA testing in October 2008 and would not be tested before trial due to
the KBI's backlog. Although Morales offered no specifics about the evidence submitted
for testing, the prosecutor informed the court that the evidence consisted of over 40 shell
casings, a bloody earring, and some type of pouch. The prosecutor further informed the
court that the evidence found at the crime scene could be material to the identity of the
gunman and to the manner of death and injury of the victims.

Accordingly, we conclude the district court did not abuse its discretion in granting
the continuance under K.S.A. 22-3402(5)(c). Further, because the 83-day delay
attributable to the continuance does not count against the State, the district court did not
16



violate Dobbs' statutory right to a speedy trial, and he is not entitled to a discharge from
liability for his crimes under K.S.A. 22-3402(1).

The district court did not commit clear error in giving the jury an eyewitness
identification instruction.

Consistent with PIK Crim. 3d 52.20, the district court instructed the jury, in
relevant part, that "[i]n weighing the reliability of eyewitness identification testimony"
the jury should consider "[t]he degree of certainty demonstrated by the witness at the
time of any identification of the accused." Dobbs claims he is entitled to a new trial
because the district court's instruction on eyewitness identification included the degree of
certainty factor that he contends this court disapproved in State v. Hunt, 275 Kan. 811, 69
P.3d 571 (2003). The State argues the district court did not err in including the factor in
light of State v. Trammel, 278 Kan. 265, 269-70, 92 P.3d 1101 (2004).

Standard of Review

Because Dobbs failed to object to the instruction, we apply the clear-error rule.
See K.S.A. 22-3414(3); State v. Marshall, 294 Kan. 850, 867, 281 P.3d 1112 (2012). To
determine whether a given instruction was clearly erroneous, we first determine whether
the instruction was erroneous. This is a legal question subject to de novo review. If we
find error, we then determine whether reversal is required. Reversal is required only if we
are firmly convinced the jury would have reached a different verdict absent the error. We
have unlimited review over the reversibility determination and, in conducting that review,
we examine the entire record as a whole. The defendant bears the burden of establishing
clear error under K.S.A. 22-3414(3). State v. Williams, 295 Kan. 506, 515-16, 286 P.3d
195 (2012).

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Analysis

We recently issued two decisions impacting our analysis of the instructional issue
in this case: Marshall, 294 Kan. 850, and State v. Mitchell, 294 Kan. 469, 275 P.3d 905
(2012).

In Mitchell, we reaffirmed that a trial court should issue a cautionary eyewitness
identification instruction when "an eyewitness identification is a critical part of the
prosecution's case and there is [a] serious question about that identification's reliability."
Mitchell, 294 Kan. at 479. But we also held that it is error to instruct the jury on the
degree of certainty factor that is included in PIK Crim. 3d 52.20. See Mitchell, 294 Kan.
at 481 (concluding instruction, as written, "prompts the jury to conclude that an
eyewitness identification is more reliable when the witness expresses greater certainty,
which places undue weight on eyewitness certainty evidence"). Thus, the district court
erred in instructing the jury on the degree of certainty factor in this case. The only
remaining question is whether this error requires reversal.

We begin by considering whether the eyewitness identification was crucial to the
State's case and whether the witness stated an opinion of certainty. See Marshall, 294
Kan. at 867-68; Mitchell, 294 Kan. at 481-83. "[I]f the answer to either question is 'no,'
then the inclusion of the degree of certainty factor would not have actually affected the
verdict," and, accordingly, would not constitute clear error. (Emphasis added.) Marshall,
294 Kan. at 868.

If, however, the answer to both questions is yes, the next step is to "consider the
impact of the jury instruction in light of the entire record and additional considerations."
Marshall, 294 Kan. at 868. At this stage, "[t]he appropriate appellate consideration is
18



whether 'other procedural safeguards mitigated' the deficiency in the eyewitness
instruction." 294 Kan. at 868.

Those safeguards 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 take care in appraising identification evidence'"; and the
constitutional requirement that the State prove every element of the crime beyond a
reasonable doubt. Marshall, 294 Kan. at 868-69 (quoting Perry v. New Hampshire, 565
U.S. ___, 132 S. Ct. 716, 728-29, 181 L. Ed. 2d 694 [2012]).

In this case, the answer to both initial questions is "yes." First, Mitchell's
identification of Dobbs was crucial to the State's case because Mitchell was the only
witness who identified Dobbs as the gunman and there was no physical evidence placing
Dobbs at the crime scene. See Marshall, 294 Kan. at 868 (finding witness' identification
critical when charges "rested almost entirely on" witness' identification of defendant);
Mitchell, 294 Kan. at 482 (finding witness' identification critical when it was only
evidence connecting defendant to crime). Further, the prosecutor emphasized the
importance of Mitchell's testimony in closing argument when she characterized Mitchell
as the "star witness" on the issue of identity.

Second, the jury heard both Mitchell and Detective Block express certainty as to
Mitchell's identification of Dobbs as the gunman. Mitchell, after being thoroughly cross-
examined about discrepancies in his statements, clarified that although he used various
statements to describe how he knew or recognized the defendants, he did not intend to
imply uncertainty about his identification of either defendant. And Block testified that
19



when he interviewed Mitchell in the hospital, Mitchell expressed no uncertainty in
identifying Dobbs as the shooter.

These expressions of certainty may have affected the jury's deliberations. See
Marshall, 294 Kan. at 868 (citing similar "certainty" testimony presented at the
defendant's trial); Mitchell, 294 Kan. at 482 (noting that trial evidence indicated witness
was "100 percent certain" when he identified defendant from photo lineup).

Because the district court erroneously instructed the jury to consider Mitchell's
degree of certainty and because we have affirmatively answered both initial inquiries of
our analysis, we next determine whether "other procedural safeguards mitigated any
deficiency in the cautionary instruction." Mitchell, 294 Kan. at 482; accord Marshall, 294
Kan. at 868.

Here, Dobbs fully exercised his right to confront Mitchell at trial, and defense
counsel for both defendants thoroughly cross-examined Mitchell about inconsistencies in
his descriptions of the gunman and his identification of Dobbs. Ellis' counsel elicited
testimony indicating Mitchell had previous "incidents" or "fights" with Dobbs and later
argued Mitchell may have implicated Dobbs to "settle old scores." Ellis' counsel also
elicited testimony that Mitchell had prior juvenile adjudications for burglary and theft
which implicated Mitchell's "truth or veracity."

Further, both counsel utilized closing arguments to remind the jury of
inconsistencies and discrepancies in Mitchell's testimony, the factors to consider in
weighing the credibility of an eyewitness' identification, and the State's burden of proof.
Specifically, Dobbs' counsel suggested Mitchell's identification of Dobbs was suspect
because Mitchell initially told police he couldn't identify the shooter but 2 weeks later
Mitchell identified the gunman as Dobbs and couched his identification in ambiguous
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language, i.e., saying the gunman "looked like to me Donnell Dobbs." Similarly, Ellis'
counsel emphasized that Mitchell initially told police he could not identify the gunman or
the getaway driver but later told detectives Dobbs and Ellis committed the crimes.

Under these unique circumstances, we conclude the procedural safeguards
sufficiently counteracted the erroneous instruction. This conclusion seems particularly
appropriate here, where Dobbs was not a stranger to Mitchell. As we noted in Mitchell,
the "normal concerns about eyewitness reliability" may not be present when the witness
is personally familiar with the defendant. See Mitchell, 294 Kan. at 482 (discussing
caselaw suggesting it is unnecessary to give cautionary eyewitness identification
instruction when witness is personally familiar with defendant). Here, Mitchell testified
he had known Dobbs since high school and that is why Mitchell recognized Dobbs as he
stood over him with a gun.

Finally, we note that even though Mitchell's identification of Dobbs was the State's
strongest evidence implicating Dobbs, it was not the only evidence. See Marshall, 294
Kan. at 870 (noting State's strongest evidence was witness' identification of defendant,
but other circumstantial evidence linked defendant to crime). Here, Mitchell identified
the getaway car as a gray Monte Carlo he recognized as belonging to Dobbs' brother,
Dion. Two other witnesses, Montiel and Union, also testified they saw a gray or silver
Monte Carlo or Impala leaving the barbershop after the shooting. Further, both witnesses
identified photographs of Dion's Monte Carlo as the car they saw leaving the barbershop.
Finally, Campbell's and Jackson's accounts of the shooting were consistent with
Mitchell's trial testimony. All three men testified that a lone gunman wearing a hat and a
bandana over his face walked into the barbershop with a "long gun" or assault rifle and
began shooting. Thus, as the prosecutor argued, other witnesses corroborated several
aspects of Mitchell's testimony.

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In conclusion, we hold the trial court erred in giving an eyewitness identification
instruction which included the degree of certainty factor disapproved of by this court in
Mitchell. But other procedural safeguards in this case sufficiently counteracted that
instruction. Specifically, through cross-examination and closing argument, the jury was
thoroughly exposed to the facts and circumstances both in favor of and against the
accuracy of Mitchell's identification of Dobbs as the gunman. See Marshall, 294 Kan. at
870; Mitchell, 294 Kan. at 483. Further, other witnesses corroborated aspects of
Mitchell's testimony.

We conclude under these circumstances that there is no reasonable possibility the
jury would have rendered a different verdict absent the error; thus, reversal is not
required.

Affirmed.