State v. Bruce

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NOT DESIGNATED FOR PUBLICATION

No. 116,991

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CODY W. BRUCE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge. Opinion filed March 16,
2018. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., SCHROEDER, J., and BURGESS, S.J.

PER CURIAM: After a bar fight in Baldwin City, Kansas, law enforcement
conducted an investigation to determine who was involved. Cody W. Bruce was charged
with aggravated battery and the case went to a jury trial. As the trial progressed, Bruce's
counsel moved for a mistrial, contending that three identification issues were prejudicial.
First, the victim identified Bruce in-court after failing to identify him on two previous
occasions. Second, a law enforcement officer identified Bruce in-court as "my suspect
Cody Bruce" but did not have any previous knowledge of the defendant. Third, a witness
testified as to his identification of Bruce from a six-person photographic lineup, but also
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testified that law enforcement initially showed him a single photo of Bruce. The trial
court denied Bruce's motion for a mistrial, and at the conclusion of the trial the jury found
Bruce guilty of aggravated battery. On appeal, Bruce claims that the three witnesses'
identifications caused a fundamental failure in the proceeding resulting in prejudice that
warranted a mistrial. The trial court did not abuse its discretion in determining that the
witnesses' in-court and out-of-court identifications did not result in a fundamental failure
in the proceeding. The trial court's denial of Bruce's motion for mistrial is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Altercation at The Salt Mine and subsequent investigation

In May 2015, Nicholas Marra and Dylan Perry went to a Baldwin City, Kansas,
bar called The Salt Mine. Shortly after 1 a.m., the two men were waiting at the bar for
drinks when Marra noticed Perry was engaged in a conversation with another bar patron.
When their conversation began to escalate verbally, Marra reached out and put his arms
between them. Marra turned back toward the bar to grab his drinks, and when he turned
back around, he was punched twice in the face. Marra grabbed the individual and they
both fell to the ground fighting. By the time the fight ended, Marra had injuries to his
teeth, gums, and hand.

Bar employees called Baldwin City police and Officer Michael Velasquez
responded. Marra told Officer Velasquez that the person who struck him was a man with
a large build and facial hair "wearing a black shirt and jeans and a ball cap."

Officer Velasquez spoke with a handful of people, both in the bar and in the
parking lot, and left with names of potential witnesses and people he suspected of being
involved in the fight. One of the individuals the officer spoke to in the parking lot was
Andy Kelly. When Officer Velasquez asked Kelly if he knew the individual involved in
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the altercation, Kelly said that although he did not know the person's name, he likely
could identify the individual again if he saw him.

After gathering the names of and speaking with witnesses that night, Officer
Velasquez took to Facebook to further his investigation. As the officer browsed through
one witness' Facebook page, he found an individual that matched Marra's description—
Bruce. To investigate Bruce's potential involvement, Officer Velasquez made a number
of phone calls. First, the officer called Bruce himself and asked if he was present at the
bar the night of the incident. Bruce responded that he was not at The Salt Mine that night.
Officer Velasquez also called three other individuals. One said he saw Bruce at the bar
but could not remember details because he was intoxicated at the time. Another
individual advised the officer that she did not remember Bruce being at The Salt Mine the
night in question. Another witness not only said that Bruce was present, but he was also
involved in the fight.

Officer Velasquez obtained video surveillance footage of the incident from the
bar. The officer observed an individual wearing a black button down shirt, jeans, and a
backwards ball cap—fitting the description Marra provided law enforcement. In part of
the video, this individual unbuttoned his shirt, revealing a tattoo on his torso. Officer
Velasquez found a photograph on Facebook of Bruce with a similar looking tattoo.
However, Marra failed to identify Bruce as the assailant both from a six-person photo
lineup and at a preliminary hearing.

Eventually, Bruce was arrested and charged with level 4 aggravated battery in
August 2015.




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Trial proceedings

Before trial, Bruce filed a motion in limine to preclude Officer Velasquez from
identifying him as the assailant on surveillance footage from The Salt Mine. He argued
that because Officer Velasquez had no independent knowledge of him prior to his
investigation, the officer should not give his opinion testimony as to the identity of the
individual in the video before the jury. The district court took the motion under
advisement but did not render a decision.

The Friday before trial, the State announced that Kelly would be called as a
witness and that he was prepared to testify regarding his identification of Bruce from the
surveillance footage as well as a six-person photo lineup. Defense counsel objected to the
late addition of this witness, arguing that it would change the defense strategy and would
be prejudicial towards Bruce. The district court ordered a continuance to allow the
defense to investigate the circumstances surrounding Kelly's identification of Bruce from
the photo lineup.

Marra was the State's first witness at trial. When the prosecutor asked Marra to tell
the jury who hit him that night, he pointed at Bruce and said, "the defendant." Defense
counsel objected, arguing that the order in limine prevented the testimony. The State
argued that the issue was one for cross-examination and the trial court never ruled on the
objection. As Marra's testimony continued, he explained that he remembered separating
Bruce and Perry at the bar. Marra also testified regarding his inability to identify Bruce
previously, stating that he felt nervous when he looked at the photo lineup and that Bruce
looked different at the preliminary hearing without his beard.

Kelly also testified for the State. Kelly testified that while he did not know Bruce's
name at the time, he remembered Bruce was one of the men speaking with Perry at the
bar. However, Kelly did not actually witness the fight; his back was turned at the time.
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Kelly also confirmed his prior photo identifications with Officer Velasquez. Kelly
successfully identified Bruce from a photo lineup prepared by Officer Velasquez during
the investigation, but then testified on cross-examination the officer had previously
shown him a single photo of Bruce early on in the investigation. Kelly also identified
Bruce in the courtroom.

After learning that Officer Velasquez showed Kelly a single photo of Bruce during
the investigation, the defense moved for a mistrial. Defense counsel argued Officer
Velasquez' procedure tainted the identification process and that Kelly's photo array
identification would have been subject to suppression as unduly suggestive if it had been
known prior to trial that the officer showed Kelly the single photo prior to showing him
the photo lineup. At the time of the motion, the trial court took it under advisement, but
indicated that the perceived suggestive conduct "would bear on the reliability of a later
identification." Defense counsel later renewed its motion as well as its objection to
Marra's in-court identification.

Officer Velasquez testified about his investigatory efforts. The officer identified
Bruce in the video as "my suspect Cody Bruce." Defense counsel moved to strike that
statement, and the trial court granted the motion. The trial court instructed the jury to
disregard the officer's answer. When he continued testifying, Officer Velasquez also
confirmed that he showed Kelly a single photograph of Bruce prior to asking Kelly to
identify him from a six-person photo lineup. At this point, the trial court and the parties
discussed the various identification issues, including the identifications by Marra, Kelly,
and Officer Velasquez, eventually denying Bruce's motion for a mistrial.

It should also be noted that other various witnesses also testified at trial. Some
testified that they remembered Bruce being at The Salt Mine that night and others
testified that they did not recall seeing him there. Because the three witnesses' testimonies
described above are the subject of this appeal, the remaining testimony is briefly
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summarized here. One witness, a social acquaintance of Bruce, testified that he did not
remember seeing Bruce at The Salt Mine that night, but that he was intoxicated and did
not remember much. He also testified that he, Bruce, and another friend all have similar
builds that might make it difficult to distinguish them. Another witness testified that she
did not see Bruce that night, but testified she arrived at The Salt Mine with Bruce's
brother. Although she identified other individuals she knew, including her boyfriend,
talking with Marra's assailant on the surveillance footage, she did not identify the suspect.
Her boyfriend also testified he did not see Bruce at The Salt Mine that night. Perry,
Marra's friend who was involved in the initial verbal altercation, remembered having an
argument with an individual while waiting in line at the bar that night, but otherwise had
limited recollection of the event. Another witness testified that he helped break up the
fight but did not recognize any of the participants. A manager at The Salt Mine testified
that he saw Bruce at the bar on the night of the incident, but did not personally witness
the altercation. He identified Bruce, as well as many of the other bar patrons and
witnesses, on the video.

The defense presented two alibi witnesses who testified that Bruce worked at an
auto shop until approximately 3 a.m. on the night in question.

Additional facts relevant to Bruce's contentions on appeal

The trial court did not rule on the motion for a mistrial at the time it was raised,
stating that it needed to review caselaw and the pretrial hearing transcript, and the trial
continued without a ruling.

As to Marra and Officer Velasquez' in-court identifications, the trial judge initially
determined that prior to trial it ruled they were precluded from making an in-court
identification of Bruce as the individual that hit him.
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"I looked back at the motion in limine after [defense counsel] raised it. I did rule that he
could not identify the defendant in Court, and that [Officer] Velasquez could not identify
the defendant as the one that was there, because he didn't know him previously."

However, after reviewing the transcript as well as the trial testimony at issue, the
trial court found that because it never issued a formal ruling on the motion in limine,
there was no order in limine to violate. The trial judge further determined that although
Marra identified Bruce at trial as his attacker, the jury could evaluate the strength of the
identification.

"I think I did rule earlier on the victim, just saying that well, he can't do an in-court
identification, but the fact is he did, so then I've got to figure out what to do about it.
"Basically, when I look at the Marra ID, it was, you know, the defendant was
able to cross-examine him about the fact he never could identify him before, and so, you
know, the jury is just going to have to decide what they believe about that.
"And I don't think that one instance is significant enough to cause a problem."

As to Officer Velasquez' in-court identification, the trial judge acknowledged that
while the identification was potentially problematic, the court's admonishment mitigated
the error:

"[Officer] Velasquez's statement clearly was—should not have been what it was,
but the Court did admonish the jury to disregard his response. . . .
"And I think that the admonition should correct that error. Because cross-
examination made it clear that he did not know the defendant prior to this incident."

As to Kelly's testimony, the trial court determined that although it might have been
an error, Bruce did not suffer from undue prejudice. First, almost a year passed between
the initial incident of Officer Velasquez showing Kelly the single photograph and Kelly's
identification of Bruce from a six-person lineup. Next, the photo of Bruce in the lineup
was different from the photo Officer Velasquez showed Kelly the first time. Lastly, Kelly
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indicated the night of the altercation that he believed he could recognize Marra's assailant
if he saw him again.

"Andy Kelly, you know, I think that he should not have shown him the single
photograph. He did, Kelly had said that the night of, 'I would know him if I saw him', and
then a long time elapsed between that single photograph which was shown close to the
incident somewhere, we are not exactly sure where.
"And in view of the lineup, which did not include the same pictures, it was a
different picture, and so I think given those things, it didn't create undue prejudice."

After both parties presented their cases, the jury convicted Bruce of level 7
aggravated battery—a lesser offense than the originally charged level 4 aggravated
battery. The district court sentenced Bruce to 24 months' probation with an underlying 24
months' imprisonment. Bruce appeals his conviction and the trial court's ruling denying
his motion for a mistrial.

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
DENYING BRUCE'S MOTION FOR A MISTRIAL?

Bruce argues that a mistrial was warranted here because the identifications from
Marra, Officer Velasquez, and Kelly were tainted or otherwise unreliable. The State
argues that while there might have been prejudicial conduct, there was no fundamental
failure in the proceeding causing prejudice that warranted a mistrial.

Standard of review

An appellate court reviews a trial court's decision on a motion for mistrial for
abuse of discretion. Judicial discretion is abused if the judicial decision (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. Moyer, 306 Kan. 342, 352, 410 P.3d 71 (2017).

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"Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution. This statute
creates a two-step process. First, the trial court must determine if there was some
fundamental failure of the proceeding. If so, the trial court moves to the second step and
assesses whether it is possible to continue without an injustice. In other words, the trial
court must decide if the prejudicial conduct's damaging effect can be removed or
mitigated by an admonition, jury instruction, or other action. If not, the trial court must
determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial." State v. Waller, 299 Kan. 707, Syl. ¶ 3, 328 P.3d 1111 (2014).

In evaluating a motion for mistrial under K.S.A. 22-3423(1)(c), the trial court must
first decide if there is prejudicial conduct creating a fundamental failure in the
proceeding. If so, the trial court must next decide if the conduct makes it impossible to
continue the trial without injustice or if the damaging effect of the prejudicial conduct can
be removed or mitigated by an admonition, jury instruction, or other action. Moyer, 306
Kan. at 356; State v. Sherman, 305 Kan. 88, 118-19, 378 P.3d 1060 (2016).

To determine if an error makes it impossible to continue the trial without injustice
and requires a mistrial, a court must determine if the fundamental failure affected a
party's substantial rights. If a right guaranteed by the United States Constitution is not
implicated, this evaluation is assessed under the harmless error statutes, K.S.A. 2017
Supp. 60-261 and K.S.A. 60-2105. However, if a constitutional right is implicated, the
error must be assessed under the constitutional harmless error standard in Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987
(1967). See State v. Logsdon, 304 Kan. 3, 39, 371 P.3d 836 (2016).

Bruce asserts that the conduct impacted his right to a fair trial—a right protected
by the United States Constitution—so we apply the constitutional harmless error analysis.
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As the party benefiting from the error, the State has the burden of demonstrating that the
error was harmless. State v. Race, 293 Kan. 69, 81-82, 259 P.3d 707 (2011).

"[T]he error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict. An appellate court will use the same
analysis." State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).

Bruce argues that testimony from three witnesses violated his right to a fair trial.
The trial court denied Bruce's motion for a mistrial after discussing each of the
identification issues with both parties present. Bruce claims that these decisions were
prejudicial and impacted his right to a fair trial. Specifically, Bruce takes issue with the
trial court's denial of his motion for mistrial over the testimony or in-court identification
of three witnesses: Marra, Officer Velasquez, and Kelly.

First, Bruce argues Marra's in-court identification violated his right to a fair trial
because the testimony was unreliable and subject to suppression. Inconsistent or failed
identifications can undermine the reliability of a later, successful identification. State v.
Mitchell, 294 Kan. 469, 475, 275 P.3d 905 (2012). At the same time, the accuracy of a
witness' prior description of the suspect suggests that his identification is reliable. State v.
Corbett, 281 Kan. 294, 305, 130 P.3d 1179 (2006). In this case, Marra twice failed to
identify Bruce—once in a photo lineup and once at a preliminary hearing. However,
while Marra struggled to identify his attacker in person, he consistently described him in
the same way, allowing Officer Velasquez to identify Bruce from online photos.

The State also argues that Marra's in-court identification is reliable because it was
made "spontaneously" and he "did not hesitate" in identifying him. However, this is a
weaker argument, as Marra's spontaneous identification was certainly made easier by the
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fact that Bruce was the only defendant at trial and was sitting at the defense table—a fact
that the trial court recognized:

"And based upon Marra's prior testimony, you know, and that's one of the things
that the case law is pretty clear about is that, you know, if somebody can't identify them
before, that it is way too suggestive to do it in Court when he's sitting there next to the
defense attorney accused."

Here, the trial court determined that this conduct did not impact Bruce's right to a
fair trial because the jury had the opportunity to listen to cross-examination, hear about
the times Marra did not successfully identify Bruce, and evaluate the credibility of his
testimony. The jury also heard evidence regarding Marra's consistent description of his
attacker—one that matched the surveillance video evidence. The trial court determined
that any prejudicial conduct with Marra's identification was mitigated through cross-
examination and other evidence suggesting consistency and reliability.

As to Officer Velasquez, Bruce argues his in-court identification violated his right
to a fair trial because it was made through knowledge the officer gained only during his
investigation, not through any prior dealings with Bruce. The presence of prejudicial
conduct does not automatically warrant a mistrial. In some cases, an admonition or jury
instruction may cure prejudicial conduct. Sherman, 305 Kan. at 119. Here, the trial court
cautioned the jury regarding Officer Velasquez' identification of Bruce and told the
members of the jury to disregard his answer. The trial court determined that this
admonition, coupled with the defense's cross-examination, corrected the error. Therefore,
any prejudicial conduct was cured or mitigated, and Officer Velasquez' in-court
identification of Bruce did not prejudice Bruce to the extent that it prevented a fair trial.

As to Kelly, Bruce argues his identification from a six-person photo lineup was
tainted and therefore unreliable. "A lineup or photo array identification procedure is
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impermissibly suggestive if the officers conducting the proceeding give the witness
information that highlights one of the individuals before the selection is made or make
suggestions about who the witness should select." State v. Trammel, 278 Kan. 265, 273,
92 P.3d 1101 (2004). Photo lineups that are impermissively suggestive are forbidden by
the due process clauses of the United States Constitution. State v. Clark, 218 Kan. 726,
Syl. ¶ 8, 544 P.2d 1372 (1976). However, even with the presence of unnecessarily
suggestive identification procedures, suppression of the identification is not always
mandatory. State v. Cruz, 297 Kan. 1048, 1064, 307 P.3d 199 (2013). The trial court must
ask whether the identification is reliable even with the suggestive procedure. Corbett, 281
Kan. at 304. "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.

In this case, Officer Velasquez showed Kelly a single photograph of Bruce and
asked if Bruce was the individual who was involved in the altercation at The Salt Mine
that night. Later, Officer Velasquez showed Kelly a six-person photo lineup, and Kelly
correctly identified Bruce. Bruce argues that this procedure was suggestive and tainted
Kelly's later accurate identification. However, the trial court determined that because the
photos were different and a significant amount of time passed between the two
identifications, the State showed Bruce was not unduly prejudiced. It was therefore left to
the jury to determine if Kelly's photo array identification was credible and reliable even
though he was previously shown a single photo of Bruce. The trial court determined that
any prejudicial conduct toward Bruce did not warrant a mistrial.

Conclusion

For each of the issues raised by Bruce, the trial court determined that the conduct
did not impact his right to a fair trial. The trial court determined either that Bruce was not
unduly prejudiced or that the prejudicial conduct was mitigated. A trial court abuses its
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discretion when its decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an
error of law; or (3) is based on an error of fact. Moyer, 306 Kan. at 352. The record does
not indicate that denying Bruce's motion for a mistrial was an abuse of discretion.

The trial court correctly determined there was no prejudicial conduct that
amounted to a fundamental failure of Bruce's substantial rights and a mistrial was not
appropriate. Based on review of the entire record on appeal, we find the trial court's
decision was not an abuse of discretion.

Affirmed.