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State v. Bobby Llamar Kelly

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 107
Docket:		Yor-99-693
Argued:	May 3, 2000
Decided:	June 2, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS,
JJ.


STATE OF MAINE v. BOBBY LLAMAR KELLY


CLIFFORD, J.

	[¶1]  Bobby Llamar Kelly appeals from a judgment of conviction of
armed robbery (Class A), see 17-A M.R.S.A. § 651 (1983), entered following
a jury trial in the Superior Court (York County, Brennan, J.).{1}  Kelly contends
that the court abused its discretion when it denied Kelly's motion for funds
to pay for an expert witness, and that the court erred when it refused to
exclude evidence of the victim's identification of Kelly from a photo lineup
and in the courtroom and when it refused to exclude statistical DNA
evidence.  Kelly also contends that the court improperly denied his motion
for a new trial.  Finding neither error nor abuse of discretion, we affirm the
judgment.
	[¶2]  Early on Sunday morning, January 10, 1999, Kelly, who is
African-American, was at a Biddeford 7-11 store with a young woman.  Both
Kelly and the woman were known by one of the clerks working at the store. 
Kelly asked for a phone book in order to call a cab.  A clerk gave him the
book, along with several numbers, one of which was for Alternative Taxi. 
Kelly and the woman then left.
	[¶3]  Shortly thereafter, and near the 7-11, an African-American man
described as wearing a wool cap, a green mask covering his mouth and nose,
and a dark jacket and jeans flagged down a driver from Alternative Taxi. 
The man got in the cab and rode to Saco, pleasantly conversing with the
driver as they went.  Eventually, the man apparently asked to be driven back
to Biddeford, and directed the cab driver to drive around several streets,
ostensibly so that he could find a friend's house.  Finally, the man told the
driver to stop, and paid the driver.
	[¶4]  The man then declared that he "would take all of it," and when
the driver turned around, he saw what he at first took for the end of a
silver-colored, toy gun in the man's hands.  Soon, however, the driver
realized it was a real gun.  The driver then gave back the money he had just
received from the man as a fare, but no more.{2}  The man then reached over,
took the car keys, and left on foot.
	[¶5]  The driver radioed his dispatcher for assistance, and then exited
the vehicle to pursue the man.  The man took off his mask, and the driver
testified that he got a good look at the man's full face for the first time. 
Apparently noticing that he was being pursued, the man dropped the mask
as he fled.  The driver returned to his car, and eventually the police arrived
and collected the mask.
	[¶6]  Kelly's friend, Ronald Bean, who lived near where the robbery
occurred, was awakened by Kelly at about 6:00 a.m.  Bean testified that Kelly
appeared nervous, and that Kelly asked Bean to hide a silver pistol that Kelly
pulled from his backpack.  Bean had seen this weapon before-he had been
the intermediary between two friends in its sale just the previous day.  Kelly
wanted to stay, but Bean insisted he leave.
	[¶7]  Another robbery had occurred a few hours before the robbery in
this case.  According to a detective investigating that earlier crime, the
victim{3} had known his robber by the name "Lamar."  Based on this name,
the detective prepared a photo array that contained Kelly's picture along
with pictures of five others who looked as similar to Kelly as the detective
was able to find.  The victim of the first robbery picked out Kelly from the
array.  On the basis of this identification, Kelly was arrested on January 11.
	[¶8]  The next day, the detective presented the same photo array to
the victim in this case, the cab driver.{4}  The detective asked the driver
whether he had heard about an arrest on a similar crime, which had been on
the local news, and the driver indicated he had not.  The detective also told
the driver that the array might or might not include the person who had
robbed him.  The driver picked out Kelly as his robber, "spott[ing] him right
away."  The driver testified that he was sure of his identification because of
"[h]is eyes, just the way his eyes were, wide-open.  I saw the eyes so clear. 
All of the other pictures you looked at, the eyes aren't the same thing, not
like that."  The driver testified that the detective then told him that he had
picked out a police officer as his robber, but the driver did not change his
choice.  According to the driver, only then was he told he had picked out
the man the police had in custody for the other robbery.
	[¶9]  Kelly was indicted on two counts of robbery with a dangerous
weapon.{5}  See 17-A M.R.S.A. § 651.  In denying Kelly's motion to suppress
evidence, the court indicated it was "satisfied that under all of the
circumstances there is nothing in this lineup which is necessarily
suggestive."
	[¶10]  At trial, defense counsel wished to present the cab driver with a
photo array that showed a number of sets of eyes and ask him to identify the
"eyes" who had robbed him.  Counsel asked that the driver not be allowed to
see Kelly (and his eyes) prior to this line of questioning.  In order to
facilitate this, the court and the attorneys agreed that the driver would be
asked by the prosecutor to identify the robber as early as possible, and then
Kelly would be excused from the courtroom for the duration of the driver's
testimony.  The prosecutor asked the driver if he saw "in this courtroom
anywhere, do you see the defendant, the person who robbed you that
morning?"{6}  The driver identified Kelly, who, counsel noted in closing
argument, was the only African-American male present.  On cross-
examination, the driver was unable to identify his robber from the array of
eyes presented by defense counsel.
	[¶11]  Prior to trial, Kelly moved for funds for an expert witness who
would testify regarding certain identification issues, contending that there
was a sufficient scientific basis for the jury to hear testimony regarding the
reliability of so-called "cross-racial identifications"; i.e., identifications of
persons of one race by persons of another, and regarding the reliability of
identifications of which the witness professes "certainty."  The court
(Fritzsche, J.), quoting from a decision of the New Jersey Supreme Court,
denied the motion on the basis that, because there is a widely-held belief
that cross-racial identifications were generally of lesser reliability, expert
testimony would not be helpful.  See State v. Cromedy, 727 A.2d 457,
467-68 (N.J. 1999).{7}  At trial, the court instructed the jury that it could
consider whether the respective races of the victim and the defendant had
any bearing on the reliability of the driver's identification.
	[¶12]  DNA analysis on the mask worn by the robber and left at the
scene revealed DNA from at least three persons.  Kelly's DNA was consistent
with one of the DNA samples found on the mask, and the State's DNA expert
was allowed to testify, over the objection of Kelly, that the DNA of only one
person in 20,000 would be consistent with that sample.
	[¶13]  After retiring to deliberate, the jury requested that the
testimony regarding the DNA evidence be read back.  This request was
granted, and following brief additional deliberations, the jury found Kelly
guilty.  Kelly's motion for a new trial on the ground that the statistical DNA
evidence had confused the jury and that the State had withheld exculpatory
evidence was denied, and Kelly filed this appeal.
I.
	[¶14]  Kelly contends the trial court abused its discretion when it
denied his motion for funds for an expert witness who was to have testified
regarding the reliability of cross-racial identifications.
	[¶15]  Rule 702 of the Maine Rules of Evidence provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the
form of an opinion or otherwise.
M.R. Evid. 702.  The trial court "is vested with broad discretion" with
regard to the admission of such expert testimony.  State v. Rich, 549 A.2d
742, 743 (Me. 1988).  Moreover, a defendant is not entitled to funds for an
expert unless the testimony the expert is to provide is found to be
admissible.  See id. (citing State v. Gordius, 544 A.2d 308, 310-11 (Me. 1988)).
	[¶16]  Although we have never addressed the issue of cross-racial
identification, we have repeatedly upheld the exclusion of expert testimony
regarding eyewitness reliability as within the court's discretion.  See State v.
Chapman, 645 A.2d 1, 2 (Me. 1994); Rich, 549 A.2d at 743; State v. Fernald,
397 A.2d 194, 197 (Me. 1979).  We have found no cases, and Kelly has cited
none, holding that it was an abuse of the trial court's discretion to exclude
such testimony or to deny funds to produce such testimony.{8} 
	[¶17]  In denying the motion for funds, the court found that the
testimony would not be helpful to the jury.  Moreover, the trial court did
instruct the jury regarding cross-racial identification consistent with State v.
Comedy, and the parties argued the issue before the jury.  The court's
conclusion that the expert's testimony would not be helpful to the jury is not
clearly erroneous, and its decision to deny funds for that reason was within
its broad discretion.
II.
A.
	[¶18]  Kelly contends the evidence that the victim identified Kelly
from the photo lineup as the perpetrator of the robbery should not have
been admitted because the identification was made on the driver's
extremely limited view of the robber and because of the allegedly suggestive
procedure used by the detective.
	[¶19]  We have held that a two-part test must be applied to determine
whether an out-of-court identification should be admitted in evidence.  See
State v. True, 464 A.2d 946, 950 (Me. 1983) (citing Neil v. Biggers, 409 U.S.
188, 198-99 (1972)).  Initially the defendant must prove, by a
preponderance of the evidence, that the identification procedure was
suggestive; i.e., that it "tended to 'increase the likelihood of
misidentification.'"  True, 464 A.2d at 950 (quoting Biggers, 409 U.S. at
198).  If defendant meets that burden and the court finds the procedure was
suggestive, the State then bears the burden of proving, by clear and
convincing evidence, that in the totality of the circumstances the
identification, although made under a suggestive procedure, is nevertheless
reliable.  See True, 464 A.2d at 950 (quoting Biggers, 409 U.S. at 199).
	[¶20]  Here, the court found that the defendant had failed to meet his
initial burden of showing that the procedure was suggestive, and accordingly
did not address whether, if suggestive, it was nevertheless reliable.  The
driver and the detective each testified that the driver was presented an
array of photographs without any improper, suggestive comments or other
behavior by the detective.  Accordingly, the court's conclusion that the
photo identification was not unduly suggestive is not clearly erroneous.

B.

	[¶21]  Kelly neither objected nor requested a curative instruction
when, at trial, the prosecutor asked the driver if he saw "in this courtroom
anywhere, do you see the defendant, the person who robbed you that
morning?"  When the defendant fails to make a timely objection, we review
for obvious error affecting substantial rights.  See State v. Miller, 1999 ME
182, ¶ 6, 741 A.2d 448, 450.  Here, although the question by the prosecutor
implying that the witness should identify the defendant as the guilty party is
improper, the impropriety was neither "so highly prejudicial [nor did it] so
taint[] the proceedings as virtually to deprive the defendant of a fair trial." 
State v. Pelletier, 673 A.2d 1327, 1330 (Me. 1996); compare State v. Tripp,
634 A.2d 1318, 1320 (Me. 1994) (vacating for obvious error where
prosecutor elicited a statement that another witness had lied on the stand,
in a case where that witness's credibility was a central issue in the case).
III.
	[¶22]  Kelly contends the court abused its discretion when it admitted
the DNA 1-in-20,000 statistic because it was irrelevant and confused the
jury.  The Court reviews "the trial court's evidentiary rulings for clear error
and an abuse of discretion."  State v. Fleming, 1997 ME 158, ¶ 14, 698 A.2d
503, 507 (citing State v. Taylor, 1997 ME 81, ¶ 10, 694 A.2d 907, 910).
	[¶23]  In Fleming, we held that, once DNA evidence is heard by the
jury, testimony regarding "the degree to which . . . a match suggested" the
presence of the defendant became relevant.  See Fleming, 1997 ME 158,
¶ 15, 698 A.2d at 507.  Here, Kelly withdrew his motion with respect to the
DNA expert's testimony in general, conceding that this testimony was 
relevant and admissible.  Further statistical testimony suggesting that Kelly
may have used the mask became relevant as well.
	[¶24]  The remaining question is whether, though relevant, the
evidence should nevertheless be excluded as unduly prejudicial or as likely
to mislead the jury.  See M.R. Evid. 403.  Kelly contends that this case is
similar to State v. Eaton, 669 A.2d 146 (Me. 1996), in which the Court held
that the trial court had abused its discretion when it admitted expert
testimony that hair found at the crime scene were "not dissimilar" to the
victim's hair.{9}  Id. at 149.  The Court found that the statement could lead a
jury "to conclude that the hairs found in the truck were the victim's, when
in fact the testimony technically meant only that the hair match was
inconclusive."  Id.  Here, the testimony at issue is of a different character. 
The statement that only one in 20,000 persons have DNA consistent with
that found in the mask is not a vague proposition, as is that two hair samples
are "not dissimilar."  Although Kelly contends that the prosecutor
misrepresented the meaning of this evidence in his closing argument,{10}
Kelly's remedy was to object before the trial court that the prosecutor had
misstated the facts.  Cf. State v. Weeks, 634 A.2d 1275, 1276 & n.1 (Me.
1993).  Kelly made no such objection.  The trial court's decision to admit
the statistical evidence was within its broad discretion.
IV.
	[¶25]  Finally, Kelly contends the court erred when it denied his
motion for a new trial.  Kelly based the motion in part on what he terms as
the State's prejudicial failure to disclose Bean's knowledge that the
defendant had worn the mask prior to the robbery.  As the State points out,
however, the court, in denying the motion for a new trial, relied on the fact
that Kelly's counsel was fully aware that defendant had worn the mask on at
least one occasion prior to the time of the robbery.
	On a motion for a new trial based on newly discovered
evidence, the defendant must show, by convincing evidence, the
following:  "(1) That the evidence is such as will probably change
the result if a new trial is granted;  (2) that it has been
discovered since the trial;  (3) that it could not have been
discovered before trial by the exercise of due diligence;  (4) that
it is material to the issue;  and (5) that it is not merely
cumulative or impeaching, unless it is clear that such
impeachment would have resulted in a different verdict."
State v. Marshall, 491 A.2d 554, 559 (Me. 1985) (quoting State v. Lord, 458
A.2d 432, 433 (Me. 1983)).  When the "newly discovered" evidence is
"merely corroborative of evidence which [the defendant] could himself have
presented, and which he elected not to disclose, to the jury," the defendant
is estopped "from seeking a new trial on the ground of newly discovered
evidence."  State v. Harding, 408 A.2d 1003, 1005 (Me. 1979).
	[¶26]  Here, Kelly's counsel admitted that he knew Kelly had
previously worn the mask.{11}  Moreover, Kelly presumably knew that Bean,
and perhaps others, had seen him wearing the mask, and Kelly certainly
knew that he had worn it himself.  Accordingly, the "newly discovered
evidence" merely corroborates that which Kelly knowingly elected not to
disclose to the jury.  Kelly is thus estopped from using that ground as a basis
for seeking a new trial, and the court's denial of his motion was well within
its discretion.
	The entry is:
Judgment affirmed.
             
Attorneys for State: Michael P. Cantara, District Attorney Jon C. Gale, Asst. Dist. Atty. David D. Gregory, Esq., of counsel (orally) P O Box 399 Alfred, ME 04002-0399 Attorney for defendant: Gregory O. McCullough, Esq., (orally) P O Box 910 Sanford, ME 04073
FOOTNOTES******************************** {1} . Kelly was sentenced to 18 years, all but 8 suspended, and 6 years probation. {2} . The driver testified that it was his practice to keep the bulk of the money he carried separately, apparently to help foil robbery attempts. {3} . Defense counsel's theory of the case seems to have been that this person, who was also African-American, had in fact been the man who robbed the cab driver. {4} . The cab driver was not initially presented with a photo array because the detective thought the driver had not "seen the robber's face well enough." {5} . One count, relating to the robbery of the other man, was dismissed by the State just prior to trial. {6} . Kelly suggests this was an improper statement. The State characterizes it as a "slip of the tongue" corrected by the prosecutor. No objection was made at trial. {7} . In Cromedy, the New Jersey court held that, although not entitled to expert testimony, the defendant was entitled to a jury instruction on this issue. See Cromedy, 727 A.2d at 467-68. {8} . See United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) (holding it was not an abuse of discretion to exclude testimony); United States v. Serna, 799 F.2d 842, 849 (2d Cir. 1986) (same), abrogated on other grounds, United States v. DiNapoli, 8 F.3d 909, 914 n.5 (2d Cir. 1993); State v. Garner, 523 S.E.2d 689, 695 (N.C. 1999) (holding it was not an abuse of discretion to deny funds); State v. Miles, 585 N.W.2d 368, 371-72 (Minn. 1998) (holding it was not an abuse of discretion to exclude testimony); McMullen v. State, 714 So. 2d 368, 373 (Fla. 1998) (same); State v. Gardiner, 636 A.2d 710, 714 (R.I. 1994) (same); State v. Cotton, 394 S.E.2d 456, 460 (N.C. Ct. App. 1990) (same); Dewberry v. State, 743 S.W.2d 260, 268 (Tex. Ct. App. 1987) (holding not an abuse of discretion to deny funds), rev'd on other grounds, 776 S.W.2d 589 (Tex. 1989); see also State v. Gaines, 926 P.2d 641, 649 (Kan. 1996) (expert testimony regarding eyewitness identification is never admissible). But see People v. McDonald, 690 P.2d 709, 726 (Cal. 1984) (holding court abused its discretion when it excluded psychologist's testimony regarding host of identification issues, among which was cross-racial identification). {9} . We ultimately upheld the guilty verdict, however, concluding that even though the expert evidence should have been excluded, there was other evidence sufficient to sustain the defendant's guilt beyond a reasonable doubt. See id. at 149. {10} . It is not clear that the prosecutor did in fact misrepresent the thrust of the statistical evidence. In his closing argument, the prosecutor stated that "the mask left at the scene had evidence that Bobby Llamar Kelly had worn it," and that "the mask . . . has evidence of Bobby Llamar Kelly's DNA." These statements do not go so far as to claim that Kelly's DNA was actually on the mask. Instead, these statements can be understood to refer only to the fact that the DNA found in the mask did not rule Kelly out as the robber. {11} . For this reason, we find no error under Brady v. Maryland, 373 U.S. 83 (1968). In that case, the Supreme Court made it clear that the rule requiring disclosure of exculpatory evidence by the prosecutor is based on the principle of "avoid[ing] . . . an unfair trial to the accused." Id. at 87. When the defendant is aware, before trial, of the exculpatory evidence alleged to have been withheld, he cannot claim that there has been an unfair trial in violation of due process. See United States v. DeLeo, 422 F.2d 487, 499 (1st Cir. 1970), cert. denied, 397 U.S. 1037 (1970).