Summary
The Kentucky Supreme Court affirmed Edward Jacobsen’s convictions for first-degree robbery and second-degree persistent felony offender enhancement. The court held that eyewitness identifications from a six-photo array were not unduly suggestive, that voir dire was properly limited to the unenhanced penalty range, and that prosecutorial errors during voir dire and closing argument did not require a mistrial. The court also upheld limiting retrial after a penalty-phase mistrial to a new penalty phase.
Topics
Practice areas
Questions Presented
- Whether the trial court erred in denying the motion to suppress eyewitness identifications because the photo array was unduly suggestive.
- Whether the trial court erred in limiting voir dire to the unenhanced penalty range for the indicted offense, precluding questioning about PFO-enhanced penalties.
- Whether the trial court erred in denying a mistrial after the prosecutor's voir dire reference to the unlocated gun.
- Whether the trial court erred in denying a mistrial after the prosecutor's closing argument referenced scientific studies not in evidence.
- Whether the trial court erred in denying a motion for a new trial after a penalty-phase mistrial, limiting retrial to sentencing only.
Holdings
- The photo array was not unduly suggestive; therefore, the due process inquiry ended and the identifications were admissible.
- The trial court correctly limited voir dire to the unenhanced penalty range under Lawson v. Commonwealth.
- The trial court did not abuse its discretion in denying a mistrial because the prosecutor's comment was not flagrantly improper and an admonition could have cured any error.
- The trial court's admonition cured the prosecutor's improper reference to studies not in evidence, so no mistrial was required.
- The trial court properly limited retrial to the penalty phase; a new sentencing jury may be impaneled when the original jury is discharged for good cause in a PFO proceeding.
Key quotations
“Ladies and gentlemen of the jury, let me clarify something for you because a comment was made by the prosecutor, about studies, about reliability of eyewitness identification. There was no testimony about studies other than what Dr. Fulero testified. So I'm going to strike from the record any reference about studies that were not introduced into evidence. So please ignore that last statement made by the prosecutor in this case; you're only to consider evidence that's presented at trial, all right?” (at 610)
“The victim in this case will tell you that ... the defendant pointed a gun at her during the course of a robbery. The gun was never located. The law doesn't require the Commonwealth to bring you that gun. But if we prove to you beyond a reasonable doubt that this ... theft was committed with a gun, can everybody find the defendant guilty? Do we have to bring you the actual gun? Does everybody understand we don't have to bring you the gun? And why is that? I mean, who's responsible for a weapon after a crime is committed?” (at 609)
“The bottom line is the studies that Dr. Fulero has shown you are studies that talk about the unreliability of eyewitness testimony, but there's a whole other line of studies that talk about the reliability of eyewitness testimony.” (at 610)
Factual background
On September 5, 2008, Dena Fallon, manager of a Cash Advance store in Lexington, was robbed at gunpoint by an older man. She described the robber to police. A property manager, Lori Harris, provided surveillance footage and descriptions. Based on a tip from a former employer, police prepared a six-photo array; both Fallon and Harris identified Jacobsen. Jacobsen was arrested in February 2009, driving a white Chevrolet S-10 pickup truck. At trial, he presented an alibi defense and expert testimony on eyewitness reliability.
Procedural history
Jacobsen was indicted in March 2009 for first-degree robbery and receiving stolen property. The charges were severed, and the robbery charge was tried in March 2010. The jury found him guilty, and during the penalty phase a mistrial was declared due to a 'golden rule' violation. A new sentencing jury was empanelled, which found him to be a second-degree persistent felon and recommended a thirty-year sentence. Jacobsen appealed.