Summary
The Utah Supreme Court affirmed Darryl Hubbard’s convictions for aggravated robbery, aggravated burglary, and aggravated assault. The court held that the trial court did not abuse its discretion by excluding expert testimony on eyewitness-identification reliability and that the photo-array identifications were sufficiently reliable and not impermissibly suggestive under the federal or Utah constitutions. The court also addressed the defendant’s claim concerning sidebar voir dire conducted outside his presence.
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Practice areas
Questions Presented
- Whether the district court abused its discretion by excluding expert testimony regarding the fallibility and reliability of eyewitness identification.
- Whether the pretrial photo array was impermissibly suggestive or the resulting eyewitness identifications were constitutionally unreliable under the Due Process Clauses of the United States and Utah Constitutions.
- Whether conducting sidebar voir dire discussions with prospective jurors outside Hubbard's presence and off the record violated his right to be present, and whether any such error was waived or constituted plain error.
Holdings
- A trial court has discretion to exclude proposed expert testimony on eyewitness-identification reliability when the testimony would amount to a lecture instructing the jury how to weigh eyewitness evidence, particularly where the court gives an appropriate cautionary eyewitness-identification instruction. The district court did not abuse its discretion in excluding Hubbard's expert testimony.
- The photo array was not impermissibly suggestive, and the eyewitness identifications were sufficiently reliable under both federal and Utah due process standards. Admission of the identification testimony therefore did not violate the Fourteenth Amendment or article I, section 7 of the Utah Constitution.
- Assuming without deciding that a defendant has a right to be present during sidebar discussions with prospective jurors, Hubbard waived that right by failing to object or otherwise assert it. Because the right was waived, the trial court committed no plain error.
Key quotations
“We have not adopted a per se rule of inadmissibility of expert testimony regarding eyewitness identification.” (¶ 14)
“Courts must simply decide whether the testimony was sufficiently reliable so as not to offend defendant's right to due process by permitting clearly unreliable identification testimony before the jury.” (¶ 30)
“We hold that (1) the trial court did not exceed its permitted range of discretion in not allowing an expert witness to testify regarding the fallibility of eyewitness identification, (2) the trial court did not err in denying the motion to suppress testimony about the pretrial photo identifications because the identification testimony regarding the photo array was not violative of the due process clauses of the United States and Utah Constitutions, and (3) the defendant waived any right he may have had to be present while the trial court conducted voir dire of prospective jurors at sidebar.” (¶ 35)
Factual background
An armed assailant entered Jeffrey Gunderson's basement apartment after identifying himself as “Six Nine,” shot Gunderson in the leg, restrained Cheryl Moss, threatened the occupants, and took cash and marijuana from a safe. Gunderson and Moss promptly described the assailant to police, and approximately three weeks later each independently identified Hubbard from a six-photo array containing photographs of similarly appearing African-American men with goatees. Gunderson and Moss identified Hubbard at trial, and the trial court gave a cautionary Long eyewitness-identification instruction.
Procedural history
The district court denied Hubbard's motion to suppress the eyewitness identification testimony and denied his request to present expert testimony concerning the fallibility of eyewitness identification. During jury selection, the court conducted sidebar discussions with prospective jurors without Hubbard present and without a record of the discussions. The jury convicted Hubbard of aggravated robbery, aggravated assault, and aggravated burglary, and the Utah Supreme Court affirmed.