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State v. Collins

Court of Appeals of Iowa

November 22, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
KEITH MECO COLLINS, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         The defendant appeals from his conviction for first-degree murder. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Zachary C. Miller, Assistant Attorneys General, for appellee.

          Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

          POTTERFIELD, Judge.

         Keith Collins appeals from his conviction for first-degree murder. He claims: (1) the trial court should have granted his motion to suppress the evidence of the photo array and out-of-court identifications because the array was impermissibly suggestive and unreliable, (2) counsel was ineffective for failing to request a more detailed eyewitness-identification jury instruction incorporating system and estimator variables, (3) counsel was ineffective for failing to request a jury instruction on the Heemstra[1] requirements for the assault element of the predicate felony of robbery, and (4) the sentence was illegal. Because the photo array was not impermissibly suggestive, counsel did not have a duty to request a more detailed jury instruction on eyewitness identification or on the assault element of robbery, and the sentence was not illegal, we affirm.

         I. Background Facts and Proceedings.

         On November 7, 2016, police officers discovered the dead body of Aaron McHenry with multiple gunshot wounds to the shoulder, arm, chest, and head. The shooting occurred on a dead-end street at the twenty-six hundredth block of Hickman Lane in Des Moines, Iowa.

         Following the shooting and after finding a cell phone connecting Collins to the murder, the police presented a six-person photo-array depicting Collins and five other individuals to several residents in the neighborhood. Shirley Dick, a local resident, said she spoke with Collins while chasing her dog through the neighborhood around the time of the shooting. Dick identified Collins in the photo array. Dick also claimed she had seen Collins in the neighborhood at an earlier time.

         P.D., another local resident, saw two males through a window of her house-one was running and one was "speed walking." P.D. told law enforcement the speed-walking person was familiar to her because he attended the same high school and people thought he looked like Bobby Shmurda.[2] The police created a photo-array for P.D. containing a picture of Collins, another student resembling Collins, and four other individuals. P.D. identified Collins.

         On December 18, 2014, the State charged Collins by trial information with the crime of first-degree murder. In February 2016, Collins filed a motion to suppress evidence related to Dick's and P.D.'s out-of-court identification of Collins and "any testimony of the witness's identification by way of the photo array, " claiming the photo array used in the identification process was impermissibly suggestive. Collins argued the age of the individuals in the lineup varied, the background color on his picture varied from the other individuals, and the size of his head is smaller than the other individuals' heads. The State argued the discrepancies were inconsequential.

         At the March 25, 2016 suppression hearing, during direct examination by the State, Officer Lorna Garcia testified about the creation of the photo arrays:

Q. How do you typically gather your photographs to put together a photo array? A. Really our only options for juveniles are school photos, if they have a driver's license which oftentimes they don't, booking photos which we usually don't have for juveniles and so really our only option, really only photo we had access to at this time was the photo that was in the Des Moines Public Schools' database.
Q. Was the photo that the Des Moines Public Schools had in their database, did that have a background that's similar to a driver's license photo? A. No.
Q. What was different about the photo that you had of Mr. Collins? A. It was a bright yellow background, which was kind of unusual.
Q. Typically what is the background of a driver's license photo? A. It's a blue, light blue.
Q. Did you or one of the other officers at the station attempt to do something to the photograph to remove the yellow background? A. Yes.
Q. How did you select the photos of the individuals that were in the lineup? A. Same process as the previous lineup with [E.F.]. I went again to my database of photos. I picked out pictures of black males that appeared to be the same age as the defendant and similar in appearance.
Q. In the defense's motion they have challenged the lineup and one of the grounds that they have challenged it on is they are alleging that there was nobody that has approximately the same birth date as Mr. Collins in the photo array. Is that true that the date when these individuals were born, that it was not the same year necessarily as Mr. Collins? A. Correct.
Q. But that doesn't really completely tell the whole story, does it? Because you have indicated that the photographs that you have in your database are photographs that you have used before. Are those photographs of individuals that were approximately the same age as the defendant at the time the photographs were taken? A. Yes. And, in my opinion, the appearance was of the same age range.
Q. So even if they weren't the exact same age, your take on it was they at least looked to be the same age? A. Yes.
Q. Were there any startling differences between the photographs? A. No.

         On cross-examination, the officer continued the explanation of her process in selecting the photographs:

Q. When you determined from looking at the photos who you were going to place in the photo array, did you look at the birth dates? A. I did not.
Q. Did you subsequently learn that three of the individuals were nearly six years or even over six years older than Mr. Collins? A. Yes.
Q. One was I think it's two years older than Mr. Collins, right, and one was four years older. A. Yes.
Q. Before you select photos to include in a photo array, are you able to look at their dates of birth? A. Yes. If I am doing jail booking photos, sure, I can do an age range, that's how we search. But when I was using my database, I don't search. I look for similar photographs.
Q. When you say your "database, " you just mean the photos you have collected on your computer? A. Yes.
Q. There is actually a database that assists in gathering up and finding photos for law enforcement and you have access to that, right? A. Which one are you talking about?
Q. The jail booking photos and license photos, those databases you can search by dates of birth. A. The jail booking I can and then I would have to use that information to plug in to find comparison photos. It's a little more difficult for DL photos but, yes.
Q. You didn't do that in selecting the photos in this case. A. No.

         Officer Garcia testified the photo array containing the picture of Collins was shown to P.D. at approximately 1:00 a.m. and to Dick at approximately 1:18 a.m. at the respective residences of the witnesses. The officers testified that both witnesses were asleep when they arrived to present the photo arrays.

         Officer Brad Youngblut also testified during direct examination by the State about his ...


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