Reference to "mug shot" requires limiting instruction

Adam M. Stolte won in State v. Berney, No. 111,407 (Kan. App. July 10, 2016), obtaining a new trial in a Sedgwick County theft prosecution.  The issue on appeal was the failure to give a limiting instruction after the prosecution introduced evidence that Mr. Berney was identified in a line-up using a "mug shot" suggesting prior arrests or convictions.

The COA observed that the officer referenced the "mug-shot" system five times and concluded that "these references at least suggest that Berney had previously been arrested." While the COA recognized that "an arrest is most assuredly not the same as a conviction, it is at least some evidence that the defendant had committed a prior wrong." As a result, the panel held that a limiting instruction should have been given.

After reviewing the record, the panel distinguished this case from prior cases that had held that reference to a mug-shot does not result in clear error if there was strong evidence to support the jury's verdict. The panel concluded that the jury did not hear such strong evidence in this case, and therefore failure to give the limiting instruction was clear error and required reversal.

For appellate nerds, Judge Leben's concurring opinion will be interesting too. It revolves around what is required to show "clear error." For decades the test for clear error was "firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred."  In 2012 (and since), the Kansas Supreme Court described "clear error" as "firmly convinced that the jury would have reached a different verdict had the instruction error not occurred." This appears to be taking out the "real possibility" language. But Judge Leben observed that the Kansas Supreme Court, in State v. Trujillo, 296 Kan. 625 (2013) explicitly noted that it did not mean to change the substantive test, it merely took out the "real possibility" language to avoid confusion with its recently articulated tests for constitutional and nonconstitutional harmless error. As Judge Leben notes, this distinction is important. It is still proper to consider the impact of an error in terms of "possibilities" under the clear error test.

[Update: the state did not file a PR and the mandate issued on August 13, 2015.]