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STATE v. McINTYRE3/8/1996
The opinion of the court was delivered by
This is a direct criminal appeal from convictions of two counts of first-degree murder following a jury trial. Lamonte McIntyre alleges the following errors: (1) The trial court erred in failing to give an instruction regarding eyewitness identification; (2) the State failed to disclose evidence in its file relating to the issue of guilt; (3) the trial court erred in not considering all of the eight factors set out in K.S.A. 38-1636 (e) in certifying him to be tried as an adult; and (4) there was insufficient evidence to convict him of the offenses. Finding no reversible error, we affirm.
On April 15, 1994, Donald Ewing and Doniel Sublette were shot and killed as they sat in a car in Wyandotte County, Kansas. McIntyre, age 17, was charged with two counts of first-degree murder in connection with the killings.
Two eyewitnesses identified McIntyre as the shooter. Niko Quinn, who lived near the scene of the crime, testified that at 2 p.m. on April 15, she was walking out of her house when she noticed a blue car parked up the street. She stated that there were two people in the car, although she could not see who they were. Quinn began to walk up the street to use the telephone when she saw someone running through a nearby vacant lot. As Quinn watched, the individual approached the parked car armed with what looked like a shotgun, walked up to the passenger side of the car, and began shooting. Quinn stated the individual was a black male, dressed in black. She also testified she later found out the two victims were her cousins, Donnie Ewing and Doniel Sublette.
The next day, the police asked Quinn to look at a series of photographs. She told Detective Roger Golubski she did not know if any of the pictures she was shown were of the shooter. A week later she called Golubski and told him that she could positively identify the shooter. At trial, Quinn identified McIntyre as the shooter.
Golubski testified that during the course of the investigation, McIntyre's name surfaced as a possible suspect. Various sources mentioned that McIntyre might have been involved, and as a result, McIntyre's picture was included in the photo lineups shown
to eyewitnesses Quinn and Ruby Mitchell. According to Golubski, when Quinn first looked at pictures in the lineup, she was very deliberate in looking at each one. When she came to the picture of McIntyre, she held onto the photograph, became teary-eyed, and was shaking. However, she told him that she was not sure whether that person was the shooter. Within a week, she called him and asked to meet him at a neutral location to look through the photos. She then picked out McIntyre's photograph as that of the shooter.
On cross-examination, Golubski was asked whether he had told anyone about showing Quinn the photographs a second time. He answered that he had not notified anyone until after the preliminary hearing.
After Golubski was excused from the stand, and out of the presence of the jury, the defendant's attorney asked the court to be allowed to make a record. McIntyre's counsel then stated, "I would like to know when [the prosecutor] was advised by Detective Golubski of this second photo lineup." The prosecutor answered that she was not sure when she had been told of the lineup but that she did not feel a duty to disclose it because it was not exculpatory evidence. She admitted there was nothing in the file about the lineup. McIntyre's counsel stated that he did not believe that there was a second photo lineup and that Golubski was not being truthful. However, the trial court noted that McIntyre's counsel had the chance to cross-examine Go
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