Burglary Conviction Affirmed

State v. Collier

Derek Vander Collier appeals his conviction for second- degree burglary, arguing the trial court improperly limited his closing argument, erred in allowing the State to play recordings of two police interviews, and should not have allowed a witness to identify him in front of the jury.

  1. During trial Justin Kirkman, an eyewitness to the burglary, testified for the State. During his testimony, the defense pointed out several inconsistencies between his testimony and his prior statements to police. The State attempted to rehabilitate Kirkman with prior consistent statements, and defense counsel objected. The trial court indicated that it would allow the State to introduce Kirkman’s prior consistent statements if the defense intended to argue that Kirkman was fabricating his testimony and was “lying to save himself from going back to jail” (it was revealed on cross exam that Kirkman was on probation for unrelated charges). Defense counsel informed the court that the defense would not present such an argument, and consequently the State was prohibited from introducing Kirkman’s prior statements. During closing argument, however, defense counsel made this very argument, stating, “You tell me who has got motivation. Justin Kirkman has motivation, already convicted felon[,] already on probation.” The State objected, and the trial court prohibited counsel from making this argument again, pursuant to its prior ruling. The Court of Appeals holds that the trial court did not abuse its discretion in limiting counsel’s closing argument in this way. The Court further notes that any error on the part of the trial court would be harmless, in particular because counsel’s remarks were not stricken from the record, nor was the jury instructed to ignore or disregard the argument.
  2. Next, Collier challenges the introduction of two custodial statements he made, in which he implicated himself in the burglary at issue in this case. Specifically, Collier argues that he was under the influence of crack cocaine when one of the statements was made, and that he wouldn’t have made the subsequent statements but-for the first statement. The Court of Appeals quickly dispenses with this issue, holding that the trial court did not abuse its discretion in admitting the statements at trial.
  3. Finally, Collier argues the trial court should not have allowed Kirkman to identify him before the jury because the pretrial identification procedure was unduly suggestive. Specifically, Collier argues that he was the only person depicted in the lineup who, like the person Kirkman confronted, wore a hooded sweatshirt. The Court of Appeals rejects this argument, noting that there was no evidence of suggestive police tactics. Further, the Court notes that the trial court properly weighed the applicable factors in allowing Kirkman to make an in court identification of Collier during trial. Bearing this in mind, the Court holds that Kirkman’s identifications of Collier did not mandate reversal of his conviction.

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