DAVID MOSS V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : AUGUST 27, 2009
';VUyr :VMr
(~Vurf
of ~i
2008-SC-000068-MR
DAVID MOSS
V.
a
_.K4APPELLANT
Al
oq
ON APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
NO. 07-CR-00052
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On November 28, 2007, Appellant, David Moss, was convicted in
Muhlenberg Circuit Court of one count of second-degree burglary, one count of
second-degree robbery, and being a first-degree persistent felony offender. He
was sentenced to twenty years in prison . Appellant now appeals his conviction
as a matter of right. I
BACKGROUND
On April 2, 2007, at around 3 :15 a.m., Rose Mary Buchanan awoke in
her bed and noticed a shadow in the hallway outside her bedroom. She
attempted to call 911 with her cell phone, but before she could complete the
1 Ky. Const . ยง 110(2)(b) .
call, a man grabbed her wrist and took away the phone and asked her where
her money was. Although she did not have any lights on in her bedroom, she
testified that the bedroom door was open and the light in the hall bathroom
was on .
Ms. Buchanan testified that she believed that her purse was in the
kitchen, so she got out of bed and went down the hallway to the kitchen with
Appellant behind her in the hallway. At this point in time, Ms . Buchanan
admitted that she had not seen the man's face, but could tell that the intruder
was a large man.
Once in the kitchen, Ms. Buchanan stated that there was a light on in
her pantry which illuminated the room, and a "torch light" (later described as a
standing lamp) on in her living room, which was adjacent to her kitchen and
dining room. She retrieved her purse from one side of the kitchen and dumped
its contents onto the counter. Ms. Buchanan did not have any cash, but she
offered the intruder her debit card and food stamp card . She testified that at
this time, the intruder was standing two to three feet from her and with the
pantry light, she was able to see his face when she offered him her cards .
From there, she testified that the intruder moved into the living room
and stood by the lamp for about 30 seconds, approximately six feet from where
she stood . She stated that she could see him in the light and that he then
asked her for jewelry. She told him she was poor and had none. At this point,
one of Ms. Buchanan's sons came running into the kitchen. She testified that
at this point, the intruder moved further into the living room and she followed
him because she was concerned he might be going down the hall to a room
where her other two children were sleeping. She stated that the intruder then
took her backpack and cell phone and left through the front door.
Ms. Buchanan did not have a landline, so she went to her sister's house
to call the police. During this call, Ms . Buchanan gave a. description of the
man. At 4:05 a.m., Sheriffs Deputy Terry Nunley arrived at Ms. Buchanan"s
sister's home and took her written statement where she described the intruder
as a black male in his 40s or 50s who smelled like smoke. She said he was
big, approximately 200-300 pounds, wearing a dingy white shirt, and maybe
some facial hair. Subsequent to the statement, she told Deputy Nunley that
the man was also wearing some type of hat, which she called a "doo rag."
Shortly thereafter, Deputy Nunley received communication from the Central
City Police that a man that fit Ms. Buchanan's description had been taken into
custody and he asked Ms . Buchanan if she thought she could identify the man
who had broken into her home. She thought that she could, so Ms. Buchanan
and Deputy Nunley traveled to the intersection of Highway 431 and the
Western Kentucky Parkway. When Ms. Buchanan and Deputy Nunley arrived,
while she sat in the backseat of Deputy Nunley's car, the police brought
Appellant, in handcuffs, in front of the car's headlights . From the back seat,
Ms . Buchanan identified him as the man who had broken into her home.
Deputy Nunley then arrested the man, who was wearing a dingy shirt and a
"doo rag" type hat on his head.
Twenty-six days later, Deputy Nunley brought a photo lineup with six
photos to Ms. Buchanan's home . She again identified Appellant as the man
who had broken into her home on April 2, 2007.
On May 23, 2007, the circuit court held a hearing on Appellant's motion
to suppress both out-of-court identifications Ms. Buchanan made . After
hearing testimony from Ms. Buchanan and Deputy Nunley, the trial court
denied the motion to suppress, after applying the factors set forth in Neil v.
Biggers., 409 U.S. 188 (1972) and looking at the totality of the circumstances .
Appellant was thereafter tried by a Muhlenberg Circuit Court jury . At
trial, Appellant presented testimony of Dr. Solomon Fulero, who testified as to
eyewitness identifications and reliability concerns, in particular, the
unreliability of cross-racial identifications, as occurred in this case . Appellant
was found guilty of one count of second-degree burglary, one count of seconddegree robbery, and being a first-degree persistent felony offender. He was
sentenced to twenty years in prison .
On appeal, Appellant alleges that the trial court erred by failing to
suppress both out-of-court identifications by Ms. Buchanan. We disagree and
affirm the ruling of the trial court .
ANALYSIS
When reviewing a trial court's denial of a motion to suppress, we utilize
the standard set forth by the United States Supreme Court in Ornelas v. United
States, 517 U.S. 690, (1996), which was adopted by this Court in Adcock v.
Commonwealth, Ky., 967 S.W.2d 6 (1998) . The approach in Ornelas is a two-
step process. First, we review factual findings using the clearly erroneous
standard . Strange v. Commonwealth , 269 S.W.3d 847, 849 (Ky . 2008) . That
is, we must determine whether the findings of fact are supported by substantial
evidence. RCr 9 .78 . Second, we review de nouo the trial court's application of
the law to the facts. Strange, 269 S.W .3d at 849.
During the suppression hearing, Ms. Buchanan and Deputy Nunley
testified as to the events of the morning of April 2, 2007. As summarized
above, we discern no clear error regarding the pertinent factual findings.
As we have noted before, show-up identifications are generally disfavored
due to their inherent suggestiveness and likelihood of misidentification, but
they are necessary under certain circumstances, because they "occur
immediately after the commission of the crime and aid police in either
establishing probable cause or clearing a possible suspect." Merriweather v.
Commonwealth, 99 S.W.3d 448, 451 (Ky. 2003) . To determine the reliability of
an identification and whether the identification violated a defendant's due
process rights, despite a suggestive identification procedure such as was used
in this case, we examine the five factors outlined in Neil v. Big ers, 409 U .S.
188 (1972), which include: 1 . the opportunity of the witness to view the
criminal at the time of the crime; 2 . the witness' degree of attention; 3 . the
accuracy of the witness' prior description of the criminal; 4. the level of
certainty demonstrated by the witness at the confrontation; and 5. the length
of time between the crime and the confrontation. Id. at 199.
Ms. Buchanan had several opportunities to view the intruder during the
burglary and robbery. According to her testimony, she was with the intruder
for approximately three minutes in the kitchen and living room. Both rooms
had lights on that allowed her to see his face. While in the kitchen, she stood
just two or three feet away from him and was able to view his face when she
offered him her debit card and food stamp card. When he moved into the living
room, he stood next to the lamp and she was again able to view his face .
Ms . Buchanan paid close attention to the intruder. She observed his
face from only a couple of feet away while in the kitchen and watched him
while he stood in the living room .
Her description of the intruder was very similar to that of Appellant. She
told police the intruder was a black male in his 40's or 50's, that he was 200300 pounds, had a dingy shirt on, maybe had some facial hair, and he had a
doo rag on his head. Appellant is a black male who was 46 years old at the
time of his arrest. He weighed between 200 and 300 pounds, had facial hair,
was wearing a dingy shirt and was wearing a hat as described by Ms .
Buchanan .
At the show-up, Ms . Buchanan was very confident that Appellant was
the intruder in her home. Finally, the show-up occurred within two hours of
the crime. The intruder entered Ms. Buchanan's home around 3 :15 a.m. and
the show-up took place at 4:53 a. m.
Other circumstances enhance the reliability of Ms . Buchanan's
identification . On the way to the show-up, Deputy Nunley did not refer to the
Appellant as a suspect. He only stated that the police had someone who
matched the description Ms. Buchanan had given of her intruder. Appellant
was picked up approximately one mile from Ms . Buchanan's residence in a
rural, unpopulated area in the early morning hours . The five factors in Bi
ers
and the totality of the circumstances indicate that Appellant's due process
rights were not violated by the show-up identification .
With regard to the later photo lineup, we recognize that subsequent
identifications can be tainted because the "witness thereafter is apt to retain in
his memory the image [of the person identified at the first misidentification]
rather than of the person actually seen." Simmons v. United States, 390 U .S .
377, 383-84 (1968) . However, in this case, considering the factors as
discussed above and the totality of the circumstances, we cannot say that the
photo lineup identification was unreliable .
Accordingly, we affirm the decision of the trial court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort:, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
