Tuesday. July 26, 2005
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Showing Witness Photo of Tattooed Murder Defendant Was Not Unduly Suggestive, High Court Rules
By KENNETH OFGANG, Staff Writer
Showing a witness a photo of a murder suspect without a shirt on, revealing tattoos depicting a swastika, guns, and the name of a motorcycle gang, was not an unduly suggestive technique, the California Supreme Court unanimously ruled yesterday.
Saying the identification technique was reasonable under the totality of the circumstances, and rejecting several other contentions, the court affirmed the first degree murder conviction and death sentence imposed on Jerry Noble Kennedy by a Colusa Superior Court judge.
Kennedy was convicted of shooting Glen Chambers to death during a robbery during the early morning hours of March 15, 1993 at a rest stop off Interstate 5. A key witness for the prosecution was Janet Madsen, who testified that she was asleep in the passenger seat of her friend’s parked car when she heard a gunshot, and then saw Kennedy coming out of the restroom, the victim staggering out a moment later and collapsing.
Madsen also gave a description of the getaway car.
Police were led to Kennedy after learning that one of Chambers’ credit cards had been used to hire a limousine in Sacramento. Police there were notified and gathered at an intersection near the address where the limousine was to meet its party.
Spotting a car matching the description given by Madsen, they followed it to a convenience store and detained the occupants. The sheriff of Colusa County, who had joined the local officers, asked one of the occupants, Doreen Westbrook, “Who shot the guy” at the truck stop, to which she responded “Termite,” a nickname for Kennedy.
The other occupants said Kennedy told them that he had shot someone at a restaurant and taken the victim’s credit cards. Police found Chambers’ credit cards in the yard of the defendant’s apartment and on a nearby balcony.
After Kennedy was arrested and his photo appeared in a newspaper, Madsen expressed concern that the police had the wrong man, because Kennedy had a beard and Madsen had described the killer as clean-shaven. But after looking at a photo of Kennedy without his shirt on, and at a videotape of his arrest, she exclaimed, “Oh, my God, that’s him, and I don’t know how I missed that beard.”
Madsen then accompanied police to a garage, where she identified the getaway car. She identified Kennedy in court on two occasions, at a pretrial hearing on a motion to suppress the identification and at trial.
Justice Joyce L. Kennard, writing for the high court, said the trial judge was correct in allowing the identification into evidence. She cited the opportunity that Madsen had to see the defendant at the time of the crime, and the fact that she was “quite positive” that Kennedy was the man as soon as she saw his eyes—which were not prominent in the photographs—on the videotape.
The justice also rejected Kennedy’s challenge to the death sentence, citing a number of aggravating circumstances found by the trial judge, including a lengthy criminal record that culminated in Kennedy’s release on parole just 10 days before the murder.
The case is People v. Kennedy, 05 S.O.S. 3715.
Copyright 2005, Metropolitan News Company