Opinion
No. 03-10151-01-WEB.
August 26, 2004
Memorandum and Order
This matter came before the court on August 25, 2004, for a hearing on pending motions. The court took up the following matters at the hearing: (1) Defendant's Motion to Suppress Identification (Doc. 90); (2) Government's Motion in Limine and for a James Hearing (Doc. 99); (3) Letter from defense counsel concerning possible dismissal of counts; and (4) Government's Motion to Strike Defendant's Notice of Alibi (Doc. 106). The court ruled orally on these matters in the course of the August 25th hearing. This written memorandum will supplement the court's oral ruling.
1. Defendant's Motion to Suppress Identifications.
The defendant moves to suppress evidence of several photo-array identifications in which eyewitnesses identified the defendant as the person they saw during a robbery of the Topeka Carlos O'Kelly's restaurant on January 24, 2002 (Counts 3, 4 and 5 of the Third Superseding Indictment). Defendant argues that these lineups were unnecessarily suggestive and are unreliable, such that their use would violate his right to due process.
To determine whether admission of a witness identification from a photographic lineup violates a defendant's due process rights, the court applies a two-prong test. First, the court examines whether the photographic lineup was impermissibly suggestive. United States v. Wiseman, 172 F.3d 1196, 1208 (10th Cir. 1999); United States v. Smith, 156 F.3d 1046, 1050 (10th Cir. 1998); United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir. 1994). Factors relevant to this determination include the size of the array, the manner of its presentation, and the details of the photographs. Smith, 156 F.3d at 1050. Second, if the lineup was impermissibly suggestive, the court must then determine whether the identification was nevertheless reliable considering the totality of the circumstances. Sanchez, 24 F.3d at 1262. A pre-trial identification procedure violates due process only when it "is so unnecessarily suggestive that it is `conducive to irreparable mistaken identification.'" See Kirby v. Illinois, 406 U.S. 682, 691 (1972).
The Supreme Court has enumerated five factors for courts to consider in determining whether a pretrial identification is reliable: the opportunity of the witness to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of his prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. See Neil v. Biggers, 409 U.S. 188, 199-200(1972). These five factors "must be weighed against the corruptive effect of a suggestive pre-trial identification procedure to determine whether the identification testimony should [be] suppressed." Id. The standard is whether there is a very substantial likelihood of misidentification. Id. at 198.
The evidence presented at the hearing showed that on or about January 24, 2002, an individual robbed a Carlos O'Kelly's restaurant in Topeka, Kansas. After Topeka authorities came to suspect defendant Maurice Franklin of the robbery, they asked Detective Harry Smith of the Independence, Kansas Police Department, who had a booking photograph of Franklin, to compile a photographic array of individuals (including the defendant) for presentation to witnesses of the robbery. Detective Smith compiled an array using a computer and computer software that allowed him to request photographs of individuals with similar characteristics. The shared characteristics that Smith could request included race, sex, ethnicity, height, weight, hair, eyes, skin, facial hair, and age. Smith used the computer to generate photographs of individuals similar to defendant Franklin. The computer selected a group of somewhere between 20 and 40 photographs. Smith then went through the photographs manually to select five other individuals who looked similar to the defendant. The array he compiled is contained in Government's Exhibit 2. It contains photographs of six black males, all relatively young, and all having short hair and a mustache. There is no obvious difference in height or weight of the individuals depicted.
The evidence shows that on different occasions in October of 2002, officers presented copies of the photographic array to several eyewitnesses of the robbery, including Ron Rohleder, Ashley Poe, Al Stevens, Mike Neal, and Ryan Gilchrist. Prior to each identification, the witness was given an admonition form to read, which cautioned that they should not assume the person they saw would be included in the photographs. Doug Eby, a Detective with the Topeka Police Department, testified as to how he presented the array to four of the witnesses. On each occasion, Eby first gave the witness the admonition form and had them read it. He then gave the witness the photo array. Three of the witnesses indicated that the defendant's photograph was or could be the person they saw the night of the robbery. One included a comment that the individuals other than the defendant "appear too young." A fourth witness could not make any identification. Eby testified that he did not tell the witnesses whether a suspect was depicted in the array and did not give them any feedback on whether their selection was "right" or "wrong." Additionally, Special Agent Jim Carlson of the Bureau of Alcohol, Tobacco, and Firearms testified as to how he presented the array to a fifth eyewitness. Carlson followed the same general procedure as Smith, first giving the witness an admonition form and then giving him the photo array. This witness selected the defendant's photograph as the individual he saw.
The court finds that the photo identifications in this case were not impermissibly suggestive. The witnesses were presented with photographic arrays of six similar-looking individuals. The arrays contained photographs of six black males with similar characteristics. Cf. Sanchez, 24 F.3d at 1262. The individuals depicted all have similar facial hair and hairstyles. The background of each picture is the same. All of the individuals are dressed in casual street clothes. Notwithstanding the comment of one witness that the individuals other than the defendant appeared "too young," the court concludes that the array fairly presents a group of relatively young individuals and that the defendant's photograph does not "jump out" as depicting an obviously older person. Moreover, there is no credible evidence that the witnesses were pressured or coached into selecting any of the pictures, or that the officers used any suggestive techniques to influence the witnesses. The identifications were conducted separately, so that each witness was not influenced by other witnesses. The arrays were fairly presented and were not suggestive. The court rejects defendant's contention that the lineup was suggestive because it showed him in a sweatshirt with a prominent logo ("TOMMY" [Hilfiger]) on the front. There is no evidence that this logo in any way served to suggest that the defendant was the person involved in the robbery. (The court also notes that one of the other individuals in the array had the word "CITY" in large letters across the front of his shirt). Considering all of the circumstances, the lineups were not suggestive and the identifications were made under circumstances that would tend to make them reliable. Although they were conducted some nine months after the offense, that fact alone would not make them suggestive or unreliable, particularly in view of the non-suggestive manner in which they were presented to the witnesses.
In sum, the court concludes that the photographic lineups were not impermissibly suggestive, and the defendant's motion to suppress the witness identifications is therefore denied.
2. Government's Motion in Limine and for James Hearing.
The Government requests a James hearing relating to certain statements allegedly made by James Griffin (previously charged as a co-defendant but who was later dismissed without prejudice). The Government intends to establish Griffin's statements through the testimony of Dale Henderson, an individual who came forward during the investigation. According to the Government, Henderson would testify that Griffin made certain statements to him, both before and after the Carlos O'Kelly's robbery, which incriminate defendant Franklin. The Government contends that in a conversation between Henderson and Griffin before the robbery, Griffin said he "had some plans for when Maurice gets out of jail," and that Griffin asked Henderson about the back door of the Carlos O'Kelly's restaurant in Topeka. Additionally, the Government contends that after the robbery Henderson had an another conversation with Griffin, and that this time defendant Franklin was present. According to the Government, Henderson would testify that Griffin told him he and Franklin had done the robbery, that Griffin had driven his car, and that Griffin remained in the car while Franklin entered the restaurant. Henderson would allegedly testify that Griffin asked him if he knew anybody who wanted to buy or sell a gun, at which point Franklin pulled a gun out from under a dresser. Henderson allegedly would testify that the gun appeared to be a 9 mm or a .45 caliber. (The Government says that a shell casing from the robbery scene indicates that a 9 mm gun was used). The Government contends that Henderson would testify that Griffin said this was the only gun they had and that they needed to buy another gun because they had messed up and Franklin had shot someone during the robbery.
The Government argues that evidence of Griffin's statements is not barred by the rule against hearsay for two reasons. First, it contends the statements fall under the exception for statements by a co-conspirator during and in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E). Second, it argues the statements fall under the exception for statements as to which the defendant has manifested an adoption of the truth of the statement, in that defendant Franklin manifested a belief in Griffin's statements by remaining silent when Griffin told about how he and Franklin had committed the robbery. See Fed.R.Evid. 801(d)(2)(B).
The court granted the Government's request for a James hearing and heard testimony from Detective Eby, who recounted some of the statements previously given by Henderson relating to this case. The Government indicated that Henderson would testify to the same effect if called at trial.
The standards governing hearsay are fairly well-established. Co-conspirator statements may properly be admitted if the court finds that (1) a conspiracy existed; (2) both the declarant and the defendant against whom the declaration is offered were members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy. United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999). The party offering the evidence must prove these facts by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 176 (1987). Such evidence may include the statements themselves, but the statements alone are not sufficient to establish that a conspiracy existed and that the declarant and the defendants were members of it. Fed.R.Evid. 801(d)(2)(E). As for "adoptive admissions," under Rule 801(d)(2)(B), "[a] statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement of which the party has manifested an adoption or belief in its truth." "A party may manifest adoption of a statement in any number of ways, including [through] words, conduct, or silence." United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001). When a statement is offered as an "adoptive admission", the primary inquiry is whether the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond, and whether there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement. Id. at 383.
Defendant Franklin is charged in part in Count 3 with obstructing interstate commerce "by robbery, or conspiracy to commit such robbery, . . ."
Based on the evidence presented, the court finds that the Government has shown that James Griffin's statements to Henderson about getting rid of the gun from the Carlos O'Kelly's robbery qualify as admissible statements by a co-conspirator. The Government has presented evidence to establish that a conspiracy likely existed between James Griffin and the defendant Maurice Franklin to rob the Carlos O'Kelly's. Thus, the first element for admission of the statements is met, regardless of the fact that such a conspiracy was not expressly charged in the Indictment. See United States v. Lemon, 497 F.2d 854 (10th Cir. 1974). Second, the evidence establishes more likely than not that the defendant and James Griffin were members of the conspiracy. And third, the court finds that Griffin's explanation to Henderson about what happened during the robbery, and consequently why they needed to get rid of the gun, qualify as statements made "in the course of and in furtherance of" the conspiracy. The courts have said that statements which are part of an effort to avoid detection are generally statements "in furtherance of" the conspiracy. Cf. United States v. Brookins, 52 F.3d 615 (7th Cir. 1995) (after a camera had been stolen, statements made by an alleged co-conspirator were "in the course of and in furtherance of the conspiracy" because they were part of an attempt to avoid detection of the conspiracy to steal the camera). The court finds that Griffin's explanation about why they needed to get rid of the gun was likely part of an effort to further the conspiracy by avoiding detection of the offense. As such, these statements by Griffin are admissible under the co-conspirator exception in Rule 801(d)(2)(D). In light of this ruling, the court need not address the Government's contention that defendant Franklin, by his silence, adopted Griffin's statements about the robbery.
The court notes the Government has not shown that Griffin's alleged statement prior to the robbery that he "had some plans for when Maurice gets out of jail" qualifies as a statement of a co-conspirator. There is no evidence that a conspiracy existed at the time Griffin allegedly made this statement.
3. Letter from defense counsel concerning possible dismissal of counts.
The court has received a letter from defense counsel stating that the Government has informed him it intends to dismiss some of the counts but it will not disclose until the morning of trial which counts it intends to dismiss. Defense counsel asks the court to direct the Government to disclose which counts, if any, it intends to dismiss.
Counsel for the Government confirmed at the August 25th hearing that he did not intend to proceed to trial on all of the counts in the Indictment. He said he believed counsel could reach a reasonable accommodation concerning notice to the defendant of which counts would be dismissed.
4. Government's Motion to Strike Defendant's Notice of Alibi (Doc. 106).
The Government complains that the defendant's Notice of Alibi does not provide the telephone number or the address of the proposed alibi witnesses as required by Rule 12.1. Additionally, the Notice identifies one witness only as "Kathy" and another one as a "babysitter." The Government argues that the Notice is deficient and should be stricken, and that the defendant should not be allowed to call these witnesses.
The court agrees that the Notice is deficient and directs the defendant to promptly file an amended Notice containing the information required by Rule 12.1. If the defendant fails to do so, he will not be permitted to call these alibi witnesses.
Conclusion.
Defendant's Motion to Suppress Identification (Doc. 90) is DENIED; the Government's Motion in Limine and for a James Hearing (Doc. 99) is GRANTED IN PART; and the Government's Motion to Strike Defendant's Notice of Alibi (Doc. 106) IS GRANTED IN PART.
IT IS SO ORDERED.