Opinion
No. CR03-576603-T
January 4, 2006
MEMORANDUM OF DECISION ON MOTION TO SUPPRESS IDENTIFICATIONS
On February 8, 2005, the defendant moved this Court, under Section 41-13 of the Connecticut Practice Book, the Fourteenth Amendment to the United States Constitution and Article I, Section 8 of the Constitution of Connecticut, to suppress as evidence all pretrial and in-court identifications of him as a perpetrator of the crimes charged against him in this case. As grounds for this Motion, the defendant has alleged, more particularly, that: (1) the procedure by which each challenged pretrial identification was obtained was unnecessarily suggestive; (2) that any in-court identification by a witness who previously identified him in an unnecessarily suggestive pretrial identification procedure would be irreparably tainted by the prior illegal identification, and thus would have no independent basis; and (3) that each challenged identification, obtained as aforesaid, must be suppressed for failure to meet minimum constitutional standards of reliability for procedurally tainted identification evidence, as announced by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and enforced under the Due Process Clauses of our State and federal Constitutions.
At the hearing on this Motion, the Court heard testimony from three witnesses: Mark Clement and Christopher Valle, two eyewitnesses to the incident underlying the charged offenses who made pretrial photo identifications of the defendant as one of the perpetrators of those offenses; and Detective Patricia Beaudin of the Hartford (CT) Police Department, the lead investigator in this case who supervised the conduct of the pretrial identification procedures by which Messrs. Clement and Valle made their challenged pretrial identifications of the defendant. Based upon the testimony of these witnesses, the full exhibits introduced at the hearing, and certain scientific research studies concerning sources of error in pretrial identification procedures, the Court hereby makes the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
On the evening of December 19, 2003, 20-year-old Mark Clement drove his friend, 23-year-old Christopher Valle, to the apartment of their mutual friend, Miguel "Tito" Delgado, at 134 Babcock Street in Hartford, Connecticut. Their purpose for so doing on that Friday evening was to hang out, drink and play video games with Mr. Delgado and other visitors to his apartment, as they had done almost every weekend evening over the preceding four or five months. Mr. Delgado's apartment was on the third floor of the building at 134 Babcock Street, where it was accessed by visitors through a front door that opened into it from the lighted common hallway at the top of the inside staircase.
Upon entering the apartment from the common hallway on the evening of December 19, 2003, a visitor would step directly into a short, unlighted inside hallway that led directly into the living room. The darkened living room, in which no lights were on, had a couch along the far wall, generally facing the front door, and a loveseat to the left of and perpendicular to the couch along the left-hand wall. In the far right corner of the living room, to the immediate right of the couch from the perspective of one entering it through the front door and inside hallway, was the open entrance to the apartment's lighted kitchen, where the closed door to Mr. Delgado's bedroom and the apartment's private rear door were located. Along the right-hand wall of the living room, to the entering visitor's immediate right as he entered the living room from the entrance hallway, was the open entrance to the apartment's lighted game room, which was partially covered by a hanging sheet that had been drawn to one side.
After arriving at Mr. Delgado's apartment on the evening in question, Messrs. Clement and Valle spent most of their time inside the game room, drinking alcoholic beverages and playing video games with Mr. Delgado and a younger man named Mojo, whom they knew from prior visits to the apartment. Although several other persons made brief visits to the apartment on that evening, the only other person who was present in the apartment throughout the evening was Mr. Delgado's girlfriend, Jeanette, who remained in the bedroom at all times.
During the evening, Mr. Clement recalls drinking only beer — particularly, one 22-ounce container of Heineken. Mr. Valle, however, recalls that he and the other men, including Mr. Clement, spent the evening drinking mixed drinks called Incredible Hulks, which were made by mixing Hypnotic, a sweet liqueur, with Hennessy cognac. Mr. Valle testified that he and his companions shared the contents of a small bottle of Hypnotic and a half-pint bottle of Hennessy.
Close to midnight on the evening in question, as Mr. Valle was preparing to go home, he left the game room to say goodnight to Mr. Delgado and found him standing just inside his front door, trying to get rid of two young men who then stood facing him in the common hallway. As Mr. Valle neared the front door, he recalls that the taller, slimmer of the two men — a Hispanic male in his early twenties, who wore braids in his hair and all black clothing and reminded Mr. Valle generally of one of his own friends — pointed a gun directly at him and entered the apartment, forcing him and Mr. Delgado backwards into the living room, where they were made to sit on the couch. Mr. Valle recalls that as the gunman and his shorter, stockier companion — a young Hispanic male dressed in black who wore his hair in a bun — entered the apartment, they also forced Mr. Clement and Mojo to go to the living room and sit on the couch, then ordered all of them to surrender their money and their jewelry. According to Mr. Valle, he complied with that order by handing over his watch and his money, Mr. Clement complied with it by handing over his watch and perhaps a cell phone, and Mojo complied with it by handing over a gold necklace he had been wearing around his neck.
Mr. Delgado, however, produced no money or jewelry. Instead, all he offered to the gunman and his companion was some marijuana, which he said was all he had. The robbers were dissatisfied with this offer, however, and made it clear they wanted more. To that end, the gunman told Mr. Delgado that he wanted to inspect the back bedroom, where Mr. Delgado's girlfriend remained hiding. At this suggestion, Mr. Delgado, who was then standing to the side of the couch, rushed the gunman, grabbed his arm, and began to struggle with him. During the struggle, in which Mr. Delgado and the gunman moved away from the couch towards the front of the apartment, a shot rang out, prompting Mr. Valle to jump to his feet. Shortly thereafter, as Mr. Valle began to head towards the game room door, a second shot rang out and Mr. Valle saw Mr. Delgado fall to his knees on the floor. When that happened, Mr. Valle ran into the game room, with Mr. Clement close behind him.
Mr. Valle recalls that he did not emerge from the game room until one more shot was fired and the two robbers ran out the front door of the apartment. When he did so, he at first could see nothing, so he felt around on the floor for Mr. Delgado. Upon finding him lying in a pool of blood on the floor of the unlighted front hallway, he pulled him to the middle of the living room floor, turned him over, then turned on the living room light.
Mr. Clement, who recalls being in the game room when the robbers first knocked on the door of the apartment, recalls them coming into the game room and telling those present to come with them because "it was a stickup." Suppression Hearing Transcript ("H/T"), p. 9. Complying with that order, he and the other men went with the robbers to the living room where, as Mr. Valle also remembers, they were made to sit on the couch. Mr. Clement recalls that the taller of the two robbers, whom he did not know or recognize, was "about six feet, maybe six two. He was wearing all black, black jacket, I remember, black gun, black boots, corn rows, and I believe a black bandana . . . not covering his face, but just on his head." Id., p. 10. He further described the gunman as an Hispanic male, about twenty or twenty-one years old, with a build that was "not skinny, not fat, just medium." Id. He described the second robber as a shorter Hispanic male, about five feet, nine inches tall, who was dressed in black pants, black shoes and a jacket, wore his hair in a mini-Afro, and was "a little chunkier [than the gunman], a little heavy, like short and stocky." Id., p. 10.
Once Mr. Clement, Mr. Valle, and Mojo were all seated on the living room couch, Mr. Clement recalls that he and Mr. Valle complied with the robbers' instructions by taking off their shoes and surrendering his valuables. He recalls, in particular, taking out his wallet, which had no money in it, showing it to the robbers, who were only one or two feet away from him, and then having "the guy with the gun" take his watch and a watch and some jewelry from Mr. Valle. Id., p. 13. He claims, however, that nothing was taken from Mojo, because he had nothing of value on him.
As for Mr. Delgado, Mr. Clement recalls that he had only about twenty dollars on him but the robbers wanted more. After Mr. Delgado repeatedly denied the gunman's suggestion that there must be more money somewhere in the apartment, he recalls seeing the gunman take a step towards Mr. Delgado's bedroom, then Mr. Delgado grabbing the gunman's arm and pushing him backwards towards the front door until the other robber stepped in. Shortly after Mr. Delgado and the gunman began to struggle, he recalls looking quickly at Mr. Valle, then hearing a shot ring out and seeing Mr. Valle rise and hurry towards the game room. Not knowing what else to do, Mr. Clement also rose and quickly followed Mr. Valle into the game room, where they remained, hearing other gunshots, until there was complete silence in the apartment. When he finally stepped out of the game room, after Mr. Valle had done so, he recalls seeing Mr. Valle pulling Mr. Delgado across the living room floor.
As the above-described events transpired in Mr. Delgado's apartment on the evening of December 19, 2003, Mr. Valle had two different opportunities to observe the faces of the men who robbed him. When he saw them initially, standing in the common hallway outside of Mr. Delgado's apartment as Mr. Delgado was trying to get rid of them, the lighting was excellent or, as Mr. Valle described it, "bright as hell." Id., p. 83. When he saw them thereafter, after the taller man had produced his gun and forced him and his companions to go with them to the living room, sit on the couch and surrender their valuables, the lighting, which came principally from the kitchen, which was then behind him and to his left, was adequate for him to see the two robbers clearly, for they were standing directly in front of the couch and looking generally in his direction. On the basis of these observations of the robbers, Mr. Valle told the police that he would be able to identify them if he ever saw them again or viewed their photographs.
Mr. Clement also had two opportunities to view the robbers in the course of the robbery. His initial opportunity occurred when the robbers entered the game room and announced that "it was a stickup." Id., p. 9. The lighting during this brief but attention-grabbing encounter was excellent. His second opportunity to view them occurred when he and his companions were forced to sit on the couch in the living room and to surrender their valuables. Though the living room light remained off throughout this second, longer confrontation, which lasted several minutes from the time it began until Mr. Delgado was shot and he and Mr. Valle left the room, Mr. Clement credibly recalls that the lighting in the room was good enough to see the robbers clearly when he looked up at their nearby faces, which he did "every now and then." Id., p. 14. Hence, when pressed on this issue on cross-examination at the suppression hearing, although he agreed that the living room was not as bright as the courtroom, he said, "It wasn't pitch black either, there was some light." Id., p. 40, On the basis of those observations, Mr. Clement told police investigators who interviewed him after the robbery that he would "probably" be able to identify "the guy with the gun" if he ever saw him again. Id., p. 22.
On December 23, 2003, while making his regular Tuesday visit to the office of his parole officer, Mr. Valle was "shocked" to see the defendant, whom he immediately recognized as the gunman who had robbed him four days earlier, enter that same office and sign in after asking to see his parole officer and being told he was not there. Id., pp. 66-67. Upon making that observation, Mr. Valle promptly informed drug testing personnel then on duty in the parole office of what he had just seen.
Later that same day, Mr. Valle was contacted by Detective Patricia Beaudin of the Hartford Police Department, who asked him to look at some photographs. Detective Beaudin, who was then accompanied by her partner, Detective Ezequiel Laureano, produced a photo board on which eight full-face photos of young Hispanic males, all apparently in their twenties and most wearing braids or corn rows in their hair, were displayed in two rows of four, with one row above the other. Detective Beaudin recalls that before Mr. Valle looked at the photo board, she instructed him simply to "view the pictures . . . in [it,] . . . if he sees someone that he recognizes to let me know, if he doesn't, that's fine also." Id., p. 98. According to her testimony, neither she nor Detective Laureano told Mr. Valle that he had to select a photo from the array, much indicated to him which photo he should pick. Id., pp. 98-99. Consistent with these instructions, the following notice was prominently printed at the bottom of the array:
NOTICE: You have been asked to look at this group of photographs. The fact that they are shown to you should not influence your judgment. You should not conclude or guess that the photographs contain the person who committed the offense under investigation. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss this case with other witnesses nor indicate in any way that you have, or have not identified someone.
Photo Array 1 (Exhibit #1).
Upon viewing the photo board, Mr. Valle immediately selected photo #6, the parole photograph of the defendant, who he was "sure" was the "person with the gun" who had robbed him. Id., p. 68. Mr. Valle denied in his testimony at the hearing that either Detective ever told him that he had to select a photo from the array or in any way indicated which of the eight photos to select. The only reason he gave in his testimony for selecting the defendant's photo was simply stated as follows: "Just cuz I knew it was him." Id., p. 69. To memorialize his selection, Mr. Valle wrote the date and his initials next to photo #6, then circled it. Id.
The defense has correctly noted that the only photo in the array which has a light-colored height scale positioned behind the head of the person in it is that of the defendant. The defense also claims that the defendant's photo is distinguishable from all but one of the other photos in the array because of its relative brightness, which assertedly draws a viewer's eye directly to it. Although Mr. Valle acknowledged these distinctions between the defendant's photo and the others in the array, he credibly denied that any such difference played any role in his selection of the defendant's photo as that of the gunman who had robbed him.
On December 27, 2003, just over one week after the robbery and shooting and four days after Mr. Valle first sighted the defendant at the office of his parole officer and selected his photo from the above-described array, Detective Beaudin contacted Mr. Clement and made a similar request that he view a "photo lineup." Id., p. 23. As Mr. Clement recalled the procedure in his testimony at the suppression hearing, Detective Beaudin simply asked him to examine the photos — the same eight photos of young Hispanic men with braids and/or corn rows that had been shown to Mr. Valle, albeit arranged in a different order on a separate four-by-two photo board — to see "if there's anybody that looks familiar in it." Id. This photo board also contained, and Detective Beaudin either pointed out or read to Mr. Clement, the same prominently printed notice that had appeared at the bottom of the photo board displayed to Mr. Valle.
Upon looking at the photo board, which he believed to contain photographs of known robbers but did not know to contain the photo of either person who robbed him, Mr. Clement found his eyes going "straight to one photo" — that of the defendant, which was marked #3 — but at first he said nothing. Id., pp. 23, 44. In the following colloquy with the State's Attorney at the hearing on this Motion, Mr. Clement credibly described the viewing process, as he experienced it, as follows:
Q. Okay. And in looking through the photographs, did anyone in the photographs who was depicted there look familiar to you?
A. My eyes went straight to one photo.
Q. Okay.
A. Automatically. I didn't want to say nothing too fast because I was a little nervous and you know I didn't even know if the guy was in there or not so I didn't want to like screw things up.
Q. Okay.
A. But automatically my eyes went to one photo.
Q. Okay. And what did you observe about the particular photo?
A. The eyes. I remember the eyes. And I remember the hair and it was real similar to my knowledge of who the guy was.
Q. Okay. When you say you recognize the eyes, you recognize those eyes as similar or belonging to whom?
A. To the guy with the gun.
Q. Okay. So the photograph that you saw, you recognized as the person who entered and had the gun?
A. Yes.
Q. Okay. And what did you do upon recognizing that individual?
A. She asked me if I see him in here and I was like I think I do. And I pointed straight to him and then I also said well there's another guy here, like I said, I didn't want to make a quick decision like that so I took a second to look at the second guy.
Q. Okay.
A. And I said I'm almost definite it's probably that guy.
Q. Okay.
A. And then she was like, okay. And she circled it and then she went on to the — and oh, she told me that's the same picture that Chris [Valle] also picked.
Q. Okay. Initially you looked at the photo, you were drawn to one particular photo in the array?
A. Right.
Q. At the same time you saw another photo, which what, caught your attention or what?
A. It just made me stall a bit because I wanted to make sure I made the right decision.
Q. Okay. So you looked through all of those photographs and then came to the mind that the photo that you had initially picked or the other photo that you saw?
A. Yeah.
Q. The initial photo or the second photo?
A. The — could you repeat the question?
Q. Yes. You said your attention was caught by one photo?
A. Yes.
Q. You felt somewhat sure about that, but you wanted to make sure so [you] didn't screw things up?
A. I wanted to take another good look at the other photo also.
Q. Okay.
A. And then I made the decision to go.
Q. Which of these?
A. The first photo that caught my attention.
Q. Okay. And so you said you're almost positive that's the one?
A. Yes.
Id., pp. 23-26.
In subsequent testimony at the suppression hearing, Mr. Clement agreed with Detective Beaudin that neither she nor Detective Laureano, who was with her when he viewed the photo board and identified the defendant's photo, ever told him that he had to identify someone in the array or indicated any particular photo to him as one he should specially consider or select. Hence, he claims that the sole basis for his identification of the defendant as the gunman was his own "gut feeling," based upon his personal observations of the gunman during the robbery. Id., pp. 26, 29. On that same basis, Mr. Clement made an in-court identification of the defendant in the course of the suppression hearing.
On cross-examination by defense counsel at the hearing, Mr. Clement reiterated that the Detectives told him nothing before he viewed the photo board except to take his time, and that his primary concern in making a selection was that he not make "a bad decision" — that is, that he not "pick the wrong guy." Id., p. 44. Even so, he testified as follows that he then believed a suspect was probably in the array, and thus that he had to "pick somebody.":
Q. Okay. But you figured that they're not going to come all the way from Hartford to Newington to show you some pictures where the suspect isn't there?
A. Oh yeah.
Q. Okay. So you felt you had to pick somebody?
A. Right. Correct.
Id., p. 44. Mr. Clement also confirmed that, although the presence of a second photo originally made him less than one hundred percent sure that the photo of the defendant was that of the gunman who had robbed him, a longer second look at the other photo resolved those doubts before he finally selected the defendant's photo. Only then, he claimed, did Detective Beaudin tell him that he "did good" by identifying photo #3, since Mr. Valle had previously selected the same photo. Id., p. 45.
II. THE CONTROLLING LEGAL STANDARD
To prevail on a motion to suppress identifications under the Due Process Clause of the Fourteenth Amendment to the United States Constitution or its Connecticut constitutional counterpart, in Article I, Section 8 of the Constitution of Connecticut, the defendant must prove by a fair preponderance of the evidence both that a government-administered pretrial identification procedure was unnecessarily suggestive and, if it was, that any subsequent identification to which it led or may lead in the future was or will be unreliable in the totality of the circumstances. "An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification." State v. Thompson, 81 Conn. 264, 269, 839 A.2d 622 (2004), quoting State v. Colon, 70 Conn.App. 707, 720-21, 799 A.2d 317 (2002). "The reliability of an identification procedure is considered under various factors, such as 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 at the confrontation; and the time between the crime and the confrontation." State v. Davis, 61 Conn.App. 621, 631, 767 A.2d 137 (2001), citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). "Reliability is the linchpin in determining the admissibility of the identification testimony." State v. Jackson, 73 Conn.App. 338, 382, 808 A.2d 388 (2002).
III. THE PARTIES' POSITIONS A. The Defendant's Claims 1. Alleged Unnecessary Suggestiveness of Police Identification Procedures
The defendant claims that both of the pretrial photo identifications which he challenges on this Motion are the products of unnecessarily suggestive police identification procedures. Such procedures, he argues, were unnecessarily suggestive and conducive to the making of irreparable misidentifications of him in three ways.
First, he asserts that the Detectives' method of displaying the photos to each witness — simultaneously, on a single photo board, rather than sequentially, one at a time — unnecessarily enhanced the probability that the witness would "select" a particular photo not by positively identifying the person shown in it, but by the notoriously unreliable process of exercising "relative judgment" between that photo and all others shown to him. A witness makes an identification by the exercise of relative judgment when he eliminates all photos from an array but the one "selected" because the persons in the other photos are less similar to, or more dissimilar than, the true culprit than the person in the remaining photo, who thus is "identified" by default. The problem with this method of identification, as generally accepted scientific research studies have clearly established and our Supreme Court recently recognized in State v. Ledbetter, 275 Conn. 534, 571-72, 881 A.2d 290 (2005), is that it leaves no room for the witness to conclude that the true culprit's photo is not in the array. Because use of this method has been shown to produce frequent misidentifications of innocent persons, especially when the culprit's photo does not appear in the array, the Ledbetter Court ruled, inter alia, that trial courts analyzing Due Process challenges to identification testimony must consider its known negative effects upon the reliability of resulting identifications whenever a challenged identification procedure is shown to have been so conducted as to promote, or not to have prevented or discouraged, its use by the identifying witness. Id., at 575 (citing, as examples of police procedures that either promote or fail to prevent or discourage the use of relative judgment by the identifying witness, informing the witness that the true culprit's or suspect's photo is in the array or failing to advise the witness that the culprit's or suspect's photo may or may not be in the array).
On this score, the Ledbetter Court made the following relevant observations:
"There is good empirical evidence to indicate that eyewitnesses tend to identify the person from the lineup who, in the opinion of the eyewitness, looks most like the culprit relative to the other members of the lineup . . ." G. Wells, M. Small S. Penrod et al., ["Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads,"] 22 Law Hum. Behav. 613. The researchers refer to this phenomenon as the "relative judgment process." Id. "Relative judgments can be contrasted with absolute judgments in which the eyewitness compares each lineup member to his or her memory of the culprit and uses some type of criterion threshold to decide whether or not the person is the actual culprit . . . There are numerous empirical observations that lead to the conclusion that the relative judgment process exerts a significant influence in eyewitness identifications. These include the behavior of witnesses under the removal-without-replacement procedure, the effects of warnings that the actual culprit might not be in the lineup, the effects of manipulations to relative similarity, patterns of eyewitness responses using the dual lineup procedure, and the performance of eyewitnesses using the sequential presentation procedure." Id., 614. "The problem with the relative judgment process . . . is that it includes no mechanism for deciding that the culprit is none of the people in the lineup." Id.
The defendant contends that the simultaneous display of all photos in an array to a witness is conducive to the making of an irreparable misidentification because it enables the witness to compare each photo to all other candidate photos when making his selection, thus permitting him to select one photo by the unreliable process of exercising of relative judgment. This danger, he asserts, can easily be reduced, if not completely eliminated, by showing the photos sequentially, one after another, which requires the witness to consider each photo individually, solely on its own merits, before moving on to and separately considering any additional photos. In support of this claim, the defendant relies upon the results of several scientific research studies, including one frequently cited and centrally relied upon by our Supreme Court in Ledbetter, where the authors accurately described the universal judgment of the relevant scientific community on this issue as follows: "The evidence in support of the sequential procedure for preventing relative judgments is rather impressive." G. Wells, M. Small S. Penrod et al., "Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads," 22 Law Hum. Behav. 603, 614 (1998). Accord, G. Wells E. Olson "Eyewitness Testimony," 54 Annu. Rev. Psychol. 277, 288 (2003); J. Tuttle, R. Lindsay, G. Wells, "Best Practice Recommendations for Eyewitness Evidence Procedures: New Ideas for the Oldest Way to Solve a Case," Canadian Journal of Police and Security Services (2003); U.S. Department of Justice, Eyewitness Evidence — A Guide for Law Enforcement (1999).
The defendant next claims that the challenged photo identification procedure was unnecessarily suggestive because his own photo, as displayed to each witness, was so distinct and different from all others in the array as to direct the witness's attention to it, and thus, allegedly, to suggest that the Detectives wished him to select it, or at least to seriously consider selecting it, when viewing the array. On this score, the defendant complains, in particular — as Mr. Valle agreed in his testimony at the hearing — that a large white height scale appears only in his photo and that his photo is substantially brighter than most of the other photos in the array.
Finally, the defendant claims that the procedure by which each challenged identification was obtained was unnecessarily fraught with the potential that he personally would be misidentified in it because the person assigned to administer it was Detective Beaudin, the lead investigator in the case. Detective Beaudin, he claims, was well aware of all information gathered in the investigation up to the very moment when each challenged identification was obtained. Importantly, she was aware of all investigative information that tended to implicate him as the gunman, and thus she was admittedly interested in bringing the investigation to a successful conclusion by developing further information that tended to incriminate him. The risk of producing a misidentification in such circumstances, due to conscious or unconscious bias by the highly interested person administering the identification procedure, is so well established in the relevant scientific literature that experts have strongly recommended that all pretrial identification procedures be conducted only by persons who do not know which member of the lineup or photospread is the suspect. See, G. Wells, M. Small S. Penrod et al., supra, 22 Law Hum. Behav. at 614 (1998).
Here, claims the defendant, Detective Beaudin's strong interest in having the witnesses identify him as the gunman was made manifest just after Mr. Clement selected his photo, when she exclaimed, in words he remembered two years later, that he had "did good" because "that was the same photo" that his friend, Mr. Valle, had selected. It can reasonably be inferred from Detective Beaudin's reaction to Mr. Clement's selection, claims the defendant, that she showed her bias against him in other, more subtle ways during both challenged identification procedures, and thus that she may have influenced the witnesses to pick his photograph as that of the gunman.
2. Alleged Unreliability of Resulting Identifications in the Totality of the Circumstances
Having allegedly been produced by such unnecessarily suggestive police identification procedures, the defendant claims that each challenged identification, and all subsequent identifications of him by the same witnesses, were or will be so irreparably tainted as to be unreliable in the totality of the circumstances, and thus that they must be suppressed. As to Mr. Valle, the defendant claims initially that his opportunity to observe the gunman, whom he had never seen before, was poor, both because he had been drinking alcohol before the robbery and because, once the robbery began, he and the other victims were ushered immediately into Mr. Delgado's unlighted living room, where he could see nothing until his eyes adjusted to the dark. Mr. Valle's degree of attention, he further argues, was also limited, for his attention during the robbery was assertedly on the gunman's gun, and once a struggle began between Mr. Delgado and the gunman and shots were fired, he quickly left the room. As for Mr. Valle's description of the gunman, the defendant notes the lack of any detail about the gunman's facial features, including, for example, his eyes, eye color, hair color, scars, tattoos or other peculiar markings. Finally, the defendant notes that the identification procedure was conducted over three days after the robbery, not immediately after it was over, when Mr. Valle's memory, however limited, would have been at its freshest. In light of these circumstances, claims the defendant, Mr. Valle's photo identification of him was so unreliable that it and all later government-sponsored identifications of him by Mr. Valle must be suppressed.
As for Mr. Clement's challenged photo identification of him, the defendant claims that his opportunity to observe the gunman, whom he too had never seen before, was also poor. Mr. Clement had also been drinking before the robbery began. In fact, he was admittedly under the influence of alcohol. Once the robbery began, moreover, he, like Mr. Valle, was immediately forced at gunpoint into Mr. Delgado's unlighted living room, where he stayed until shots were fired and he quickly followed Mr. Valle out of the room. Mr. Clement's degree of attention during the robbery, claims the defendant, was very limited, for he did not look up often while he sat on the couch during the robbery. When he did so, moreover, he too was assertedly distracted by the gunman's gun. Accordingly, Mr. Clement's description of the gunman, like Mr. Valle's, assertedly lacked many details about the gunman's facial features. In his post-arrest statement to police, moreover, he described the gunman as slim, not broad-shouldered like the defendant now appears and appeared in his photo, and he mentioned nothing at all about the gunman wearing braids or corn rows in his hair. The defendant claims finally that Mr. Clement was less than certain when he finally made his identification, and only did so after vacillating between the defendant's photo and another photo in the array. Any confidence he now claims to have in that identification allegedly stems from Detective Beaudin's improper post-selection confirmation that he had selected the same photo as Mr. Valle. The Detective's ill-considered words, he now insists, will surely cause Mr. Clement to base any future in-court identifications of him upon the viewing of his photo rather than upon the witness's personal recollection, if any, of the gunman's face.
B. The State's Responses
The State disagrees entirely with the defendant's foregoing analysis, contending that neither challenged identification was the product of unnecessarily suggestive police identification procedures, and that even if it was, it is nonetheless reliable when considered in the totality of the circumstances in which it was obtained.
1. Alleged Unnecessary Suggestiveness of Police Identification Procedures
As for the defendant's claim that the identification procedures used to identify him were unnecessarily suggestive, the State responds to the defendant's three basic arguments as follows. In response to the defendant's initial argument that the simultaneous display of all photos to the witnesses unnecessarily enabled them to select his photo by the exercise of relative judgment, which could not have occurred had all photos been shown to them sequentially, the State does not dispute the findings of scientific researchers that sequential identification procedures are more reliable than simultaneous identification procedures because they virtually eliminate the use of relative judgment in the making of photo identifications. Instead, it relies principally upon the Detectives' use of other procedures which, though not absolutely preventing the witnesses from identifying him by the unreliable exercise of relative judgment, are well known to diminish its use in the identification process, to wit: warning the witnesses in writing that they "should not conclude or guess that the photographs shown to them contain the person who committed the offense under investigation," and advising them that they were "not obligated to identify anyone . . . because it is just as important to free innocent persons from suspicion as to identify guilty parties." State's Exhibits 2, 4. This admonition, which appeared on the photo board itself, is virtually identical to that approved by our Supreme Court in Ledbetter due to its well known effectiveness in discouraging witnesses from believing that the suspect is in the array, and thus that they must identify someone even if they cannot make a positive identification.
In response to the defendant's second argument — that his own photo was unfairly highlighted in the array shown to each witness — the State argues that all of the photos, including the defendant's, depict young Hispanic males in their twenties, most with braids or corn rows in his hair, and none has any unusual physical features that mark him either as a probable suspect, because of his unique similarity to the perpetrator, as the witnesses described him or as an obvious non-suspect, because of his telling dissimilarity from the perpetrator. In short, it argues that the array presents a very fair sample of photographs of persons who share the perpetrator's known facial features.
As for the white height scale behind the defendant in his photograph, it is concededly not present in any other photo in the array. What is important to note about the array, however, is that every other photo in it but one contains a visible height scale of some sort, suggesting only, as is obvious to most people viewing police photos, that what they are viewing are in fact photos of persons who, on at least one prior occasion, were probably arrested by the police. Importantly, the photos contain no names, numbers, dates, addresses or other identifying information which could cause a witness to focus on some of them or eliminate others on any case-related basis. Therefore, the State argues that even if the defendant's photo was somehow unique, the features that made it distinct and different from the others were not such as to suggest his probable commission of the offenses under investigation.
In response to the defendant's third argument — that the procedure used to identify him was unnecessarily suggestive because it was conducted by a person admittedly interested in incriminating him — the State argues that the evidence from every witness is to the contrary, at least as to those procedures which were used by the Detectives before the witnesses made their challenged identifications. Not only did the photo boards set forth a written warning that the witnesses need not identify anyone and that the person who committed the offense may not be in the array, but both Detectives clearly testified, and the two eyewitnesses agreed, that neither Detective ever instructed them to the contrary. Instead, the Detectives assertedly told the witnesses that they need not make any identification, and neither Detective suggested to either witness that, if he did so, he should pick out any particular photo. In sum, the State argues that whatever potential there may have been for the Detectives to disclose a bias to either witness was simply never realized.
The State offers no defense at all for Detective Beaudin's inappropriate approval of Mr. Clement's selection of the defendant's photo immediately after he finally made that selection. Instead, it argues that her words came after the identification in question had been made, and in any event, that they did no more than advise the witness of what any other person in his position would ultimately have realized anyway had this prosecution gone forward, to wit: that other evidence tended to implicate the defendant in the commission of the crimes alleged against him.
By way of conclusion, the State urges this Court to find that the defendant has failed to prove his claim of unnecessary suggestiveness as to either challenged identification, or any later in-court identification, by a fair preponderance of the evidence.
2. Alleged Unreliability of Resulting Identifications in the Totality of the Circumstances
As for the defendant's claim that the challenged identifications, having been produced by such unnecessarily suggestive police identification procedures, were so irreparably tainted by those procedures as to make them, and all subsequent identifications of him by the same witnesses unreliable in the totality of the circumstances, and thus subject to suppression, the State responds as follows. First, although neither Mr. Clement nor Mr. Valle ever saw the gunman before the evening of the robbery, each told police officers who interviewed him immediately after the robbery that he thought he could identify the gunman if he ever saw him again. This confidence was based, for each witness, not only on what he observed of the gunman's uncovered face in the course of the robbery, when he sat for several minutes on the couch in the back of Mr. Delgado's unlighted living room, removing and handing over his valuables to the robbers as they stood only one or two feet away, but upon his earlier opportunity to see that face in a fully lighted area just before or just after the robbery began. Mr. Valle's observations of the robbers' faces in a well lighted area occurred when he stood outside the game room door, waiting to say goodnight to Mr. Delgado, and observed them as they stood in the brightly lighted common hallway outside Mr. Delgado's front door while Mr. Delgado attempted unsuccessfully to get rid of them just before they produced a gun, announced a stickup and entered the apartment. Mr. Clement's observations of their faces in a well lighted area occurred when the robbers, upon entering the apartment came into the game room, announced a stickup and forced everyone present to go to the living room. Once the witnesses' eyes adjusted to the light in the living room, which shone upon their faces from the nearby kitchen door, each of them testified that he was able to see.
Based upon their observations in that lighting, which they had ample opportunity to make in the course of the incident, and their briefer observations in brighter lighting beforehand, each witness gave a detailed description of the gunman and the other robber. Although their descriptions concededly did not mention certain features such as eye color, hair color, or distinguishing facial marks or tattoos, they contained descriptions of the robbers' clothing and its color, the fact they were Hispanics in their early twenties, and descriptions of their hairstyles. In particular, both witnesses told police investigators that the gunman was wearing his hair in braids and/or corn rows, even though that detail did not appear in Mr. Clement's later sworn statement.
With respect to Mr. Valle, of course, he had earlier in the day made a completely spontaneous identification of the defendant when he was at the parole office. The making of this identification, which he reported immediately and with complete confidence, strongly underscored his independent ability to identify the gunman without prompting, based solely upon his own memory of the perpetrator's face. Not surprisingly, then, when he later selected the defendant's photo from the array, he made his identification immediately, without any hesitation whatsoever.
With respect to Mr. Clement, he, of course, had no comparable opportunity to observe the defendant in another setting before he examined the array here challenged. He, moreover, recalls experiencing at least some hesitation before he finally settled upon the defendant's photo as that of the gunman. With respect to that hesitation, however, the State suggests that the only reason he felt it was his real and honest concern, which is certainly reasonable in the circumstances, that he not select the wrong person. Mr. Clement did not know, according to his testimony, if the person who committed the robbery was in the array. Hence, although he believed that the police would not have invited him to view photos if they didn't at least have a suspect in mind, and he believed that the photos shown to him were those of known robbers, he was not at all sure that the true perpetrator would be in the array, and so he commendably took his time in order not to implicate an innocent man. His selection of the defendant, claims the State, was not made by the unreliable exercise of relative judgment, but by the reliable process of positive selection based only upon his personal memory of the gunman's face, particularly his eyes.
As for future in-court identifications by Mr. Clement, claims the State, even if he was exposed to inappropriate comments by Detective Beaudin after he made his identification, Mr. Clement can be counted on to make the same careful selection, solely on the basis of his personal memory, as he assertedly did when he made the challenged photo identification.
IV. THE COURT'S ANALYSIS A. Alleged Unnecessary Suggestiveness of Police Identification Procedures
The Court agrees with the defendant that certain aspects of the procedures by which the challenged photo identifications were obtained were unnecessarily suggestive and otherwise conducive to the making of irreparable misidentifications of him. It finds initially, based upon the unchallenged findings of the scientific research studies presented to it, that the simultaneous showing of all photos to each witness on a single photo board created an unnecessary risk of producing irreparable misidentifications by enabling the witnesses to make side-by-side comparisons of the photos, and thus to select one of them simply by eliminating all the others in an unreliable exercise of relative judgment. The creation of such a risk was completely unnecessary, moreover, for the very same photos could have been shown to the witnesses sequentially, one photo at a time, making it almost impossible to compare them, or thus to make a selection by the process of elimination. Preparing the photos for sequential viewing by the witnesses could easily have been accomplished simply by putting them in a single, ordered stack. Such preparation would thus have been no more costly, difficult or time-consuming for the Detectives than having them mounted on a single, well-organized photo board, as they did in this case.
Police departments all over this State have long used photo boards to make simultaneous presentations of multiple photos to witnesses for the purpose of identifying or excluding possible suspects in criminal investigations. However, as the Ledbetter Court made clear, traditional approaches to the conduct of criminal investigation should be modified whenever it is established, on a sound scientific basis, that they unnecessarily produce unreliable results in ways that can reasonably be avoided. Police personnel conducting photo identifications should henceforth strive to eliminate the danger of misidentification arising from the simultaneous showing of multiple photos by making all such showings sequentially.
The Court is also troubled by the Detectives' decision to permit the lead investigator in this case to administer the procedure by which each challenged photo identification was obtained. The Court's concern is based upon the undisputed judgment and recommendation of well respected scientific researchers that the practice of having persons with special knowledge of a criminal investigation administer identification procedures in the course of it must not be permitted in order to ensure against biasing those procedures and tainting any identifications to which they lead. Their research compels the conclusion that the use of that unreliable practice in this case created an unnecessary risk of injecting bias into the identification process, and thus of producing irreparable misidentifications.
Here, moreover, the risk of unfairness due to administrator bias was not just hypothetical, but real, for on at least one proven occasion Detective Beaudin acted upon her bias in a clear and inexcusably prejudicial manner — specifically, when she reacted to Mr. Clement's identification of the defendant by commending him on choosing the defendant's photo and informing him that Mr. Valle had selected the same person. The State correctly asserts that Detective Beaudin's utterance came after the witness had selected the defendant's photo. Thus, the utterance was not shown to have tainted the witness's identification when it was initially made. What the Detective risked by her conduct, however, was unfairly bolstering the witness's confidence in the strength of his photo identification and the solidity of his basis in memory for it, thus making it harder for the defense to test the true certainty with which he made that identification on cross-examination, and correspondingly more difficult for the jury to assess the true strength and reliability of that identification in the totality of the circumstances.
The Court rejects the State's argument that the comment only served to apprise the witness of something he would eventually have learned, or ultimately have surmised, had the prosecution gone forward. Indeed, it finds that argument baffling for two reasons. First, as the State often argues and jurors are always instructed in criminal trials, a guilty verdict, and thus a criminal prosecution leading to it, can appropriately be based upon the testimony of a single witness, even if his or her testimony is uncorroborated. Thus a witness has no basis for assuming that a prosecution supported by his own eyewitness identification of the accused is supported by any other evidence, much less by an eyewitness identification by another person. Second, it is the routine practice of our courts to order the sequestration of witnesses in criminal cases in order to ensure that each witness testifies solely on the basis of what he personally remembers. Such an order, if requested in a criminal trial, is granted as of right. Due to its importance in ensuring the reliability of testimony, moreover, it is frequently requested and almost always ordered, in the court's discretion, in other pretrial proceedings where evidentiary hearings are held. In fact, so routine is the entry of a sequestration order that even the printed warning on the photo array shown to the two witnesses in this case clearly contemplated that such an order would soon enter. On this score it provided, in relevant part, as follows: "Please do not discuss this case with other witnesses nor indicate in any way that you have, or have not, identified someone." Against this background, the Court has no reason for assuming that Mr. Clement would ultimately have learned that Mr. Valle also identified the defendant. Thus, Detective Beaudin's violation of the warning printed on her own photo board cannot simply be treated as a harmless irrelevancy.
As to the defendant's final basis for claiming that the police identification procedures by which the challenged identifications were obtained were unnecessarily suggestive — that his photo was unfairly highlighted in the array shown to the two witnesses who identified him — the Court agrees with the State that the array used in this case did not unfairly highlight the defendant or promote his identification by the witnesses in any way. All of the photos, including the defendant's, depict young Hispanic males in their twenties, most of them have braids or corn rows in their hair, and none of them has any unusual physical features that mark him either as a likely suspect or as an obvious non-suspect in light of the witnesses' descriptions of the perpetrator. The array thus presents a very fair sample of photographs of persons who meet the perpetrator's reported description. In addition, although the defendant's photograph is different from the others because it contains a large white scale, six of the other seven photographs contain visible height scales in them, suggesting only that they are police photos. They contain no other information suggesting which photo probably shows the person who committed or was suspected of committing the crimes under investigation. For these reasons, it cannot reasonably be concluded that the defendant's photo was unfairly highlighted in the challenged array.
B. Alleged Unreliability of Resulting Identifications in the Totality of the Circumstances
Notwithstanding the Court's conclusion that certain aspects of the procedures by which the challenged photo identifications were obtained were unnecessary suggestive, the Court cannot find that either challenged identification was thereby rendered unreliable in the totality of the circumstances in which it was made. First, in reference to Mr. Valle, the Court agrees with the State that his identification of the defendant was the reliable product of his own independent memory of the face of the gunman, as evidenced by his spontaneous identification of him at the parole office earlier that same day. Mr. Valle's initial opportunity to observe the gunman's unhidden face was excellent as he saw him standing in the lighted common hallway of the apartment building talking to Mr. Delgado through the front door of his apartment, before the robbery began. His second opportunity to view the gunman occurred for several minutes thereafter, as he sat facing him on the living room couch, from a distance of one or two feet, while the robbery was taking place. The lighting in the living room was surely poorer than that in the common hallway, the game room or the kitchen. Even so, as he recalled in his testimony, the light coming into the room from the game room, and especially the kitchen, which was behind him and to his left, made it light enough in the room to see the two robbers once his eyes had adjusted to the darkness. Coming in at that angle, the light from the kitchen must have illuminated the faces of the robbers, helping to fix them in his memory. Not surprisingly, then, Mr. Valle informed police investigators, as the State has argued, that he could identify the gunman if he saw him again, as he claims to have done. Mr. Valle's description of the gunman was detailed, and in all ways consistent with that of the defendant. Thus, when he selected the defendant's photo, he recalls making his identification immediately and with great confidence. Against this background, the Court must conclude that Mr. Valle's identification was based only on his personal memory of the gunman, and is reliable in the totality of the circumstances.
In reference to Mr. Clement, although the unnecessary suggestiveness of Detective Beaudin's post-identification commendation of him for selecting the right photo is well established on this record, it is equally well established that he too had a reliable independent basis for making his challenged photo identification of the defendant based solely upon his memory of the gunman's face. Like Mr. Valle, Mr. Clement told police officers who interviewed him immediately after the robbery that he thought he could identify the gunman if he ever saw him again. His confidence, as the State has argued, was based both on what he observed of the gunman's face during the robbery, when he sat for several minutes on the couch in Mr. Delgado's unlighted living room, but upon his earlier opportunity to see that face in the fully lighted game room after the robbers announced a stickup. Mr. Clement's observations of the robbers' faces in a well-lighted area occurred when they entered the game room, announced a stickup and forced everyone present to enter the living room. Once his eyes adjusted to the light in the living room, which shone upon the robbers' faces from the nearby kitchen door, he was able to see.
Based upon his observations as aforesaid, Mr. Clement also gave a detailed description of the gunman. Although his description, like that of Mr. Valle, did not describe certain of the gunman's facial features such as eye color, hair color, distinguishing facial marks or tattoos, it contained a description of his clothing and its color, the fact that he was a young Hispanic male, in his early twenties, who wore his hair in braids and/or corn rows.
It is true, of course, that Mr. Clement described feeling some hesitation about making his identification of the defendant's photo, even though his eye had gone right to that photo when he first viewed the array and he said that, even as he hesitated, he was ninety percent certain that the defendant was the gunman. The Court agrees with the State, however, that the only reason he felt such hesitation was his genuine concern, which was reasonable under the circumstances, that he not identify an innocent man. Mr. Clement claims credibly that he did not know if the person who committed the robbery was in the array. Hence, although he believed that the police would not have invited him to view photos if they didn't at least have a suspect in mind, he was not at all sure that the true perpetrator would be in the array, and so he commendably took his time in order not to implicate an innocent man. The Court thus agrees with the State that his selection of the defendant was not made by the exercise of relative judgment, but by the process of positive selection based upon his personal memory of the gunman's face.
As for future in-court identifications of the defendant by Mr. Clement, whose confidence in his own identification may well have been bolstered by Detective Beaudin's post-identification comment to him, the Court agrees with the State that Mr. Clement is a particularly credible, forthcoming witness, who still appears to be quite capable of explaining the mental processes by which he made his challenged identification. The Court has every confidence that his ability to recall and relate such details honestly will remain unaffected by Detective Beaudin's unfortunate mistake, and thus will be sufficiently reliable in the totality of the circumstances not to require their suppression as evidence.
IV. CONCLUSION
For all of the foregoing reasons, the defendant's Motion to Suppress Identifications is hereby DENIED. IT IS SO ORDERED this 4th day of January 2006.