Opinion
NO. 2018-K-1075
02-27-2019
STATE OF LOUISIANA v. WILL NEWSOME AND AARON HENDERSON
LOBRANO, J., DISSENTS AND ASSIGNS REASONS.
I respectively dissent from the majority's writ disposition that affirmed the district court's judgment suppressing the out of court, "one-on-one show up" identifications of the defendants, Will Newsome and Aaron Henderson ("Defendants"). I find that the district court erred; thus, I would grant the writ filed by the State, vacate the judgment suppressing the identifications and the finding of no probable cause, and remand for further proceedings.
From my review, I find that Defendants failed to prove, under the totality of the circumstances, that there was a substantial likelihood of their misidentifications. The district court abused its discretion in granting Defendants' motion to suppress and not allowing the admission at trial of the out-of-court, "one-on-one show up" identifications. The lower court and the majority placed an undue burden of proof on the State, which is not required at a pre-trial hearing on a motion to suppress an identification. See La. C. Cr. P. art 703 (D).
An out-of-court "one-on-one show up" concerns "an identification procedure that takes place shortly after a crime is committed, usually at the scene of the crime or the apprehension of a suspect, whereby a victim is asked whether the victim recognizes a person suspected to be the perpetrator of a crime against the victim." State v. Brown, 09-0884, p. 3 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, 978, quoting State v. Harold, 03-0649, p. 6 (La.App. 4 Cir. 11/12/03), 861 So.2d 262, 265, n. 2. "Such procedures are permissible when, for example, the accused is apprehended within a short time after the offense and is returned to the scene of the crime for immediate identification, because, under appropriate circumstances, a prompt in-the-field identification promotes accuracy and expedites the release of innocent suspects." Brown, 09-0884, pp. 5-6, 36 So.2d at 979.
This court, however, has rejected the idea that one-on-one identifications are suggestive per se or inherently suggestive. In State v. Green, 10-0791, pp. 8-9 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 580, we recognized that one-on-one identifications are generally not favored, although such identification procedures are permissible under certain circumstances where a "substantial likelihood of misidentification" is not present:
One-on-one identifications are permissible, for example, when the accused is apprehended within a relatively short period of time after the occurrence of the crime and is returned to the scene for immediate identification. Immediate confrontation assures the reliability of the identification-given that the perpetrator's appearance is fresh in the witness's mind-lessens the possibility that the perpetrator's clothes or appearance will be changed, and insures early release of innocent subjects. However, a one-on-one identification procedure is not suggestive per se. Thus, it necessarily follows that a one-on-one identification does not unduly focus the witness's attention on the accused, per se.
In addition to suggestiveness, a defendant must prove that there was a substantial likelihood of misidentification as a result of the identification procedure. Despite the existence of a suggestive pretrial identification, an identification may be permissible if there does not exist a "very substantial likelihood of irreparable misidentification." [Citations omitted.]
In Brown, 09-0884, p. 4, 36 So.3d at 978, we stated:
The constitutional basis for a motion to suppress an out-of-court identification is found in the Due Process protections of the United States Constitution's Fifth and Fourteenth Amendments. See Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In a motion to suppress, "the burden of proof is on the defendant to prove the ground of his motion ..." La.C.Cr.P. art. 703 D. Accordingly, the defendant bears the burden of proof on a motion to suppress an out-of-
court identification. State v. Stovall, 07-0343, p. 16 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1084. The burden of proof does not shift to the prosecution as it does in the context of determining the admissibility of evidence of a purported confession or due to a defendant's assertion that his rights have been violated after he has made an initial showing of a reasonable expectation of privacy and a warrantless search or seizure. See State v. Williams, 07-700, p. 8 (La.App. 4 Cir. 2/13/08), 977 So.2d 1101, 1109 (the prosecution must establish the admissibility of a purported confession by showing that it was voluntarily made), and State v. Bazile, 386 So.2d 349, 353 (La.1980) (on a motion to suppress, the burden of proof shifts to the prosecution to prove the admissibility of evidence once the defendant makes an initial showing that his rights have been violated by a warrantless search).
To prevail on such a motion, the defendant must show two things: that the identification procedure was suggestive, and, having substantiated that, he must show that there was substantial likelihood of misidentification as a result of the suggestive identification procedure. State v. Higgins, 03-1980, p. 19 (La.4/1/05), 898 So.2d 1219, 1231-32. Accordingly, even where the defendant has proven, or the court has presumed, the suggestiveness of an identification process, to carry his burden the defendant must also show that there was a substantial likelihood of misidentification as a result of the procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984); see also State v. Robinson, 09-0922 (La.App. 4 Cir. 3/10/10), — So.3d —, 2010 WL 830964. It is the likelihood of misidentification that violates due process, not suggestibility by itself, and thus the mere fact that an identification is unduly suggestive is not sufficient to establish its inadmissibility. State v. Harold, supra, 03-0649 at p. 6, 861 So.2d at 266.
Under Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the factors which courts must examine to determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentification include: 1) the witness's opportunity to view the criminal at the time of the crime; 2) the witness's degree of attention; 3) the accuracy of his prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation.
In this case, applying the Manson factors, no substantial likelihood of misidentification exists as a result of the one-on-one identification procedure. It is undisputed that the victim got a good look at his assailants. Although the robbery took place at night, it is uncontroverted that the area outside the victim's home was equipped with lighting that allowed the victim to get a good look at the perpetrators' faces such that the likelihood of misidentification was not substanital. Defendants fit the description provided by the victim who also positively identified the abandoned Honda Accord as the vehicle used in the commission of the robbery. He further identified Newsome (dark-skinned black male with braided hair) as the person who pointed a gun in his face demanding his belongings and Henderson (lighted-skinned male) as the person who had rummaged through his pockets. The victim was certain Defendants were the perpetrators of the robbery, and the time between the crime and the identification, approximately 30 minutes, was short enough for memory of the perpetrators' appearance to be in his mind. All of these factors establish that the identifications of Defendants were reliable and no substantial likelihood of misidentification was present.
Under such circumstances, the district court erred in not allowing a jury to weigh the victim's out-of-court identifications of Defendants. As the United States Supreme Court noted in Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S.Ct. 2243:
We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.Brown, 09-0884, p. 10, 36 So.3d at 981.
Thus, I find that the district court erred in granting Defendants' motion to suppress. I would grant the State's writ, vacate the judgment suppressing the identifications and the finding of no probable cause, and remand for further proceedings.