Opinion
5:20-CR-88-FL
08-13-2021
UNITED STATES OF AMERICA v. MARKUS LAMAR MARROW, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, United States Magistrate Judge
This matter comes before the court on Defendant Markus Lamar Marrow's motion to exclude in-court identification testimony. [DE-33]. The Government responded in opposition to the motion [DE-37], and the court held an evidentiary hearing on July 29, 2021. For the reasons that follow, it is recommended that the motion to exclude be allowed as to Vikki Allen's testimony and otherwise denied without prejudice.
I. PROCEDURAL BACKGROUND
A Grand Jury sitting in the Eastern District of North Carolina returned an indictment charging Markus Lamar Marrow (“Marrow”) with possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 on February 19, 2020. [DE-9]. Marrow filed the instant motion pursuant to the Due Process Clause of the Fifth Amendment and Fed.R.Evid. 403 and 805, contending that the investigatory identification procedures were impermissibly suggestive and that identification testimony by Patrick Allen (“Patrick”), Vikki Allen (“Vikki”), and Kelvin Evans (“Evans”) is unreliable. [DE-33] at 6-19. In its response, the Government concedes that the Vikki's identification testimony should be excluded. [DE-37] at 2. Accordingly, it is recommended that Defendant's motion as to Vikki's testimony be allowed.
The Government further contends that Patrick's identification testimony should be presented to the jury in order to judge its credibility and that his statement to Evans is excepted from the rule against hearsay. [DE-37] at 4-12. At the suppression hearing, Marrow presented surveillance video footage and a binder of exhibits including police reports, eyewitness identification forms, a newspaper article, maps, and photographs. The Government did not object to the court's consideration of these materials, and they were admitted and have been reviewed in the formulation of this recommendation.
II. STATEMENT OF FACTS
At the hearing, neither party called a witness, but counsel for Marrow played the surveillance video, submitted the exhibit binder, and proffered the following facts. According to the materials to presented, at 11:42 p.m. on January 13, 2020, Officer Burnett of the Oxford Police Department was dispatched to the Goshen Street area of Oxford, North Carolina to respond to a call reporting shots fired. Def.'s Ex. 36 at 45. The video footage shows that Patrick was just outside of his mother's house at 127 Alston Court when two individuals shot and robbed him and then ran away from the scene. While Officer Burnett was approaching the area, Vikki, Patrick's mother, flagged down Officer Burnett and told him the location of where her son had been shot. Def.'s Ex. 36 at 45. Vikki told Officer Burnett that she was on her way to the hospital, and she then left. Id. Office Burnett and Granville County Sheriff's Deputy Watson secured the crime scene and taped off the property; while they were working, they were in communication with Sergeant Threatt and Detective Parrish. Id.
The statement of facts is based on argument, proffer by counsel, what counsel believes to be reasonable inferences, and observations from the video and written materials. No witness testified.
Sergeant Threatt responded to Granville Medical Center in reference to a gunshot victim. Id. at 46. The victim, Patrick, was not cooperative with Sergeant Threatt or Corporal Jones. Id. Corporal Jones reported to Sergeant Threatt that Vikki had told Corporal Jones that she was in her house, her son took the dog outside, and she heard a loud bang; she walked outside to see her son lying on the ground asking for help, and Patrick's cousin took him to the hospital. Id.
Corporal Jones also responded to Granville Medical Center and spoke with Patrick in the trauma room. Id. Corporal Jones asked Patrick if he knew who shot him, and Patrick looked away and shook his head no. Id. Corporal Jones spoke with the person who had transported Patrick to the hospital, Evans. Id. Evans told Corporal Jones that he was leaving his brother's house on Alston Court when he heard Patrick yelling. Id. Evans went to investigate and saw that Patrick had been shot. Id. He drove Patrick to the hospital, and on the way, Patrick told Evans that Marcus Marrow was the person who shot him. Id. In his report of the incident, Corporal Jones does not mention whether Evans told Corporal Jones that Patrick and Marrow were in a car together when Marrow was shot. However, at the July 29, 2021 hearing, Marrow's counsel proffered that Evans said that Patrick and Marrow were sitting in a car together, which conflicts with the surveillance video showing that they were outdoors.
Marrow's counsel also proffered that Corporal Jones and Vikki had a conversation outside of Granville Medical Center as Corporal Jones was leaving and Vikki was arriving. Vikki told Corporal Jones that she did not know who shot Patrick, and Corporal Jones said that he did not know, either. Marrow's counsel proffered further that Vikki likely returned home without going into Granville Medical Center because Patrick was being transferred to another hospital and Vikki had returned to 127 Alston Court ten minutes after her exchange with Corporal Jones. Marrow's counsel submitted a map showing that it would take nine minutes to drive from the hospital to Vikki's house. Def.'s Ex. 75. It is therefore unlikely, Marrow contends, that Vikki had time to go into the hospital, find her son, and speak with him before returning home.
Detective Parrish had also responded to 127 Alston Court, investigated the crime scene, spoke with Vikki, and got the surveillance video from her. Def.'s Ex. 36 at 46-47. At some point, while Detective Parrish was at Vikki's home, Sergeant Threatt told Detective Parrish that Evans had told him that Patrick told Evans that Marrow was the shooter. Id. at 47. Marrow proffered at the hearing that Sergeant Threatt told Detective Parrish about Evans's statement that Marrow and Patrick were in a car together, and Detective Parrish said that the story was changing and it was all secondhand knowledge. Defendant proffered that Detective Parrish's bodycam footage shows that he asked Vikki if Patrick was with Marrow when he was shot, and Vikki said no. To summarize, Marrow's name reached Vikki at that time through several layers of hearsay:
The bodycam video footage is not part of the hearing record and has not been reviewed by the undersigned.
1. Patrick allegedly told Evans on the way to the hospital that Marrow was the shooter.
2. Evans told Sergeant Threatt at the hospital that Patrick had identified Marrow.
3. Sergeant Threatt told Detective Parrish about the identification.
4. Detective Parrish asked Vikki if Marrow was with Patrick when he was shot.
Defendant proffered that Detective Parrish also asked Vikki what she had heard, presumably from people in the community, and she said she had heard it was Monique's son and thought his name was Markus. Detective Parrish asked which son, and Vikki said he was “the one with the hair.” Detective Parrish asked if he was the light-skinned son, and Vikki said she did not know and that she was just telling him what she had heard.
Detective Parrish compared Marrow's photographs in law enforcement databases to Vikki's surveillance video and concluded that they appeared to be the same person. Id. Detective Parrish consulted with other officers, and they agreed that the subject in the video matched Marrow's photographs. Id. Marrow was subsequently arrested. Id.
On January 23, 2020, Vikki shared a newspaper article on Facebook that reported that Marrow had been arrested for shooting Patrick. Def.'s Ex. 32.
On January 29, 2020-approximately fifteen days after the shooting-Patrick and Vikki went to the police station to be interviewed by Sergeant Dickerson and Detective Parrish. Def.'s Ex. 36 at 48. Patrick told the officers that Marrow and Rashawn Evans approached him while he was sitting outside of Vikki's house. Id. Marrow pointed a gun at him and demanded money. Id. Patrick opened the door and tried to go into the house, but Marrow shot him and Rashawn grabbed Patrick's legs and pulled him down. Id. Marrow again demanded money and pointed the gun at Patrick's head. Id. Marrow took approximately $760 from Patrick's inside hoodie, and Patrick told police that the money was drug proceeds. Id. He also stated that on the way to the hospital, he told Evans that Marrow had shot him. Id. Vikki told police that Patrick had told her at some unspecified time that Marrow had shot him. Id.
Marrow also proffered that he and Patrick had met previously. They had spent time in jail together, so Patrick was familiar enough with Marrow's appearance to give a general description of him to police on January 29.
III. DISCUSSION
The Due Process Clause of the Fifth Amendment protects against unnecessarily suggestive identification procedures. Kirby v. Illinois, 406 U.S. 682, 691 (1972) (citing Stovall v. Denno, 388 U.S. 293 (1967); Foster v. California, 394 U.S. 440 (1969)). Additionally, Fed.R.Evid. 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by ... unfair prejudice.” The Fifth Amendment analysis of whether an identification ought to be excluded is a two-step inquiry: first, the court determines whether the procedure was impermissibly suggestive, and second, if it was, the court determines whether the identification was nonetheless reliable under the totality of the circumstances. United States v. Mendoza, 401 Fed. App'x 739, 741 (4th Cir. 2010).
A. The court is unable to determine at this time whether the identification procedure was impermissibly suggestive.
When considering whether an identification procedure is impermissibly suggestive, “the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.'” Neil v. Biggers, 409 U.S. 188, 198, (1972) (quoting Simmons v. United States, 390 U.S. 337, 384 (1968)). If there is no “substantial likelihood of misidentification, ” the evidence is “properly allowed to go to the jury.” Biggers, 409 U.S. at 201. It is Marrow's burden to show that the procedure was unnecessarily suggestive. United States v. Briggs, No. 4:17-CR-33, 2017 WL 3015811, at *3 (E.D.Va. July 14, 2017) (citingHoldren v. Legursky, 16F.3d57, 61 (4th Cir. 1994)), aff'd, 755 Fed.Appx. 222 (4th Cir. 2018).
“A procedure is unnecessarily suggestive if a positive identification is likely to result from factors other than the witness's own recollection of the crime.” Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997); see United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (holding that a prosecutor's questions to a witness to elicit an in-court identification were unnecessarily suggestive because “the phrasing of [the] question suggests the desired response”). Here, Marrow contends that Patrick's identification resulted from Evans's statements to police, which were conveyed to Vikki on the night of the shooting and then presumably to Patrick at some point before January 29, and/or the community rumors that “Monique's son” was the shooter. The Government contends that Patrick had ample opportunity to view his assailant, so his identification likely resulted from his own recollection of the crime, and that the jury ought to determine its reliability. Marrow responds that the court should act as a gatekeeper and prevent unnecessarily suggestive identifications from reaching the jury, for if a jury hears the identification, Marrow would be prejudiced even if an objection is later sustained.
There are two versions of what may have occurred in this case, and they appear to be equally plausible at this stage of the proceedings:
1. Version One: Patrick's identification may have resulted from his own recollection.
In this version of events, Patrick is able to recognize his attacker as Marrow because they previously spent time together in jail. The surveillance video shows that Patrick looks straight at the shooter, so it is plausible that he could recognize him. On the way to the hospital, Patrick tells Evans, his trusted friend and relative, that Marrow shot him. However, when interviewed by police at the hospital, Patrick decides not to identify his attacker because he is worried about his own criminal liability. The money stolen from Patrick was drug proceeds, so Patrick is concerned that any investigation into the incident may incriminate him. After thinking about it for two weeks, and perhaps after reading the newspaper article and learning that Marrow was arrested even without his statement, Patrick decides to speak with police after all. He goes to the police station with Vikki and identifies Marrow.
2. Version Two: Patrick's identification may have resulted from other sources.
In another equally plausible version of events, Patrick is unable to recognize his attacker because he is focused instead on the gun. When interviewed by police, Evans concocts a story about Marrow shooting Patrick in a car. The location of the shooting in Evans's story is known to be false, as the surveillance video demonstrates, so the identity of the shooter may have been invented as well. Evans's motivation for lying is unknown, but it is plausible that he may have had some personal reason to incriminate Marrow. Regardless of Evans's intentions, the fact that Marrow is a suspect in the shooting reaches Vikki through Detective Parrish while he is investigating the crime scene. When Vikki sees the newspaper article announcing that Marrow was arrested, he is confirmed in her mind as the shooter. She tells Patrick at some point between January 13 and January 29, and when they both go to the police station on January 29, Patrick identifies Marrow as the shooter despite having no independent recollection.
“Weapon focus” may occur when a victim is under a great deal of stress and fear; when a gun is pointed at a person, that person may train his or her attention on the weapon and not on the person holding it. See Greene, 704 F.3d at 308 (“Weapon focus can ‘impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.'” (quoting New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011))); Moore v. Keller, 917 F.Supp.2d 471, 485 (E.D. N.C. 2012), aff'd in part, rev'd in part, 723 F.3d 488 (4th Cir. 2013).
3. The court is unable to determine which version of events is the most plausible.
Without testimony from Patrick, Vikki, Detective Parrish, Sergeant Threatt, and/or Evans, the court cannot determine which story is accurate. It is plausible that Patrick's identification resulted from his own recollection, and it is equally plausible that it resulted from sources other than his own memory. Accordingly, Marrow has not met his burden of showing that the identification procedures was impermissibly suggestive; however, it is recommended that the motion be denied without prejudice so that Marrow may make it again, if he wishes, once the court hears testimony at trial.
B. The court cannot determine at this time whether the identification was reliable.
Even if Marrow had met his burden of showing that the investigatory procedure was unnecessarily suggestive, the court would be unable nonetheless to determine whether Patrick's identification was reliable. See Briggs, No. 4:17-CR-33, 2017 WL 3015811, at *5 (finding that the identification procedure was not unnecessarily suggestive but stating that “in the interest of providing a thorough and complete analysis of this issue, the Court will address the second part of the Satcher test and explain why the identification was reliable under the totality of the circumstances.”). In order to properly assess whether the identification is reliable, the court considers the following factors: “the opportunity of the witness to view the accused at the scene of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the accused, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Satcher, 126 F.3d at 566 (citing Biggers, 409 U.S. at 199-200).
The parties argued at the hearing as to the first factor, with Marrow contending that Patrick did not have much of an opportunity to view his attacker and the Government arguing that the video shows Patrick looking directly at his assailant. As for the fifth factor, fifteen days passed between the time of the crime and Patrick's identification of Marrow at the police station.
However, because Patrick did not testify at the hearing, the court was not presented with sufficient facts to determine his actual opportunity to view his attacker at the scene of the crime or his degree of attention. Because no officer testified at the hearing, the court cannot determine the accuracy of Patrick's description of Marrow or Patrick's level of certainty when making the identification. Accordingly, should the court later find that the identification procedure was unnecessarily suggestive, it is recommended that the court consider any testimony from Patrick and the officers when weighing the above factors to determine whether the identification was nonetheless reliable. It is recommended that the motion to exclude identification testimony be denied without prejudice at this time because the court lacks the necessary information to determine whether the identification was reliable.
The court has observed that a sister district, the District of South Carolina, conducts pretrial Biggers hearings to determine whether identification testimony should be excluded. See, e.g., Flowers v. Joyner, No. 819CV00125SALJDA, 2020 WL 2066954, at *10 (D.S.C. Jan. 29, 2020) (finding no error when “[t]he trial court held an extensive Biggers hearing, ” including hearing testimony from the detective who conducted the identification procedure, “and applied the Biggers factors”), adopted by 2020 WL 2063738 (D.S.C. Apr. 29, 2020); Gibbs v. Stevenson, No. 1:13-3382-TMC, 2015 WL 7188341, at *5 (D.S.C. Nov. 10, 2015); Isom v. Stevenson, No. 8:11-CV-01747-TLW, 2012 WL 2367693, at *14 (D.S.C. Apr. 26, 2012), adopted by 2012 WL 2368393 (D.S.C. June 21, 2012); Green v. Padula, No. CA 6:08-1278-MBS-WMC, 2009 WL 692923, at *3 (D.S.C. Mar. 12, 2009). In this case, however, the evidence presented at the July 29 hearing was insufficient for this court to determine whether the identification procedure fan afoul of the Fifth Amendment.
C. It is recommended that Marrow's motion to exclude Patrick's identification as hearsay be denied without prejudice.
Marrow also contends that Patrick's statements to Evans in the car on the way to the hospital are hearsay. [DE-33] at 18. Marrow anticipates that the Government will use the statements to explain why police suspected Marrow was the shooter. Id. The statements may appear as hearsay-within-hearsay in Evans's testimony or in the officers' testimony.
Hearsay is “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). If the Government offers statements made by Patrick to Evans to show why police narrowed their investigation and not to prove the truth of the statement-i.e., that Marrow was the shooter-then they are not hearsay. See United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (“an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken”); United States v. Fox, 495 Fed.Appx. 290, 292 (4th Cir. 2012) (holding that a statement was not hearsay because it was “not offered for the truth of the matter asserted, but rather to explain why [the officer] was looking for Fox's vehicle on the date in question”). Accordingly, the court is unable to determine whether the statements are hearsay before knowing how the Government intends to use the evidence at trial. It is therefore recommended that the motion to exclude Patrick's statements to Evans as hearsay be denied without prejudice. If the Government elicits those statements at trial, Marrow may make the appropriate objection.
The Government contends that even if the statements are hearsay, they fall within the present sense impression and excited utterance exceptions to exclusion from evidence. [DE-37] at 12. A present sense impression is a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Fed.R.Evid. 803(1). An excited utterance is a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Fed.R.Evid. 803(2). Both exceptions “require a factual inquiry into the timing of the statement and the declarant's mental state.” United States v. Woods, 561 Fed.Appx. 270, 274-75 (4th Cir. 2014). Here, the court has been presented with few facts regarding how much time had passed between the shooting and Patrick's statements and Patrick's mental state. The Government argued that the statements were made shortly after the shooting, as Patrick was on his way to the hospital, and that he was still under the stress of being shot because he had not yet received medical care. However, without Patrick's testimony, the court can only guess as to the precise timing of the statements and his mental state. Accordingly, the court is unable to determine whether the statements were present sense impressions or excited utterances. See United States v. Jones, 742 Fed.Appx. 710, 712 (4th Cir. 2018) (“There was simply not enough evidence to show that the hearsay was uttered contemporaneously or substantially contemporaneously to the event.”). It is recommended that the motion to exclude the statements as hearsay be denied without prejudice, and if Marrow objects to the statements at trial, the Government may argue at that time that they are excepted from the rule against hearsay.
IV. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Defendant's motion to exclude identification testimony of Patrick Allen and Kelvin Evans [DE-33] be DENIED WITHOUT PREJUDICE. It is RECOMMENDED that the motion be ALLOWED as to Vikki Allen's identification testimony.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 27, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b). Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).