Opinion
CRIMINAL ACTION NO. 02-10343-GAO.
August 1, 2003.
MEMORANDUM AND ORDER
The indictment alleges that on July 29, 2002, the defendant, James Holliday, possessed a firearm in violation of 18 U.S.C. § 922(g)(l). According to the indictment, Holliday engaged in a scuffle with John Lydstone, a Boston Police Officer, during which Holliday allegedly grabbed Lydstone's weapon and fired three shots at Lydstone, one of them hitting him in the foot. A few days later, when shown a photographic array, Lydstone and his partner at the time of the incident, Terrance Pennington, each separately identified Holliday as the man who grabbed Lydstone's gun. Holliday now moves to suppress the identification testimony of both officers on the basis that the photographic array was unduly suggestive. For the reasons discussed below, the motion to suppress is denied.
A. Summary of Pertinent Facts
At approximately 10:00 p.m. on July 29, 2002, Officers Lydstone and Pennington were on routine patrol within McLaughlin Park in the Roxbury neighborhood of Boston. They observed a group of seven or eight individuals who appeared to be drinking beer from bottles. For reasons that are not challenged and are not relevant to the present motion, Pennington attempted to conduct a "pat frisk" of one of the men in the group, whereupon the man ran away. Lydstone pursued and caught the man after a short chase, grabbing the back of his shirt. Lydstone and the man fell to the ground, and a struggle ensued during which the man's shirt came up and Lydstone saw what he believed might be a gun in the waistband of the man's pants. In response, Lydstone pulled out his own weapon and pointed it at the man. Apparently concerned that Lydstone was going to shoot, the man yelled, "No, no!" and grabbed Lydstone's gun. The two struggled for control of the gun, and after a few seconds, the man wrested the gun from Lydstone. He then fired the gun three times. After the first shot Lydstone felt a painful, burning sensation in his right foot, but he was able to get up and run away. The man fled in the opposite direction.
Lydstone was then taken to the hospital. At the hospital, Lydstone described the man he had struggled with as a black male, approximately 5'8" to 5'9" in height, weighing roughly 180 pounds, with long black dreadlocks. Lydstone also described distinctive patches of white pigmentation on the man's face, hands, and neck. It appeared to Lydstone that the suspect had some sort of skin disease. Lydstone said that when he first encountered the man, he thought the man was wearing a mask. Pennington gave a similar description of the suspect.
At some point that evening, the Boston Police brought an individual they had apprehended in the area of the shooting to the hospital and asked Lydstone whether it was the man who shot him. Lydstone said that it was not. There was no evidence of the particular features of the appearance of that man.
Further investigation led the police to suspect that Holliday was the man involved in the scuffle with Lydstone and had taken his weapon. To test this theory, Boston Police Detective Mark Coleman compiled a photo array that included a photograph of Holliday. Coleman used an extensive police database of booking photos to assemble the array. The Boston Police Department has software which allows an officer to search the database for pictures based on physical characteristics such as sex, race, build, age, height, weight, facial features, and disabilities. Because of Holliday's unusual skin pigmentation, Coleman had to conduct several searches to come up with photographs that he felt matched the description Lydstone had given. Coleman ultimately selected photos of four other black males who appeared to have varying degrees of pale or bleached skin discoloration on their faces. He also added four pictures of Hispanic males with long braided hair. The resulting array, containing nine photos, was shown to both Pennington and Lydstone on July 31, 2002, two days after the event. The same procedure was followed with both officers: they were each put into a room, given the array, and left alone for a period of time. Both officers independently picked Holliday's picture as showing the man who had taken Lydstone's weapon, and both said they were very certain of their identification.
Holliday ultimately was apprehended in Georgia about two weeks after the incident.
B. Discussion
To determine whether the admission of identification evidence would violate a defendant's right to due process, the Court must decide "whether the [identification] procedure was impermissibly suggestive."United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996). If the procedure was not impermissibly suggestive, "no further inquiry. . . is required, " and judging the reliability of the identification evidence "is a matter for the jury." Raheem v. Kelly, 257 F.3d 122, 133 (2d Cir. 2001) (citation and quotation omitted). If, on the other hand, the Court finds that the process used was impermissibly suggestive, "it must decide whether the identification itself was reliable under the totality of the circumstances, notwithstanding the suggestive procedure." Watson, 76 F.3d at 6.
Holliday argues that the photo array used with Officers Pennington and Lydstone was the equivalent of showing them a single photograph because his appearance is so different from the other individuals shown in the array. There is some truth to Holliday's argument. Unlike any of the other men in the array, he has generally dark skin but a very noticeable patch of lighter skin in the area of his chin, nose, and eyes. However, the government is not required to compile a photo array of people who are identical to one another. Rather, it must compile an array of pictures that "fit the general descriptions" offered by the witnesses. United States v. Galati, 230 F.3d 254, 260 (7th Cir. 2000). The investigator compiling the array in this case made a good faith effort to meet this requirement. He went to a large database of images and produced a series of pictures in which all of the men are of similar build, four of the men are black with skin discoloration (though none of the four has the dramatic skin pattern that the defendant has) and the remaining four males have hairstyles similar to Holliday's dreadlocks. Although none of the men shown in the array are likely to be readily confused with Holliday, they do resemble, to varying degrees, the description that Pennington and Lydstone gave before the array was assembled.
Holliday was present at the hearing on the present motion, and I had the opportunity to observe his features. It is fair to say he has a highly distinctive appearance. It is important to note that it is not just the fact of the skin discoloration, but its pattern, that is so distinctive. It can be said, as Lydstone remarked, that at first glance it appears Holliday is wearing a mask. He is, it must be acknowledged, highly recognizable.
So even though in a real sense Holliday's picture stood out from the others, the array was not unnecessarily or impermissibly suggestive. Whether an identification procedure was unnecessarily or impermissibly suggestive depends on whether there was some "good reason" for the procedure that was used. See United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991) (quoting W. LaFave J. Israel, Criminal Procedure § 7.4(b), at 581 (1984)). Here, there is good reason for the dissimilarity between Holliday's appearance and the appearance of the other men in the array — his appearance is highly unusual. It would be unreasonable to expect the police to find pictures of eight other men who not only shared his age, height, weight, hairstyle, and ethnicity, but in addition had a similar pattern of facial discoloration. Moreover, the ability to create a less suggestive array also was limited by the police department's need to act with some dispatch because the person who had taken Lydstone's gun and shot him was still at large and posed a potential threat to others in the community. See also Herrera v. Collins, 904 F.2d 944, 949 (5th Cir. 1990) (showing a single photograph to a witness not impermissibly suggestive where witness was hospitalized and perpetrator was armed and at large). Based on Coleman's testimony, I am satisfied that the police made an adequate effort to minimize the suggestiveness of the array under the circumstances.
While Holliday's unusual appearance may draw attention to his photo in the array, its very distinctiveness also lessens the concern that any identifying witness was misled into identifying the wrong person. (It may be noted in passing that so far as appears Lydstone was not unduly susceptible to suggestion. A one-on-one show-up, sometimes regarded as an inherently suggestive procedure, did not induce him to make an identification as he lay in the hospital soon after the conclusion of the incident.)
The identification procedure used in this case was not impermissibly suggestive. The motion to suppress is DENIED.
It is SO ORDERED.