Opinion
Criminal Action No. 04-11 Section "N" (4).
March 2, 2005
ORDER AND REASONS
Before the Court is the Motion to Suppress Identification Testimony, filed by defendant Lovelle Lang. Having reviewed the defendant's motion and supporting memorandum, the government's opposition, the record and the applicable law, and having considered the arguments made in open court on February 23, 2005, the defendant's motion is DENIED.
I. Law and Argument
In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the Supreme Court recognized that the Due Process Clause of the Fifth Amendment guarantees a defendant's right to exclude testimony that results from unnecessarily suggestive procedures conducive to mistaken identification. See also Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1883, 32 L.Ed.2d 411 (1972). Proceeding from this premise, courts have developed a two-pronged test to determine the admissibility of identification testimony. To succeed on an identification suppression motion, a defendant must first prove the pretrial identification procedure was impermissibly suggestive. Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Fletcher, 121 F.3d 187, 194 (5th Cir. 1997). If the identification procedure was not impermissibly suggestive, the inquiry ends. See Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir. 1997) (citation omitted); see also United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000). If the procedure was impermissibly suggestive, the Court must determine "whether based on the totality of the circumstances, the [procedure] posed a very substantial likelihood of irreparable misidentification." United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000) (quotations and citations omitted). With this latter determination, the Supreme Court has set forth five considerations: (1) the witness's opportunity to view the perpetrator at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the level of certainty demonstrated when making the identification; and (5) the time between the crime and the identification ("the Biggers factors"). Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 382; United States v. Burbridge, 252 F.3d 775, 780 (5th Cir. 2001).
Through his motion, Lovelle Lang moves the Court to exclude from evidence the identification testimony of Bridgett Ferouillet, Thumula Mansour, Nihaya Mansour, Kay Mary, and Madison Mary. Lang further moves the Court to suppress any and all out-of-court identification by the above-named witnesses and to prohibit the government from eliciting any in-court identification by said witnesses. Lang argues that newspaper photographs and TV news broadcasts from which several witnesses identified Lang were so impermissibly suggestive to give rise to a substantial likelihood of irreparable misidentification.
In his motion, Lang also moved the Court to exclude from evidence the identification testimony of "other witnesses who identified him in the line up of November 14, 2003." See Def.'s Mem. in Support of Mot. to Suppress Identification Test., p. 1. Presumably, the defendant seeks exclusion of the identification testimony of Josh Katz, who, on November 14, 2003, positively identified Lang as one of the two men who robbed Katz, Kay Mary and Madison Mary at gunpoint on November 11, 2003. See generally New Orleans Police Department Item No. K-17061-03, Incident Report, Supplemental Report (Gov't Ex. 4).
A. Pre-Trial Identifications i. Bridget Ferouillet
With respect to this witness, the undisputed facts established at the hearing are as follows: Bridget Ferouillet was the victim of an October 6, 2003, 10:00 p.m., carjacking committed by two black men, whose faces were partially covered by dark handkerchiefs at the time. See New Orleans Police Department, Item No. J-10331-03, Incident Report, pp. 6 and 8 of 10 (Lang Ex. 1). On November 14, 2003, approximately five weeks after the incident, Ferouillet contacted the detective assigned to the case to advise him that she had seen a photograph of a man whom she described as one of her assailants, specifically the taller of the two assailants. See New Orleans Police Department, Item No. J-10331-03, Incident Report, Supplemental Report, p. 2 of 3 (Gov't Ex. 1). That photograph was one of three published in the Times-Picayune on November 13, 2003, in connection with an article entitled "Shootout follows crime spree," which referred to the November 11, 2003 Lakefront carjackings and the Metropolitan Street shootout. Id. at pp. 2 and 3 of 3. On November 19, 2003, at the request of the detective assigned to the case, Ferouillet signed and dated a copy of the newspaper article where Lang's photograph had appeared, and the detective thereafter placed the newspaper article on the books at central evidence and property. See id. at p. 2 of 3; see also New Orleans Police Department Evidence and Property Receipt No. 200332266 (Gov't Ex. 1). Based on the undisputed facts, Lang argues that any identification based upon the photograph is tainted as the content of the article upon which the identification was made is unduly suggestive, and the totality of the circumstances poses a very substantial likelihood of irreparable misidentification.
Having reviewed the record and the applicable law, however, the Court finds that the defendant's position is without merit. Here, it is undisputed that Ms. Ferouillet did not identify Lang through a show-up, a line-up, or a photographic spread prepared by police. In contrast to such procedures which involve state action, Ferouillet's encounter on November 13, 2003 with Lang's photograph "was unplanned and unexpected," and thus any identification based on the subject photograph's having been published in the newspaper does not give rise to a due process challenge. See United States v. Sharpe, 193 F.3d 852, 868 (5th Cir. 1999) (citing United States v. Seader, 440 F.2d 488, 496-97 (5th Cir. 1971)).
In fact, the police report indicates that, sometime between October 6, 2004 and November 13, 2004, the detective assigned to the case presented Ms. Ferouillet "a line up of the suspect, but she could not identify anyone in the lineup." See Item No. J-10331-03, Supplemental Report, p. 2 of 3.
ii. Thumula and Nihava Mansour
As stated above, the defendant Lovelle Lang also seeks exclusion of any pre-trial identifications given by Thumula Mansour and Nihaya Mansour. With these witnesses, the facts are undisputed that the two women were carjacked on October 30, 2003, at approximately 11:00 p.m., by two black men. See New Orleans Police Department, Item No. J-52228-03, Incident Report, Supplemental Report, pp. 1-2 of 13 (Gov't Ex. 2). Of the two men, one wore a black mask, and one did not wear any type of mask. Id. at p. 2 of 13. Both women indicated that they got a good look of the unmasked assailant's face and that they could identify him if they saw him again. Id. Both women also stated that, as the two men left the scene of the crime, the unmasked assailant drove the vehicle. Id. Within one week of the crime, the detective assigned to the case met with the two women, individually and on separate dates. Id. at p. 4 of 13. Specifically, on November 5, 2003, the detective met with Thumala Mansour and presented her with a line-up of the photographs of six black males, with Lovelle Lang's photograph in the #2 position. Id. at pp. 3-4 of 13. Thumala first commented that the individual in the #1 position looked familiar, but was not one of the two assailants. Id. at p. 4 of 13. Though not immediately, she then stated that the individual in the #2 position (Lang) "looks like" the unmasked man who robbed her and her mother, Nihaya. Id. The detective then instructed Thumala to not tell anyone else about the photographic line-up. Id. Two days later, on November 7, 2003, the detective met with Nihaya Mansour and presented her with the same photographic line-up. Id. Nihaya immediately identified the individual in the #2 position (Lang) as one of her assailants, specifically the one who drove off with the vehicle. Id. Thereafter, the detective went back to the police station, at which time he contacted Lang's place of employment, TCI, and received a facsimile copy of Lang's employment photograph. Id. at pp. 3-4 of 13. See also TCI Photograph of L. Lang (Lang Ex. 4). According to the Supplemental Report, Lang's hairstyle in the TCI picture coincided with the description given by the Mansour women. Id. at p. 4 of 13. The detective then prepared an arrest warrant for Lang for the armed robbery of the Mansour's. Id. at pp. 2 and 4 of 13.
A Nextel Motorola cellular telephone was found in Thumala Mansour's vehicle, which was recovered within hours of the incident. See Item No. J-52228-03, Supplemental Report, p. 2 of 13. On Monday, November 3, 2003, the detective assigned to the case discovered that the telephone was registered to TCI Trucking and Warehousing in Harahan, Louisiana, and that the phone was issued to Lovelle Lang, who was employed by TCI as a driver. See id. at p. 3 of 13. Lang was then identified as a suspect.
After preparing the photographic line-up but prior to presenting it to either of the Mansour women, the detective noted that Lang had a different hairstyle in the line-up photograph in comparison to the hairstyle described by the two women immediately following the carjacking. See Item No. J-52228-03, Supplemental Report, pp. 3-4 of 13.
Based on these facts, the defendant seeks to exclude the pretrial identifications made by Thumala Mansour and Nihaya Mansour. With respect to the asserted suggestiveness of the procedure employed, Lang directs the Court's attention to the fact that, in both photographic line-up, Lang's photograph was placed in the top center position and was slightly larger than the other photographs in the line-up. Lang also emphasizes that neither witness gave immediate positive identifications, and both stated that Lang "looked like" the perpetrator. Lang also argues that the witnesses' identifications are tainted as, after having been shown the photograph line-up, the police officer conducting the procedure obtained a different photograph of Lang from Lang's employer, in which Lang's hair was in a style similar to that described by the witnesses, and presented each witness that single employment photograph. Lang contends that this latter procedure suffers from the same defects as a traditional "show-up," in which the witness is shown only a single individual.
With respect to photograph line-ups, the case law is well-settled that photo line-ups are not per se impermissibly suggestive. Simmons v. United States, 390 U.S. 377, 384-85, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247 (1968). Further, in determining whether the procedure meets the standard regarding suggestiveness, only the picture line-up itself and the facts surrounding its presentation must be evaluated. See United States v. Kimbrough, 481 F.2d 421, 424 and n. 6 (5th Cir.) (quoting United States v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970)), cert. denied, 414 U.S. 1114, 94 S.Ct. 845, 28 L.Ed.2d 741 (1973).
In this case, the photographic line-ups (referred to as "six packs") were preserved and admitted during the hearing. The Court has personally viewed the photo arrays presented to Thumala Mansour and Nihaya Mansour. Based on its review of these "six packs", the Court concludes that the composition of the line-ups was not suggestive (much less, "unduly suggestive") and that the defendant's photograph was not placed with grossly dissimilar individuals. Specifically, there is nothing unduly suggestive about the placement of Lang's photograph at the #2 position, i.e., in the center position of the upper row. See Photographic Line-up (Gov't Ex. 3; Lang Ex. 5). Also, contrary to the defendant's argument, Lang's photographic is not the largest photograph included in the line-up. In fact, of the six photographs presented to the Mansour's, all three photographs on the top row are ones taken in closer proximity to the subject, while all three subjects in the bottom row appear to be set back further from the camera. See id. Further, all six individuals whose photographs were presented to the two witnesses are younger black men, with darker complexions and short hair styles. See id.
Additionally, having reviewed the record, the Court finds that Lang's argument regarding one witness having viewed the employment photograph is completely unfounded and therefore does not alter this Court's analysis. Indeed, while the record reflects that the detective did obtain the photograph (or a facsimile copy thereof) from Lang's employer TCI, the record does not support the assertion that either witness was shown the TCI photograph. See Item No. J-52228-03, Supplemental Report, p. 4 of 13. Further, the undisputed facts do not support any argument that the overall presentation of the photographic line-up to Thumala Mansour and later to Nihaya Mansour was unduly suggestive. Each witness viewed the photographs on separate dates, and Thumala was cautioned to not speak to anyone, including her mother Nihaya, about the presentation. See id. Also, the defendant has not presented any evidence that any attempt was made to influence either of the Mansours. Because the Court finds that the pre-trial identifications made by Thumala Mansour and Nihaya Mansour were not the products of an unduly suggestive procedure, the Court need not consider the Biggers factors to determine if the identifications are otherwise reliable.
iii. Kay Mary, Madison Mary and Josh Katz
With respect to the pre-trial identifications by Kay Mary, Madison Mary and Josh Katz, the undisputed facts, as established at the hearing, are as follows: Shortly after midnight on November 11, 2003, three black men approached Kay Mary, Madison Mary and Josh Katz at gunpoint and forced their way into the victims' home. See New Orleans Police Department, Item No. K-17061-03 Incident Report, p. 6 of 12 (Lang Ex. 1). Once inside, the perpetrators forced the victims to lay face down on the floor, with pillows over their heads, at which time one of the three men ransacked the house, took valuables and all three perpetrators then fled. See id., pp. 6-7 of 12. It was also established at the hearing that, shortly after the robbery, the witnesses saw a television news broadcast covering the Lakeshore Drive and Metropolitan Street incidents, during which a photograph of Lovelle Lang was shown. The witnesses subsequently contacted the detective assigned to their case to advise him of such identification. On November 14, 2003, within two days of the news broadcasts, Kay Mary, Madison Mary and Josh Katz were presented a six-person photographic line-up at their home. See generally, New Orleans Police Department, Item No. K-17061-03, Incident Report, Supplemental Report (Gov't Ex. 4). Each was presented the same line-up, at separate times, and in separate rooms of the house. See id. Also, each immediately made a positive identification of Lovelle Lang as one of the subjects who robbed them. Id.
See note 1.
Here, Lang's primary contention is not to any suggestiveness of the actual photographic line-up. Rather, Lang argues that the identifications based on the photo line-ups were ones based on "recognition" and not "identification." Specifically, Lang argues that the photographic array is impermissibly suggestive because it amounted to the witnesses selecting the picture of the individual whose same photograph they had already seen on the news. For this argument, the defendant has directed the Court's attention to what the defendant believes are two crucial elements to establishing impermissible suggestiveness. First, the defendant places great emphasis on the witnesses' having first identified Lang through means of a television news broadcast, the content of which described the violent crimes occurring at Lakeshore Drive and Metropolitan Street. The defendant argues that this fact, combined with the fact that the same photograph shown on the news broadcast was used in the photographic line-up, renders the procedure impermissibly suggestive. Without any case law in support of his argument, the defendant simply equates the procedure employed in the matter at hand with that of a traditional show-up. However, a "show-up" was not employed here, and the Court has not found any case law supporting the defendant's "recognition" theory. Having reviewed the record and the applicable law, the Court finds Lang's position here to be without merit.
As set forth earlier, the case law is well-settled that photo line-ups are not per se impermissibly suggestive, Simmons, 390 U.S. at 384-85, and that, in determining whether the procedure meets the standard regarding suggestiveness, only the picture line-up itself and the facts surrounding its presentation must be evaluated. Kimbrough, 481 F.2d at 424 and n. 6. Like the photo arrays presented to the Mansours, the photo arrays presented to Josh Katz, Kay Mary and Madison Mary were preserved and admitted during the hearing. See Photographic Line-up (Gov't Ex. 5). Based on its review of these arrays, the Court concludes that the composition of the line-ups was not suggestive and that the defendant's photograph was not placed with grossly dissimilar individuals, in terms of age, race, or other distinguishing features. Further, the undisputed facts do not support any argument that the overall presentation of the photographic line-up to these three witnesses was unduly suggestive. As set forth in the report and as established at the hearing, each witness viewed the photographs in separate rooms at separate times (albeit within minutes of one another). Also, the defendant has not presented any evidence that any attempt was made to influence Kay Mary, Madison Mary or Josh Katz in the identification process.
Even if the Court was to find that the procedure employed was impermissibly suggestive, the Court finds that the identifications made by Josh Katz, Kay Mary and Madison Mary are otherwise reliable under the Biggers factors. In the instant matter, prior to being ordered to lay face down on the floor of the house, Mr. Katz saw the three perpetrators approaching him, Kay Mary and Madison Mary, at which time Kay and Madison Mary entered the house, leaving Mr. Katz with the three men outside. Incident Report, p. 6. Kay and Madison Mary then opened the door when ordered to do so, at which time "Perpetrator #1" and "Perpetrator #2" entered the house behind Mr. Katz. Id. "Perpetrator #3" remained outside on "lookout." Id. at pp. 6-7. All three victims were then forced to lay face down on the floor. Id. at p. 6. All three witnesses described Perpetrator #1 as a "black male, approximately 5'10" tell, weighing approximately 140 lbs., possibly 16 years old, with a thin build, soft voice, clean shaven and wearing a white headband on the tope of braided hair." Id. at p. 8. "Perpetrator #2" was described as a "black male, approximately 6'1" tall, weighing approximately 170 lbs., with a stocky, muscular build." Id. None of the witnesses was able to describe "Perpetrator #3." Id.
While the descriptions given by the three victims are stated in general terms, the Court finds that, based on the totality of the circumstances, the procedure does not pose "a very substantial likelihood of irreparable misidentification." Honer, 225 F.3d at 553. In the instant matter, the circumstances demonstrate that, while not of a great duration, the victims' contact with two of the perpetrators was within close proximity; the defendant has not demonstrated that the descriptions given, while general, were not accurate; all three witnesses immediately identified Mr. Lang as one of the individuals who robbed them at gunpoint; and the length of time between the incident and the photographic line-up was minimal — less than four days — and significantly shorter than the seven month gap addressed in Biggers.
B. In-Court Identifications
Because the Court finds that none of the pre-trial identifications outlined above result from unnecessarily suggestive identification procedures conducive to mistaken identification, the Court also finds that the defendant is not entitled to the relief sought in his motion, insofar as Lang has moved the Court to suppress any and all out-of-court identification by the above-named witnesses and to prohibit the government from eliciting any in-court identification by said witnesses.
III. Conclusion
For all the foregoing reasons, IT IS ORDERED that the Motion to Suppress Identification Testimony, filed by defendant Lovelle Lang, is DENIED. During the trial of this matter, the Court will allow counsel for the defendant latitude in cross-examining the witnesses regarding the basis of and circumstances surrounding their pre-trial identifications of the defendant.