Opinion
Criminal No. 03-306 (JRT/FLN)
May 28, 2004
Lisa A. Biersay, Minneapolis, MN, for plaintiff
Kurt B. Glaser, SMITH GLASER, Minneapolis, MN, for defendant
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTATE JUDGE
Defendant Scott Lee Haynes moves to suppress an identification obtained via a photo spread. United States Magistrate Judge Franklin L. Noel recommended that the defendant's motion be denied. Defendant objects to the Report and Recommendation ("RR"), arguing that the Magistrate Judge used an improper factual basis to judge the reliability of the victim's identification, and used an improper factual basis to weigh any corrupting effect of the victim's identification of the defendant.
The Court has conducted a de nova review of the defendant's objection pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and denies defendant's motion to suppress.
BACKGROUND
On August 6, 2003, a man broke into K.N.'s secluded home. At the time of the break-in, K.N. was home, along with her three young children. The man appeared at the door of the children's bedroom holding a shotgun; his head, nose and mouth were covered. He asked for money or firearms, and forced K.N. to accompany him as he searched the house. The man also bound K.N. with electrical cords. As K.N. was looking at the man in an attempt to remember his face so that she could identify him later, he told her to stop staring at him.
K.N. telephoned law enforcement, and Sergeant David Stensrud of the Rice County Sheriff's Office responded to the call. K.N. described the suspect to Sgt. Stensrud, and provided a detailed description of the man's clothing. She also described the man as in his late thirties or early forties, of average weight, and a height of 5'8" to 5'10". She reported he had an accent she could not identify, and had a darker complexion, and was possibly Hispanic. She also described the gun the man was carrying, and noted that he also carried a small pair of binoculars.
The day after the break-in, K.N. viewed a photographic line up at the Sheriff's Department. Sgt. Stensrud conducted and oversaw the process. The photo lineup was of six individuals, none of whom were Hispanic. All the individuals resembled defendant, but defendant was the only one in an orange shirt. In addition, the defendant's face is smaller in the picture, he is injured, and the lighting in the picture is different.
Sgt. Stensrud presented K.N. with written instructions; she was shown six photographs and told that the suspect may or may not be in the pictures. After looking at the photos for several minutes, K.N. asked for two pieces of paper, and placed the papers so as to expose only the eye area. K.N. was not prompted to cover parts of the photos. K.N. identified the individual in photo number one, and stated that his eyes looked similar to the eyes of the man who had been in her house. K.N. marked photo number one on the directions sheet accompanying the photo spread, and in the comments section noted that the individual "looks similar to the person that was in the home." The comment was written by an officer, because K.N. was too distraught to write anything. Sgt. Stensrud testified that the officer wrote the comment verbatim.
ANALYSIS
Defendant agrees with the legal standards set forth in the RR. The Constitution prohibits identification testimony that is derived from impermissibly suggestive procedures that might lead to an irreparably mistaken identification. Neil v. Biggers, 409 U.S. 188, 198 (1972). The parties also agree with the Magistrate Judge's explanation of the well-established "two-step" inquiry. "The first step is to determine whether the challenged confrontation between the witness and the suspect was `impermissibly suggestive.'" Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir. 1984) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). If so, the inquiry turns to "whether, under the totality of the circumstances of the case, the suggestive confrontation created `a very substantial likelihood of irreparable misidentification.'" Id. (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)); see also United States v. Henderson, 719 F.2d 934, 936 (8th Cir. 1983). "Pared to its essence, the second inquiry is whether the identification is reliable." Graham, 728 F.2d at 1541.
The Magistrate Judge assumed that the first step was satisfied — that is, he assumed that the identification was unnecessarily suggestive. This Court will make that same assumption. However, even if the first step favors excluding the identification, the identification may be admissible if the identification is reliable. Clark v. Caspari, 274 F.3d 507, 511 (8th Cir. 2002) (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). An identification violates the Constitution only where there is a "very substantial likelihood of irreparable misidentification." Manson, 432 U.S. at 114.
To assess whether there is a very substantial likelihood of irreparable misidentification, the Court is to look to the totality of the circumstances. This inquiry includes several factors, as accurately listed in the RR. Factors include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200.
Applying these factors, there is not a "very substantial likelihood of irreparable misidentification." Manson, 432 U.S. at 114. First, the witness had ample opportunity to view the intruder. He forced her to accompany him around the house, and the witness stared at the man in an attempt to memorize his face. She also stared at him while he restrained her with electrical cords. This amount of time is adequate to provide indicia of reliability. See, e.g., Harris v. Wyrick, 644 F.2d 710, 712 (8th Cir. 1981) (witness saw perpetrator for one to two minutes in a well-lit room). The witness had a high degree of specificity in her description of the intruder's clothing, his gun, and other details. This degree of detail also supports a finding of adequate reliability.
Defendant suggests that the fact that he was the only individual in orange adds to the unreliability of the photo spread. However, it is not the case that the individuals in all the other photos wore the same color, and this fact is insufficient to render the identification inadmissible. See, e.g., United States v. Triplett, 104 F.3d 1074, 1080 n. 2 (8th Cir. 1997) (rejecting argument that defendant's brightly colored, loud, Hawaiian-type print shirt impermissibly tainted the identification where the others in line up wore solid color shirts); Bivens v. Wyrick, 640 F.2d 179, 181 (8th Cir. 1981) (noting that suspect was the shortest in stature, but nonetheless finding the identification sufficiently reliable); United States v. Alden, 576 F.2d 772, 778 (8th Cir. 1978) (rejecting argument that the line-up was suggestive because defendant was the only participant with very curly hair, and that he appeared distinctly more unkempt than the other line-up subjects because he was not allowed to wash, shave, change clothes, or comb his hair prior to the line-up).
The witness was also adequately certain in her identification of the defendant. She told officers that the photo looked similar to the man who had been in her house, and specifically mentioned that his eyes looked similar. Her focus on the specific feature of the man's face she was able to see evidences reliability. In addition, her accuracy in describing his clothing, firearm, and binoculars adds to the overall reliability. United States v. Jackson, — F.3d —, 2004 WL 875724 *3 (8th Cir. April 26, 2004) (fact that witness was "correctly described what both men were wearing before they were apprehended" added to reliability). The witness indicated in her initial description that the man was white, and had a darker complexion — "possibly Hispanic" — but also noted that he had an accent that she could not place. Although defendant is not Hispanic, this inconsistency is insufficient to render the identification inadmissible. The witness was not certain that the man was Hispanic — only that he had a darker complexion. This factor properly goes to the weight of the testimony, not the admissibility of the identification. Dodd v Nix, 48 F.3 1071, 1074-75 (8th Cir. 1995).
Finally, the length of time between the event and the identification supports admission of the evidence. The witness made the identification only one day after the event. See, e.g., United States v. Sanders, 626 F.2d 1288, 1289-90 (8th Cir. 1980) (affirming admission of identification made three months after robbery); United States v. Alden, 576 F.2d 772, 778 (8th Cir. 1978) (two to nine months between the robberies and the line-up insufficient to render identification inadmissible).
Defendant also objects that the Magistrate Judge failed to weigh any corrupting effect of the victim's identification of the defendant. In fact the Magistrate Judge discussed the possible corrupting effect of the identification in the final paragraph of his report and recommendation. The Magistrate Judge concluded, and this Court agrees, that the identification was reliable. The witness herself mitigated any possible corrupting effect of the differences in the photos by independently covering up those portions of the photos that did not reflect what she saw during the break-in. For the above reasons, the totality of the circumstances supports the Magistrate Judge's conclusion that the defendant's due process rights were not violated.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES the defendant's objections [Docket No. 36] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 35]. Accordingly, IT IS HEREBY ORDERED that defendant's motion to suppress evidence of the identification [Docket No. 31] is DENIED.