As seen in Voice for the Defense on line

Like more than a few of my court-appointed felony clients, Julius was angry, offensive, demanding, and adamantly refused any plea deal. He was 43 years old but looked 60, African-American, unemployed, short, stocky, dark-skinned with very short black hair. Julius was a career felon who was bad at his job. He sat in jail on the charge of attempted burglary of a habitation. He allegedly kicked in the door of a home he may have thought was unoccupied, but ran away without entering when he discovered that someone was indeed at home. He could not make bond because he had a blue warrant for violating his parole. He was on parole for burglary of a habitation, and had four prior convictions for—you guessed it—burglary of a habitation. He told me he did not do it. He yelled at me when I tried to discuss the evidence with him. He insisted he was not guilty.

THE OFFER

The prosecutor’s offer was 9 years TDC. Not much of an offer, you might say? I agree. But of course, she threatened to use the prior convictions to enhance it and then stack it. He rejected the offer and demanded a trial.

WITNESS

The witness was a 15-year-old boy, Drew, enrolled in the sixth grade, and at home alone on a school day at the time of the alleged break-in. Just a few red flags popped up. The questions ask themselves, right?

FACTS

Drew called 911. I completed a records request for the 911 call. Drew reported that he had been asleep at home around 10:00 a.m. when someone began banging on the front door. He took his time responding. When he got to the door it flew open and then back, and the man ran off when he saw Drew. Drew said he saw a heavyset, bald, 30–40ish black man with dark skin, standing about 5’7”, wearing blue pants and an orange shirt, no hat, no eyeglasses, no facial hair. Drew did not see the shoes. One might say that was a surprisingly detailed description, right? When police arrived they observed a shoe print on the badly damaged front door, which obviously had been kicked in. They took photos of the print and later tried to match it up with my client’s shoe. When that did not work in their favor, they said the shoe print was too partial to make a match.

Meanwhile, police were also searching the neighborhood for a suspect matching the 911 dispatcher’s description. The police stopped Julius, who was walking a few blocks over from the home. Julius was wearing a white shirt and dark pants but no jacket. We requested the booking photo, which showed Julius was not bald but had very short black hair. The police would later testify that Julius was the first black man they stopped and the only black man they saw walking in the neighborhood. He did not run from the police, and he produced ID. He carried a wallet, watch, key, and cell phone. He told officers he was going home. Julius was detained in a motel parking lot and allowed officers to pat him down, but he was agitated, angry, and mouthy.

Drew clearly told the 911 dispatcher that the suspect was wearing an orange “shirt.” He said it twice. But somehow the shirt morphed into an orange “jacket” when the police wrote up their reports. The police noted that it was 50 degrees on a January morning. When asked why he was not wearing a jacket, Julius told police he did not need one. The police did not agree. The police concluded that Julius must have ditched his orange jacket on the run, so they searched the neighborhood. They found a red, black, and white jacket, and red New York Yankees baseball hat sticking out of a drainage culvert up the road. The police decided that was the jacket the suspect must have been wearing.

The police put Drew in the back of a patrol car and drove him over to the parking lot to conduct a show-up identification of the suspect. My client was the only handcuffed black man surrounded by four or five white police officers in the parking lot. The police actually conducted a drive-by show-up. They drove Drew slowly past Julius, but they did not stop the patrol car. One officer held up the red, white, and black jacket next to Julius while Drew was driven past him. Drew immediately identified Julius as the person who kicked in the door of their home.

According to the police report, Julius “kept pronouncing his innocence” and “protesting his innocence,” but Julius refused to waive his rights and make a statement—so he must be guilty.

The police recorded their interview with Drew at the police department. He did not appear, look, or sound disabled or mentally retarded. We learned he was also in alternative school and had skipped school that day. Drew told the police that he was “face to face” with the guy who kicked in the door. The police then asked him a leading question: “Was it a red coat or orange?” Drew answered: “It looked orange to me, but it turned out red.” He wrote a statement in which he now described the suspect as wearing a “bright orange coat.” This differed from what he told the 911 dispatcher. Drew wrote down, “They took me to the hotel and showed me him and his jacket and that was him.”

While the police were out of the room, Drew told his mom that he was scared when he heard the banging at the door because he thought it was Mr.______, and he thought “they were coming to get me.” His mom understood what he was referring to, but we had no idea.

During the recorded interview, Drew’s mother, Diane, calls her father, Donald, and tells him to come down to the police station to see if it is the same guy he had seen loitering outside the home a few weeks ago. Diane tells the police officer that her dad can pick the guy out of a photo lineup. The police arrange a photo lineup for Donald. We later learned that Donald had served as a police officer in the same department for 20 years and retired. The photo lineup, results, and interview with Donald were not in the discovery I received. The prosecutor told me she did not have it.

Did I ask the prosecutor why Drew, a 15-year–old, was enrolled in sixth grade? Yes, and she did not know.

I did meet with the prosecutor to discuss the conflicts and contradictions in the statements and evidence. Did the facts seem to cry out for a dismissal? I certainly thought so. She was unmoved—take it to trial and risk an enhanced, stacked sentence or take the deal.

THE SHOW-UP

Drew’s out-of-court identification of my client did not pass the smell test with me, and it was the linchpin to the state’s case. Other lawyers and case law tended to support the opinion that the show-up ID would survive my challenge on a motion to suppress. While my client had nothing to lose, I wanted to be certain that my motion had a valid legal and good-faith basis.

CASE LAW

I almost always start my research in The Texas Criminal Lawyers Handbook, and this case was no exception. I have found it to be an invaluable tool over the years. The Handbook is authored by Robert K. Gill and Mark G. Daniel. I have heard Mark speak at many a worthwhile TCDLA seminar.

Of course, when challenging the show-up ID, the first question is, Who has the burden of proof?

The defendant has the burden to show the identification is unreliable by clear and convincing evidence. Delk v. State, 855 S.W.2d 700 (Tex. Crim. App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993); Bond v. State, 29 S.W.3d 169 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

If the defendant meets this burden, then the in-court identification is inadmissible unless the state can prove by clear and convincing evidence that the identification was of independent origin. Brown v. State, 64 S.W.3d 94 (Tex. App.—Austin 2001, no pet.); United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000). The test is whether, considering the totality of the circumstances, the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Id., citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Lo­serth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998).

The Court of Criminal Appeals has identified “five non-exclusive factors” that can be used to assess the reliability of an identification procedure: (1) the opportunity of the wit­ness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Loserth v. State, supra citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

When applying those factors to our case, the prosecutor could argue that Drew was paying serious attention to the person who had been banging on the door of his home and then kicked it in, had sufficient time to view him, made a fairly detailed description, was certain it was my client, and less than a half-hour lapsed between the incident and the identification. Unfortunately, the police officers mangled Drew’s detailed description to match their conclusion that Julius had to be the culprit.

As we all know, appellate courts love to throw in a “bal­ancing test.” The Houston appellate court concluded that some suggestiveness is always present in a show-up identification but must be balanced against: (1) the desirability of allowing the witness to view the suspect immediately after the commission of the offense while his memory is fresh and accurate; (2) the fact that the quick confirmation or denial of identification leads to the release of innocent suspects (but not in my client’s case); and (3) the fact that the release of innocent suspects frees the police to continue the search for the perpetrator of the offense (ditto). Louis v. State, 825 S.W.2d 752 (Tex. App.—Houston [14th Dist.] 1992, pet.ref’d).

And then there is the time-worn favorite “totality of circumstances” analysis using the following factors: (1) the opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness’ level of certainty; and (5) the time between the crime and the confrontation. Id.

And finally, there is always the Texas “two-step” analysis used to determine the admissibility of an in-court identification: (1) whether the identification procedure was impermissibly suggestive; and (2) if the identification was the result of a suggestive procedure, whether or not it gives rise to a very substantial likelihood of irreparable misidentification, examining the totality of the circumstances. Delk v. State, supra.

PRETRIAL MOTIONS

When viewing the facts in light of the case law analysis, I felt we had a shot. So I filed a plain vanilla Motion to Suppress Identification and a Motion to Suppress Evidence Obtained by Illegal Detention and/or Illegal Arrest of the Defendant. The odds on a district judge granting a suppression motion and letting a career offender walk are slim to none, but we had nothing to lose. As is often preached at TCDLA seminars, pretrial hearings offer the opportunity for additional discovery—and the witnesses’ answers can be used against them at trial.

THE HEARING

Despite my best efforts, I could not discover why 15-year-old Drew was still in the sixth grade, so I issued a subpoena duces tecum for school records to be brought to the hearing. The responding school official told me that Drew had serious disciplinary problems for fighting with other students, banging his fists on desks and walls, and violated his probation multiple times with positive UAs and refusing to attend class. Drew liked to smoke weed. Drew was not retarded. Drew was an unrepentant truant of average intelligence. He was in alternative school and would age out of the school system at age 18.

The prosecutor and I were both surprised when Drew showed up to the hearing in orange scrubs and shackles. He had been transported from the juvenile detention facility. His mom, Diane, and grandfather, Donald, were not happy with me because they believed I was forcing him to testify.

I had subpoenaed almost every officer who wrote a report in the case. The shift supervisor was not happy with me. She was there too. My paralegal overheard the supervisor complaining: “She’s court-appointed. Why is she doing this?”

I did issue a subpoena duces tecum to the officer who presented the photo array to Donald. I had not received a copy of the photo-array or report. During the police interview, Donald verified that just a couple of weeks earlier he had seen a black man standing outside the front door of Drew’s house. When Donald approached the man, he claimed he had the wrong house and left. Donald believed that the man was casing the house for a break-in. Donald did not identify my client in the photo array. In fact, he identified someone else.

The prosecutor asked me if she could take Drew on direct examination and I agreed. She spoke to Drew very carefully and very slowly—as if he were retarded. She navigated him through the events of that day. She tried to reconcile a red, white, and black jacket with an orange shirt. She sought to characterize the red in the jacket as tomato red because apparently tomato red is the new orange. She sought to show that though Drew may have had enough time to see the person at the door, he may have missed the other colors in his jacket. The hat could have been in his pocket.

By the way, Drew was slow to answer the door because he was afraid that it was the truancy officer. He did not want to return to juvenile detention.

Finally, the prosecutor asked him if the person he saw at the door was in the courtroom.

His answer: “No.”

I was very busy writing but stopped as his answer registered. I looked up at the judge. She looked at me. We looked at Drew then at the prosecutor then at the courtroom deputies.

It was a long pause.

The prosecutor repeated her question.

He repeated his answer.

The prosecutor informed the court that she would not ask Drew to make an in-court identification. After additional testimony from police officers, the judge denied my motion to suppress the evidence obtained by illegal detention or arrest.

After the hearing, the prosecutor informed me that she was going to send the hat and coat to the DPS lab for DNA analysis. If it came back with my client’s DNA, she would enhance and not waive a trial. I told her that I had already warned my client that she would do just that. In fact, I had anticipated that the prosecutor would threaten to take that action. I did warn my client prior to the hearing, and he still rejected the plea offer. He insisted he had not worn the jacket or hat—they were not his.

The DPS lab did not obtain any DNA samples from the hat or coat.

The prosecutor filed her dismissal.