Opinion
Docket No.: CR17-2837 Docket No.: CR18-930
02-08-2019
Re: Commonwealth of Virginia v. Deonta Lamar Jordan
Gregory B. Turpin, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Katherine D. Currin, Esquire Morris, Crawford & Currin, P.C. 101 Northfield Street, Suite B Chesapeake, VA 23320
Gregory B. Turpin, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Katherine D. Currin, Esquire
Morris, Crawford & Currin, P.C.
101 Northfield Street, Suite B
Chesapeake, VA 23320 Dear Counsel:
Today the Court rules on the motion for reconsideration of the Court's suppression of Jordan's out-of-court identification filed by the Commonwealth and the motion to suppress filed by Defendant Deonta Lamar Jordan, in which he seeks to suppress the in-court identification of Jordan, any future in-court identifications of Jordan and, as fruit of the poisonous tree, any post-arrest evidence collected that involves Jordan.
The Court previously suppressed an out-of-court identification of Jordan, which resulted from a "show-up" identification of Jordan at the crime scene. The issues before the Court are (1) whether suppression of the out-of-court identification requires suppression of subsequent in-court identifications; (2) whether, in light of the suppression of the out-of-court identification, probable cause existed to arrest Jordan; and (3) if probable cause did not exist to arrest Jordan absent the out-of-court identification, whether the post-arrest gunshot residue test and jail telephone call contents should be suppressed. The Court finds that (1) because the in-court identifications have independent identification bases, they need not be suppressed; (2) probable cause existed without the show-up identification; and (3) because probable cause for Jordan's arrest existed absent the show-up identification, the gunshot residue test and jail telephone call contents need not be suppressed.
The Court DENIES the Commonwealth's motion for reconsideration. Additionally, based on the totality of the circumstances, the Court DENIES Jordan's motion to suppress the in-court identification, any future in-court identifications, and any post-arrest evidence related to Jordan.
Background
It is undisputed that, during the late hours of October 8, 2017, Bruce Bell and Montrolius Knight were delivering fast food to 812 Ashlawn Drive in the City of the Norfolk. (Tr. 8.) Bell exited the vehicle while talking on his cellphone to make the delivery while parked in a partially lighted apartment complex parking lot and was approached by three masked men. (Tr. 8, 21-22, 30-31.) Two of the men, one with a baseball bat and the other with a sawed-off shotgun, confronted Bell, and the man with the sawed-off shotgun took his cellphone. (Tr. 31-32.) The man with the bat struck Bell on his forehead and instructed him to get on the ground, which Bell did. (Tr. 32.) The two then went over to the vehicle and extracted Knight, hit him on the head with the bat, and ordered him to the ground about ten feet from Bell. (Tr. 33.) Some of the perpetrators went through Knight's pockets. (Id.) At some point, Bell stood and attempted to run away, whereupon he was shot by the individual with the shotgun. (Id.) Due to the light-weight birdshot and Bell's "protective" clothing, Bell was able to continue running despite being shot. (Tr. 9.) Bell was then tackled by the man with the shotgun. (Tr. 33-34.) A police car then arrived at the scene, and the car's headlights illuminated the area. (Tr. 34.) The three perpetrators immediately fled the scene. (Id.)
Bell told law enforcement that the three perpetrators were black males and went on to describe the two who were closer to him in more detail. (Tr. 31.) The one with the shotgun reportedly was 5'10", about 170 to 180 pounds, and wearing a light-colored hoodie and something like a red-colored bandana partially covering his face. (Id.) The one with the bat had dark skin and was between 6'0" and 6'2", 180 to 200 pounds, and wearing a light gray hoodie with the hood up. (Tr. 32.)
Law enforcement had received 911 calls regarding a suspicious situation involving some men near a car that evolved into a robbery. (Tr. 45.) The initial call may have been before the robbery occurred. (Id.) The initial responding officer remained at the scene while a second officer, Officer Zachary Cutts of the Norfolk Police Department, left to look for suspects. (Tr. 46.) Minutes later, Officer Cutts stopped two black males who were "walking at a fairly brisk pace" about a block from the scene of the attempted robbery and in a direction away from the crime scene. (Tr. 48.) One of the individuals, the defendant, was "profusely sweating" to the point that "it looked like he had just dunked his head in a bucket of water." (Tr. 49.) Officer Cutts took Jordan into custody. (Tr. 50.) Jordan was initially suspected to have an outstanding arrest warrant, which ultimately proved to no longer be active. (Tr. 5.) Officer Cutts testified that Jordan matched the provided description of "an approximately six foot tall, black male wearing light colored clothes and had a red hoodie." (Tr. 51.)
At Jordan's preliminary hearing, Officer Cutts testified that when he approached Jordan, Jordan was "sweating profusely" and "absolutely drenched" despite it being cool that night. (Def.'s Ex. 1, at 28.)
It is not clear whether the "red hoodie" was a reference to the "red-colored bandana" or something else.
In preparation for a show-up, Bell completed an admonishment form. (Tr. 27.) Detective Tammy Mendoza of the Norfolk Police Department read the form aloud, verbatim, and then had Bell sign and date it. (Tr. 29.) Officer Cutts transported Jordan in his patrol car about one block back to the scene of the robbery, where Bell was waiting with Detective Mendoza. (Tr. 52-53.) Jordan, who was handcuffed, stepped out of the vehicle and stood about twenty feet from Bell. (Tr. 19.) In addition to the light from the partially lit parking lot, Jordan was illuminated by a patrol car spotlight. (Tr. 20-21.) Jordan was instructed to face forward—toward the spotlight—then sideways, and then forward again. (Tr. 17-18.) After less than a minute, Bell stated, "[this] is the gentleman who had the bat," and that he recognized the light gray clothing. (Tr. 23, 37.)
After his arrest, Jordan apparently was tested for gunshot residue. (Def.'s Br. Supp. Mot. Suppress 5.) Additionally, while in the Norfolk City Jail being held on the instant charges, he supposedly made some potentially incriminating telephone calls. (Id.)
Bell subsequently identified Jordan as one of the perpetrators during Jordan's preliminary hearing. (Def.'s Ex. 1, at 15-16). At that hearing, Bell testified that Jordan was the assailant who had the sawed-off shotgun, that he was wearing all grey, and that he recognized Jordan at the show-up based on his clothing and "his eyes," which he could see despite a bandana covering part of his face. (Id. at 15.) Officer Cutts testified that when he approached Jordan, Jordan was "sweating profusely" and "was absolutely drenched" despite it being cool that night. (Id. at 28.)
This is inconsistent with Bell's on-scene statement, where he indicated that Jordan was the assailant armed with the baseball bat.
Jordan filed a motion to suppress Bell's show-up identification, and the Court held a related hearing. At the conclusion of the hearing, the Court applied the factors in Neil v. Biggers and found as follows: (1) Bell's opportunity to view Jordan was brief due to Bell's initial distraction while engaged in a telephone call, Bell being hit in the head by a baseball bat almost immediately upon being confronted, the confrontation being short, and Bell's focus on finding an escape route; (2) Bell's degree of attention on Jordan during the incident was limited due to Bell's initial concern with determining his location, the high stress of the situation, likely "weapon focus," and Bell's attention toward escaping; (3) Bell's description of his assailant prior to the show-up was vague due to the perpetrator's face being partially concealed by a bandana, no mention of distinguishing features, and only a nondescript clothing description; (4) Bell did not articulate any level of certainty when identifying Jordan; and (5) the length of time between the crime and the show-up supported Bell having a fresh observation. The Court also noted that it was concerned that law enforcement could have pursued less suggestive means of identification and with the failure by law enforcement to inform Bell that Jordan had a red hoodie stuffed in his pants, arguably conforming Jordan's appearance at the show-up to Bell's prior description of his assailant. Based on the totality of the circumstances, the Court suppressed the out-of-court identification of Jordan.
Jordan subsequently filed a motion to suppress any in-court identifications and any post-arrest evidence, and the Court held an associated hearing. At the conclusion of that hearing, the Court took the matter under advisement and granted the parties leave to file post-hearing briefs.
The parties elected not to present any additional evidence, instead agreeing to rely on the evidence presented at the preliminary hearing and the initial suppression hearing.
In its post-hearing brief, the Commonwealth for the first time moved for reconsideration of the Court's previous ruling, in which it suppressed Bell's out-of-court identification of Jordan. The motion raises no new arguments and, based on a review of the related hearing transcript and exhibits, as well as relevant case law, the Court DENIES the motion for reconsideration.
Position of the Parties
Jordan's Position
Jordan contends that the law governing in-court identifications following an unconstitutional out-of-court identification is the same as that governing the constitutionality of an initial out-of-court identification. (Def.'s Br. Supp. Mot. Suppress 2.) Specifically, Jordan claims that Bell's in-court identification, as well as any subsequent in-court identifications, are even more unreliable than the already suppressed out-of-court identification. (Id. at 3.) Based on the factors in Neil v. Biggers—which are used to determine the constitutionality of a show-up identification—Jordan argues that there is a substantial likelihood that Bell will provide an "irreparable misidentification." (Id. (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972).) Jordan notes that the Court has already considered the Biggers factors as they apply to Bell's out-of-court identification and determined that only one of the five factors—the length of time between the crime and the confrontation—weighed against suppression. (Id.) Jordan asserts that there is no plausible argument that the time factor weighs more heavily against suppression with respect to the in-court identification; rather, the additional time delay more heavily supports suppression. (Id.) Jordan also asserts that any differences between Bell's out-of-court and in-court descriptions of Jordan "seem to prove that Mr. Bell's memory has faded." (Id.)
In addition, Jordan contends that, absent the unconstitutional show-up, probable cause to arrest him did not exist. (Id. at 5.) Jordan argues that the post-arrest gunshot residue test and any evidence related to phone calls he made from the jail therefore were obtained only as a result of the unlawful arrest and should be suppressed as fruit of the poisonous tree. (Id.)
The Commonwealth's Position
The Commonwealth argues that Bell's in-court identification is admissible because it was an independent identification of Jordan that did not rely on Bell's previous out-of-court identification. (Commonwealth's Br. Opp'n Mot. Suppress 13.) The Commonwealth notes that any differences between Bell's description of Jordan on the night of the offense and his description at the preliminary hearing indicate that Bell was rendering an independent judgment at the preliminary hearing and not simply repeating verbatim the statement he made to police on the night of the offense. (Id.)
The Commonwealth also argues that probable cause for Jordan's arrest existed without the show-up identification. (Id. at 14.) It points out that Jordan matched the general description of the suspects' race, sex, build, and clothing and that Jordan was found briskly walking and sweating profusely only one block from the scene of the robbery while walking away from the crime scene. (Id.) The Commonwealth contends that just because law enforcement conducted additional investigation, i.e., the show-up, before formally arresting Jordan, this does not mean that probable cause did not exist to arrest Jordan absent the show-up identification. (Id.)
Analysis
Legal Standard
A defendant seeking to suppress evidence bears the burden of proving factual circumstances giving rise to a reasonable expectation of privacy, which is the burden of persuasion. Testa v. Commonwealth, 55 Va. App. 275, 282 n.3, 685 S.E.2d 213, 216 n.3 (2009). In response, the Commonwealth has the burden to prove admissibility of the seized evidence by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986).
An identification procedure may be so unnecessarily suggestive and prone to misidentification that the accused is denied due process of law. Stovall v. Denno, 388 U.S. 293, 302 (1967). When challenged, an out-of-court identification is only admissible if: "(1) the identification was not unduly suggestive; or (2) the procedure was unduly suggestive, but the identification was so reliable that there is no substantial likelihood of misidentification." Charity v. Commonwealth, 24 Va. App. 258, 262, 482 S.E.2d 59, 60 (1997).
"Show-up identifications are not per se violative of constitutional rights, and such identifications will not be declared invalid unless a review of the totality of the circumstances shows a substantial likelihood of misidentification." Dance v. Commonwealth, 32 Va. App. 466, 472, 528 S.E.2d 723, 727 (2000) (internal citation omitted). Nevertheless, "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." Stovall, 388 U.S. at 302.
"[T]he factors to be considered in evaluating the likelihood of misidentification 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." Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
"[E]ven if evidence of [an] out-of-court identification cannot be admitted, an in-court identification may still be made if the origin of that identification is independent of the inadmissible out-of-court identification procedure." Hill v. Commonwealth, 2 Va. App. 683, 693, 347 S.E.2d 913, 918 (1986).
Probable cause for a warrantless arrest "exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed." Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E. 2d 833, 836 (1981). "To determine whether an officer had probable cause to arrest an individual, [courts] examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable officer, amount to' probable cause." Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).
Discussion
The Court has considered the pleadings, evidence and oral argument presented at the related hearings, and applicable authorities. The Court now rules as follows.
1. The In-Court Identification and Any Future In-Court Identifications Are Not Tainted by the Out-of-Court Identification.
Jordan contends that any in-court identifications of Jordan are based solely on the unconstitutional show-up identification, are therefore unreliable, and have a high probability of producing "irreparable misidentifications." The Court disagrees.
As an initial matter, the Court notes that there are differences between Bell's out-of-court and in-court descriptions of Jordan. Jordan attributes these differences to Bell's faded memory, while the Commonwealth asserts that they are indicative of Bell's independent basis for his in-court identification. Specifically, Bell testified at the preliminary hearing that his recognition of Jordan on the night of the robbery was based on—in addition to his clothing—his eyes, something he did not mention at the scene. Additionally, Bell's testimony at the preliminary hearing regarding the role that Jordan played in the robbery differed from what he told law enforcement immediately after the robbery.
Of note, it does not appear that Detective Mendoza asked Bell during the show-up on what his positive identification of Jordan was based.
Jordan is, of course, free to cross-examine Bell at trial regarding any inconsistencies.
The Court finds the Virginia Court of Appeals' opinion in Curtis v. Commonwealth instructive. 11 Va. App. 28, 396 S.E.2d 386 (1990). In Curtis, the court held that although the victim's out-of-court identification of the defendant based on a single-photograph lineup was inadmissible because the victim was initially unable to make a positive identification when he viewed the photograph—despite reporting to law enforcement later that day that the photograph resembled the defendant—the victim's in-court identification nevertheless was admissible because the court found no similar evidence of uncertainty. Curtis, 11 Va. App. at 32-33, 396 S.E.2d at 389. The court found that the victim's "in-court identification was based entirely upon his observations at the time of the [crime] and that the photograph of the defendant was not the source of the identification." Id. at 33, 396 S.E.2d at 389.
The facts in Curtis are similar in many respects to those in the instant case. Both victims were presented with a single suspect to identify as the assailant. Both failed to express a specific level of certainty during their out-of-court identifications, which were suppressed. The victim in Curtis testified that his in-court identification of the defendant was not based on the photograph, but rather was based on his observation of the defendant at the time of the crime. Similarly, Bell's testimony at the preliminary hearing was that he observed Jordan's eyes at the time of the robbery as those of one of his attackers. Furthermore, Bell identified Jordan as his assailant with certainty when he saw him at the preliminary hearing. Bell's testimony indicates that his in-court identification of Jordan was based on his observations at the time of robbery and not merely as a result of the show-up.
Based on the totality of the circumstances, the Court finds that Bell's in-court identification of Jordan had the necessary indicia of independence and reliability to permit its introduction into evidence. The Court further finds that any future in-court identifications are not tainted by the show-up identification.
2. The Evidence Obtained After Jordan's Arrest Is Not Fruit of the Poisonous Tree Resulting from an Improper Arrest.
Jordan asserts that probable cause to arrest him did not exist absent the unconstitutional show-up identification. The Court disagrees.
The question before the Court is whether, at the time Officer Cutts detained Jordan, the facts and circumstances were such that an objectively reasonable officer would believe that a criminal offense had been or was being committed. Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E. 2d 833, 836 (1981). It is the Commonwealth's burden to prove—by a preponderance of the evidence—the admissibility of the evidence Jordan seeks to suppress. Colorado v. Connelly, 479 U.S. 157, 168 (1986).
The Court finds that law enforcement had probable cause to arrest Jordan even without the show-up identification. In response to 911 calls involving a robbery in the Ashlawn Drive vicinity of Norfolk, Officer Cutts went to the scene, obtained a description of the suspects from Bell, and was informed that the three perpetrators ran from the scene of the crime. Based on the description of the suspects, he searched for three black males who were approximately 5'10" to 6'2" tall, weighed between 170 and 200 pounds, and were wearing gray or black clothing.
Officer Cutts proceeded to fan out from the location of the incident and search for the suspects. Approximately one block from the scene of the robbery, he encountered Jordan and another individual walking at a brisk pace. Officer Cutts also observed that Jordan was a black male, was approximately the same height as the described attackers, was wearing gray clothing, was sweating profusely despite the cool weather, and had a red shirt stuffed in his pants.
Hence, even without the out-of-court identification, the following information supported probable cause to arrest Jordan and conduct a post-arrest gunshot residue test: (1) he was a black male; (2) he was between 5'10" and 6'2" tall; (3) he appeared to weigh between 170 and 200 pounds; (4) he was wearing gray clothing; (5) shortly after the robbery, he was walking at a brisk pace approximately one block from the scene of the robbery in a direction away from the crime scene; (6) he was sweating profusely despite the cool weather, a reasonable indication of nervousness; and (7) he inexplicably had a red shirt stuffed in his pants.
Additionally, the Court does not accept Jordan's premise that suppression of the out-of-court identification precludes Bell's on-scene positive identification of Jordan from being considered as part of the probable-cause analysis. Although the factfinder cannot consider an out-of-court identification where there is a substantial likelihood of misidentification, a victim's positive identification of his or her perpetrator—depending on the circumstances—nevertheless potentially can be considered by on-scene law enforcement in determining whether probable cause exists to arrest a suspect. The Court need not resolve this issue, however, as it finds that probable cause exists even without the show-up identification.
The Court also need not decide whether any exceptions to the exclusionary rule, including but not limited to the good-faith exception, might apply to the circumstances present here. See United States v. Leon, 468 U.S. 897 (1984); Warlick v. Commonwealth, 215 Va. 262, 208 S.E.2d 744 (1974); and their progeny.
Conclusion
The Court DENIES the Commonwealth's motion for reconsideration of the Court's suppression of Jordan's out-of-court identification. Based on the totality of the circumstances, the Court finds that Bell's in-court identification of Jordan is independent of his out-of-court identification and that any future in-court identifications are not tainted by the show-up identification. The Court further finds that probable cause to arrest Jordan existed without the show-up identification, justifying Jordan's arrest and precluding any post-arrest evidence from being fruit of the poisonous tree based on an unlawful arrest. The Court therefore DENIES Jordan's motion to suppress the in-court identification of Jordan, any future in-court identifications of Jordan, and any post-arrest evidence regarding the gunshot residue test and jail telephone calls as fruit of the poisonous tree.
The Clerk's Office is directed to prepare an order consistent with this ruling and forward it to all counsel of record. Any objections shall be filed with the Court within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/amm