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noting that government had agreed to produce, pursuant to Brady, information regarding any witness who had failed to identify the defendant as the perpetrator
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Cause No. IP01-0001-CR-01-T/F
June 1, 2001
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS WITNESS IDENTIFICATIONS
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant, Deago Lance Cheshier, is charged with six bank robberies in a ten count indictment. Mr. Cheshier moved to suppress all out-of-court and all in-court identifications of him made by any witness to whom FBI Special Agent Rufus Smith showed a photo array, which included a photograph of Mr. Cheshier. In his motion, Mr. Cheshier requests that an evidentiary hearing be held, the purpose of which would be to allow the government the opportunity to establish that witnesses' identifications of Mr. Cheshier are reliable. A hearing was held on May 23, 2001. The only witness called to testify at the hearing was Special Agent Smith.
Background
The facts set forth in this section are not disputed.
On December 18, 2000, Special Agent Smith interviewed Velvet Kilpatrick. Ms. Kilpatrick was a bank teller at Union Federal Savings Bank at the time of the robbery charged at Counts III and IV of the indictment. After conducting the interview, Special Agent Smith filed a FBI Form FD-302 which stated in part:
After being advised of the identity of the interviewing Agent and the nature of the interview, Kilpatrick provided the following information:
Kilpatrick was shown a photo spread consisting of six black males and was asked if she could identify the person who she believed to be responsible for the robbery of the bank on August 19, 2000. Kilpatrick pointed to photograph number two and identified that individual as the person responsible for the robbery.
Mr. Cheshier was pictured in photograph number three.
Subsequent to Special Agent Smith's interview, Ms. Kilpatrick was interviewed by Kevin A. Tate, an investigator for Mr. Cheshier. Ms. Kilpatrick told Mr. Tate that after viewing the photo array presented by Special Agent Smith, she indicated that the man pictured in photograph number four was the bank robber. She then asked Special Agent Smith whether she was correct, to which he shook his head indicating that she was not correct. Ms. Kilpatrick thereafter pointed to picture number three, which was a photo of Mr. Cheshier. The government does not dispute that Ms. Kilpatrick initially indicated someone other that Mr. Cheshier as the person who robbed the bank.
The discrepancy as to which photograph Ms. Kilpatrick initially pointed to, whether it be two or four, is without significance. It is undisputed that Ms. Kilpatrick initially indicated someone other than Mr. Cheshier as the man who robbed the Union Federal Savings Bank.
Despite Mr. Tate's attempt to interview the tellers at all banks that Mr. Cheshier is alleged to have robbed, Ms. Kilpatrick is the only teller that was willing to talk with him. Consequently, Ms. Kilpatrick is the only eyewitness to any of the charged robberies who has been interviewed by the defense.
Discussion
The Seventh Circuit has on numerous occasions clearly articulated a two-step test for evaluating a challenge to identification testimony. First, the defendant must "establish that the identification procedure employed was unreasonably suggestive. Next, the court must determine whether the identification, viewed under the totality of circumstances, is reliable, despite the suggestive procedures." United States v. Galati, 230 F.3d 254, 259 (7th Cir. 2000) (quotations omitted). Mr. Cheshier requests an evidentiary hearing "to give the government an opportunity to establish that the identification of the defendant by the witness is reliable."
The situation presented in this case is a little unusual. Mr. Cheshier moves to suppress any identification, either out-of-court or in-court, Ms. Kilpatrick made of him. The government, however, has represented to the court that it neither intends to "ask Ms. Kilpatrick at trial who she picked from the photospread" nor "to request Ms. Kilpatrick to make an in-court identification of the defendant." (Gov't's Br. in Opp'n at 3; see also id. at 4 ("The government does not intend to elicit any testimony from Ms. Kilpatrick regarding her viewing of the photo spread, and does not intend to ask Ms. Kilpatrick to make an in-court identification.")) The government reiterated these representations at the May 23rd hearing. Accordingly, the court need not address Mr. Cheshier's motion to suppress these identifications as the issue is moot.
Mr. Cheshier also moves to suppress any other identifications made by any witnesses who were shown a photograph array by Special Agent Smith. Mr. Cheshier argues that because Special Agent Smith improperly influenced Ms. Kilpatrick, there arises an inference that other witnesses were similarly influenced. Mr. Cheshier continues, "This inference shifts the burden to the government to establish the reliability of the identification of any witness who was shown the photo array before that witnesses [sic] testimony can be heard by the jury." (Def.'s Br. in Supp. at 2.) Mr. Cheshier cites no support for this argument, and requests an evidentiary pre-trial hearing in this regard.
The government responds by advising the court that it intends to call several witnesses who made out-of-court identifications of Mr. Cheshier. However, the government further submits that if a witness was shown the photo spread and did not identify Mr. Cheshier as the bank robber, Mr. Cheshier will be notified as this information will be turned over to him in accordance with the government's duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence. In addition, the government has assured the court that it will provide Mr. Cheshier with statements of all witness, in compliance with Jencks v. United States, 353 U.S. 657 (1957), and argues that Mr. Cheshier will have the opportunity to cross-examine at trial both those witnesses who give identification testimony and Special Agent Smith, who will be called to testify, regarding the out-of-court photo identification procedures.
It troubles the court, however, that it appears from the government's brief in opposition that the government did not advise defense counsel of Ms. Kilpatrick's misidentification until after the misidentification was brought to the government's attention by defense counsel.
As noted above, Special Agent Smith testified at the May 23rd hearing. Counsel for Defendant was given a full opportunity to question Special Agent Smith about the display of the photo array to potential witnesses, the witnesses' reactions to the display and Special Agent Smith's responses to their reactions. The court even elaborated on defense counsel's questioning by asking several questions of Special Agent Smith to clarify certain matters. There was no suggestion from Special Agent Smith's testimony that any witness, other than Ms. Kilpatrick, definitively identified a suspect other than Mr. Cheshier. Also, nothing in Special Agent Smith's testimony gave rise to any inference that his display of the array to any of the potential witnesses was suggestive or that his reaction to any of the identifications, except that of Ms. Kilpatrick and Evaliz Harrison, was suggestive.
Such a pre-trial evidentiary hearing is not necessary in this case. "The Supreme Court has clearly stated that the U.S. Constitution does not contemplate a per se rule mandating a judicial determination as to the admissibility of identification evidence outside the presence of the jury in every case." United States v. Torres, 191 F.3d 799, 811 (7th Cir. 1999), cert. denied, 528 U.S. 1180 (2000) (citing Watkins v. Sowders, 449 U.S. 341, 349 (1981)). "[A]n evidentiary hearing is required if the accused satisfies his burden of showing the necessity of such a hearing." United States v. Varela, 976 F. Supp. 1144, 1147 (N.D.Ill. 1997) (citing United States v. Rodriguez, 69 F.3d 136, 141 (7th Cir. 1995)). "That burden could be met only upon the presentation of definite, specific, detailed, and nonconjectural facts . . . [that] demonstrate that there is a disputed material issue of fact." Rodriguez, 69 F.3d at 141 (citation and internal quotation omitted). So, by conducting the hearing that included testimony from Special Agent Smith, the court allowed Mr. Cheshier an opportunity to explore this identification evidence that he was not necessarily entitled to receive.
Here, Mr. Cheshier has not come forward with "definite, specific, detailed, and nonconjectural facts" demonstrating any disputed material issue of fact. In fact, the exact opposite appears to be true. Mr. Cheshier infers from incomplete evidence that all out-of-court identifications of him made by witnesses interviewed by Special Agent Smith must be unduly suggestive and unreliable because, he argues, Ms. Kilpatrick's identification was so. And, when Mr. Cheshier had the opportunity to elicit specific, detailed and nonconjectural facts from Special Agent Smith regarding his questioning of eyewitnesses other than Ms. Kilpatrick, he failed to do so.
It appears to the court that what Mr. Cheshier truly seeks is an opportunity to cross-examine government witnesses prior to trial. However, this desired cross-examination can be achieved at trial, without a pre-trial evidentiary hearing. See Torres, 191 F.3d at 811 ("The district court then, correctly, noted that the cross-examination desired by the defendants could be obtained without a pre-trial evidentiary hearing and that the Supreme Court in Watkins . . . had concluded that cross-examination during trial was a sufficient vehicle for the defendants to cast doubt upon the reliability of the identifications."). At trial, "[c]ounsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi." Watkins, 449 U.S. at 348 (quotation omitted). The jury can then preform its function of weighing the reliability of the out-of-court identification. See Torres, 191 F.3d at 811 ("In fact, it is often properly left to the jury to determine the reliability of identification evidence.") (citation omitted); Varela, 976 F. Supp. at 1148 ("`Generally speaking, the jury can intelligently weigh the reliability of a questionable identification.'") (quoting United States v. Bolton, 977 F.2d 1196, 1201 (7th Cir. 1992)).
Mr. Cheshier has not come forward with any evidence by which the court could conclude that out-of-court identifications, excluding that made by Ms. Kilpatrick, are the result of unduly suggestive conduct by Special Agent Smith or are otherwise unreliable. Accordingly, there are no grounds upon which Mr. Cheshier's motion to suppress can be granted and, therefore, said motion will be denied.
As for in-court identifications, at the May 23rd hearing, the government represented to the court that the only witness it would ask to make an in-court identification of Mr. Cheshier is Benjamin Spillman. Mr. Cheshier, at the hearing, indicated that he does not challenge the admissibility of that identification. Therefore, the court need not rule on the suggestibility or reliability of in-court identifications of other witnesses, as none will be made.
As previously noted, there was some indication that when Ms. Harrison made an out-of-court identification of Defendant's photograph, Special Agent Smith smiled. The attorney for the government indicated that she was considering asking Ms. Harrison to attempt to make an in-court identification. However, after considering the potential that Special Agent Smith's smiley reaction might have been suggestive in a way that could affect the reliability of a subsequent in-court identification, she decided that she will not ask Ms. Harrison for an in-court identification.
For the foregoing reasons, Defendant's motion to suppress witness identifications is DENIED.