USA v. Reid

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-057-JD
Gordon Reid
O R D E R
Gordon Reid is charged with one count of interference with
commerce by means of robbery in violation of 18 U.S.C. § 1951(a),
a Hobbs Act offense, after he allegedly robbed a Hess Gas Station
and Convenience Store in Concord, New Hampshire. He moves to
suppress the pretrial identifications and anticipated in-court
identifications of him by two witnesses, asserting that the
pretrial identifications were impermissibly suggestive, which
also would give rise to a substantial likelihood of
misidentification in court. The government objects to both
motions. Reid also moves for a hearing on his motions.
Discussion
“‘A criminal defendant has no absolute or presumptive right
to insist that the district court take testimony on every
motion.’” United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.
1994) (quoting United States v. Panitz, 907 F.2d 1267, 1273 (1st
Cir. 1990)). An evidentiary hearing is required only if the
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defendant first alleges “facts that, if proven, would entitle him
to relief.” Id. “The burden is on the defendant to allege
facts, ‘sufficiently definite, specific, detailed, and
nonconjectural, to enable the court to conclude that a
substantial claim is presented.’” United States v. Calderon, 77
F.3d 6, 9 (1st Cir. 1996) (quoting Lewis, 40 F.3d at 1332).
“[A] court is to withhold identification evidence from the
jury only in extraordinary circumstances.” United States v.
Lebron-Cepeda, 324 F.3d 52, 58 (1st Cir. 2003). When a defendant
challenges the admissibility of identification evidence, the
court uses a two-part analysis to determine whether the evidence
must be suppressed. United States v. Lopez-Lopez, 282 F.3d 1, 10
(1st Cir. 2002). First, the defendant must show that the
identification procedure was impermissibly suggestive. United
States v. Gray, 958 F.2d 9, 14 (1st Cir. 1992); see also United
States v. Sullivan, 431 F.3d 976, 985 (6th Cir. 2005). If he
satisfies that burden, the court then considers whether in light
of the totality of the circumstances the identifications were
nevertheless reliable. Lopez-Lopez, 282 F.3d at 10-11. The same
test applies to in-court identifications, that is, “in-court
identification testimony is admissible unless its basis, the
pretrial identification, has proven so impermissibly suggestive
as to give rise to a very substantial likelihood of
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misidentification.” United States v. Maguire, 918 F.2d 254, 264
(1st Cir. 1990).
In support of both of his motions to suppress, Reid
alleges, supported by his affidavit, that he is accused of
robbing the Hess Convenience Store on the night of February 13,
2005. He states that about an hour after the alleged robbery, he
was arrested several blocks away from the store by two Concord
police officers and put in the back seat of a marked police
cruiser. He was then “taken back to the Hess Convenience Store
for the purpose of conducting a one-person show-up.”
At the store, “the two officers opened the backdoor of the
cruiser, jumped in the backseat with the Defendant, and placed
him in a headlock.” Renee King, the only employee on duty in the
store at the time of the alleged robbery, was brought forward and
identified Reid “as the perpetrator.” David Broadbent who was a
customer at the store was also brought forward and identified
Reid “as the perpetrator.” Based on those allegations, Reid
asserts that the identification process was impermissibly
suggestive so that King’s and Broadbent’s identifications of him,
both at the scene and in court, should be suppressed.
The government provides statements of facts in each of its
objections that are not supported by affidavits, references to
the record, or any other evidentiary basis. Cf., e.g., United
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States v. Gomez Pizarro, 364 F. Supp. 2d 56, 65 (D.P.R. 2005).
In addition, the government makes only a brief appeal that the
identification procedure used was not impermissibly suggestive
and cites no analogous cases in support of its argument. Despite
the government’s anemic response, at least two cases appear to
support a conclusion that the show-up in Reid’s case was not
unduly suggestive.
In United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996),
the court affirmed the district court’s denial of a motion to
suppress a show-up identification, concluding that it was not
unduly suggestive. In Watson, the defendant pistol whipped a
teenager, causing the gun to fire and then to jam, which gave the
teenager an opportunity to escape. Hearing the shots, a Boston
police officer drove to the site and put a call out on his radio.
The defendant fled on foot after his Porsche stalled in a puddle.
Two more officers arrived, chased the defendant, and caught him.
The officers then brought the defendant over to the victim for
identification, and the victim identified the defendant as his
assailant. The appeals court concluded that the show-up
identification was not unnecessarily suggestive because “[s]how-
ups that take place immediately after the offense has been
committed may be necessary in order to avoid the mistaken
apprehension of the wrong person.” Id.; see also Lebron-Cepeda,
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324 F.3d at 59 (identification not impermissibly suggestive
although defendant identified after witness saw him sitting
handcuffed in police cruiser because identification was
contemporaneous with events).
The show-up identification in this case might arguably fall
into the category of a necessarily immediate identification of a
suspect. On the other hand, because Reid alleges that he was
identified by King and Broadbent while being held in a headlock
by police officers, that circumstance, taken as true, might
provide a basis for further factual development of his claim.
Reid did not address the reliability prong of the analysis,
however, leaving that part of his claim without factual support.
In response, the government argues that the identifications
were reliable but failed to provide a properly supported factual
basis for its opposition. Therefore, as a result of the
government’s failure to provide a properly supported opposition,
a hearing is necessary to provide a sufficient factual basis upon
which the court can decide the issues Reid raises in his motions.
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Conclusion
For the foregoing reasons, the defendant’s motion for a
hearing on his suppression motions (document no. 104) is granted.
The hearing will be held on February 8, 2006, at 10 a.m.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
February 3, 2006
cc: Gordon Reid, pro se
Michael J. Iacopino, Esquire
Helen W. Fitzgibbon, Esquire
U.S. Probation
U.S. Marshal
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