United States v. Jones

689 F.3d 12

UNITED STATES of America, Appellee,

v.Daquawn JONES, Defendant, Appellant.

No. 10–2363.

United States Court of Appeals, First Circuit.

Heard May 7, 2012.

Decided July 27, 2012.

Rheba Rutkowski, Assistant Federal Public Defender, Federal Defender Office, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

In the spring of 2008, federal, state and local agents began an investigation of drug activity in the Green Street area of Brockton, Massachusetts. Late in the afternoon of June 19, 2008, Massachusetts State Trooper David Patterson, working undercover, sought to purchase drugs at the corner of Lexington and Green Streets. After placing a phone call requesting two $40 bags of crack cocaine, Patterson waited for delivery of the drugs, sitting in a truck equipped with concealed audio/video recording equipment.

From his vantage across the street, Patterson could see a group of people congregated around the driveway of 249 Green Street. Eventually, a man unknown to Patterson emerged from the group and began walking towards Patterson's truck. Patterson later recalled that the man was wearing white sneakers, a black hat on backwards, a white Adidas shirt and gray sweatpants. Patterson watched the man's approach with care, wanting to be sure that he was unarmed.

As the man started to cross the street and move toward the truck, a Dodge truck that Patterson had earlier seen circling the area drove slowly by Patterson's truck. On the video recording of the events, Patterson's concern about the identity and intentions of the Dodge's driver are readily apparent. Patterson later explained that his concern was that the driver might be a police officer unaware of the operation or someone pretending to be a police officer but aiming to rob or attack Patterson. The man advancing from the driveway also appeared to notice the truck and slowed his approach and lowered his head while waiting for the truck to pass.

After the Dodge had passed, the man who had been approaching from the driveway arrived at Patterson's vehicle, coming within 5 to 10 feet of the car, and asked “What do you want?” Patterson responded that he had $80 and wanted two $40 bags of crack cocaine. The man then went back to 249 Green Street where he conferred with the group in the driveway; he then got into a nearby car and drove away.

Shortly thereafter, a second unidentified man left the group in the driveway and walked up to Patterson's car, saying: “You want two 40's, right? Right. Two 40's. You got 80?” Patterson agreed and then exchanged the money for a bag that proved to contain crack cocaine. Patterson drove to the Brockton police station where he gave the drugs to Trooper Erik Telford and briefly gave his account of the day's events. The next day, Patterson turned over to Telford a DVD containing the video recording of the drug buy described above.

Telford was familiar with the drug trade in the area, patrolled there regularly and knew or could recognize many of the participants. In the video recording, the face of the first unidentified man is out of focus and blurry while the face of the second unidentified man in the video can be seen quite clearly. Nevertheless, Telford (as he later testified) had no difficulty recognizing the first man as Daquawn Jones and the second as Johnny Richmond. Telford secured booking photos of the two men, showed them separately to Patterson and asked Patterson if he could identify them.

Patterson identified the photo of Jones as depicting the man who had first approached the vehicle to take the order and the photo of Richmond as the man who delivered the drugs. Patterson, of course, was not being asked to match the photos to the video but to his memory of the two men as he saw them at the time of the transaction: each had approached his truck and each had carried on a brief conversation with Patterson. It appears that neither then nor later did Patterson express any doubt or uncertainty about his identification.

Both Jones and Richmond were arrested and indicted. They were charged with conspiring to distribute cocaine base, 21 U.S.C. § 846 (2006), and with distribution (or abetting distribution, 18 U.S.C. § 2) of cocaine base within 1,000 feet of a school, 21 U.S.C. §§ 841(a)(1), 860. While Richmond pled guilty, Jones chose to go to trial. Thereafter the district court was presented with two pretrial motions to suppress or exclude evidence—one from each side—the dispositions of which are the centerpiece of Jones' present appeal.

First, Jones moved to suppress Patterson's out-of-court identification of Jones when he first identified the booking photo to Telford at the police station on the ground that it had been secured by an unduly suggestive process and was unreliable. Jones' request for suppression extended to any future in-court identification by Patterson as irrevocably tainted by the improper procedures used initially. Patterson testified at the suppression hearing describing the events recounted above.

The district court ultimately denied the motion to suppress, concluding that the identification process had been “impermissibly suggestive” (legal jargon explained below) but that the government had shown that the identification was reliable. The arguments of the parties and the district court's reasoning are described more fully in the merits discussion but at trial centered around Telford's use of a single photograph rather than an array and on the conditions of Patterson's initial look at Jones during the buy.

Also prior to trial, the government moved to exclude a proposed defense expert, Dr. Steven Penrod, from testifying. Penrod holds both Ph.D. and J.D. degrees and proposed to testify about a host of issues related to eyewitness identification: the effect of stress on identification; the decreased accuracy of cross-racial compared to same-race identification (Patterson and Telford are white; Jones is black); the lack of correlation between witness confidence and accurate identification; and the influence of suggestive identification practices.

The government's position was that identification of individuals was within the common experience of the jury, that such evidence was unnecessary and potentially misleading, and that courts commonly, although not always, reject such expert testimony. Jones' position was that the information Penrod hoped to provide defied in some respects the common knowledge of jurors and would be helpful to the jury in evaluating the weight to be given to Patterson's identification; further, Jones said, mis-identification was a critical element of his defense.

The district court granted the motion to bar the expert from testifying but its position was more nuanced than the government's.¹ In a nutshell, the court agreed that some aspects of Penrod's general concerns about stress, cross-racial identification, suggestive procedures and witness confidence would be useful information for a jury; but, the court held, these cautions were more efficiently, and with less risk of confusion, conveyed by the court's intended jury instructions, whose content and circumstances are discussed hereafter. United States v. Jones, 762 F.Supp.2d 270, 277–78 (D.Mass.2010).

At trial, the government rested heavily on Patterson's eyewitness testimony but in addition Telford testified to his identification of Jones from the video; the jurors themselves saw the video; Brockton Police Detective George Almeida testified to Jones' regular presence in the area of the transaction in the first half of 2008, including on June 17, 2008 (two days before the transaction), when he was seen with Johnny Richmond; and the government introduced an arguably incriminating recorded telephone conversation (discussed in more detail below).

Acting on his promise, the district judge did, at Jones' request, issue relatively extensive jury instructions touching on the subjects of Penrod's proposed testimony. The most relevant part of the instructions provided that, in evaluating the identification:

You may take into account the strength of the later identification and the circumstances under which the later identification was made. Was the identification by a witness influenced by the circumstances under which the identification was made. If you think it was you should examine that identification with great care. You want to consider the length of time or the relative shortness of the time between the first, the first observation of the person and the later identification. Was the photographic identification procedure conducted afterwards suggestive in any way. For example, an identification made when a witness chooses a photo from a group of photos tends to be more reliable than an identification made from a single photograph. It is not forbidden by the law to identify from a single photograph. But you heard the stipulation about we don't treat police officers any different, or at least there's nothing in the manuals that say treat police officers any different. And I do tell you that it's generally believed that an identification of a person made from a group of photographs tends to be more reliable than one made from a single photograph. Now, you may rely upon this. That's left to you. I don't say anything about it. But you should understand that.

Consider these other things. You may consider these other things. What was the witness's state of mind at the time of the observation. There are studies that show that if a witness is afraid, distracted, under stress, then the witness's capacity to perceive what he says he perceives and remember it, that's reduced. Were the witness, the eyewitness witness and the person he's identifying, were they of different races. There are studies that tend to show that when a witness and the...