United States v. Wrensford

UNITED STATES OF AMERICAand PEOPLE OF THE VIRGIN ISLANDS, v. ELVIN WRENSFORD and CRAIG MULLER, Defendants.

Criminal Action No. 2013-0003

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Date: March 24, 2014

Attorneys:

Alphonso G. Andrews, Jr., Esq.,

St. Croix, U.S.V.I.

For the Government

Martial A. Webster, Esq.,

St. Croix, U.S.V.I.

For Defendant Craig Muller

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER is before the Court on Defendant Craig Muller's Motion to Suppress Identification Evidence. (Dkt. No. 36). The Government filed its Response to the Motion (Dkt. No. 39), and the Court held an evidentiary hearing. For the reasons discussed below, the Court will deny Defendant's Motion.

I. BACKGROUND¹

On June 11, 2012, Defendant Craig Muller ("Muller") was charged in an Information filed in the District Court of the Virgin Islands with Possession of a Firearm in a School Zone, in violation of 18 U.S.C. § 922(q)(2)(A); Unauthorized Possession of a Firearm, in violation of 14V.I.C. § 2253(a); and Murder in the First Degree, in violation of 14 V.I.C. § 922(a)(1). (Dkt. No. 1 in 12-cr-12). On January 29, 2013, Muller was indicted on these three charges, as well as on the charge of Using a Firearm during a Violent Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (Dkt. No. 1 in 13-cr-3). On September 3, 2013, Muller filed the instant "Motion to Suppress Identification Evidence and Request for Evidentiary Hearing with Points and Authorities." (Dkt. No. 36). The Government filed its Opposition on October 4, 2013. (Dkt. No. 39). The Court granted Muller's "Motion for Continuance of Suppression Hearing Scheduled for November 20, 2013" (Dkt. No. 48), and the hearing was held on December 19, 2013. (Dkt. No. 54)

At the suppression hearing, one witness testified—Virgin Islands Police Department ("VIPD") Detective Kirk Fieulleteau, an Investigator in the Major Crimes Unit. Det. Fieulleteau stated that he was called to the scene of a shooting incident in the vicinity of Food Town supermarket in Christiansted, Virgin Islands, on May 10, 2012. He arrived between 8:30 and 9:00 p.m. and talked briefly with one eyewitness, known as Witness Two ("W2"). He asked W2 if s/he was willing to talk with him further. W2 agreed and they arranged to meet later that evening at the police station closest to the crime scene—the Marshall Command in Christiansted. After W2 arrived at the police station, Det. Fieulleteau took W2's statement. W2 signed the "Statement Narrative" on May 10, 2012 at 9:55 p.m. (Ex. 1, p. 184).

W2 told Det. Fieulleteau that s/he was sitting on the passenger side of a truck that was parked in the Food Town parking lot facing the store. While W2 was in the vehicle, s/he heard gunshots coming from the direction of Ben's Car Wash down the road, across the street from Food Town. W2 looked through the truck's back window and saw a male running up the road from the Car Wash in W2's direction. Shortly thereafter, W2 saw a red pick-up truck come fromthe area of the Car Wash and follow the individual who was running. W2 told Det. Fieulleteau that the passenger in the red truck was firing shots at the person running. The truck turned right on a side street and cut the man off. The passenger in the truck continued firing gunshots until the man fell.

When questioned at the crime scene, W2 stated that s/he could see both the driver of the truck and the shooter. W2 described the driver as clean shaven, having black skin "a little darker" than W2, a black shirt, and a black stocking cap on his head. In the Statement Narrative, Det. Fieulleteau asked W2 whether s/he recognized the driver of the red truck during the shooting incident. W2 responded "no." (Ex. 1, pp. 192-93).

Det. Fieulleteau testified that he asked W2 during the interview if s/he had seen the shooter after the incident. W2 responded that when s/he stopped at the traffic light in front of the Marshall Command, en route to the interview, s/he looked to the right and saw the shooter being escorted to the police car.² In the Statement Narrative, W2 stated that "the guy the police put in the car is the guy I saw shooting from the front passenger window of the red truck earlier during the shooting incident in front of Food Town grocery." (Ex. 1, p. 195). W2 further stated that "[t]he first time I ever saw [the shooter] was earlier during the shooting incident at Food Town grocery. He was shooting at the guy on the grass." Id. p. 196.

Det. Fieulleteau testified that he interviewed W2 again on May 13, 2012 for the purpose of showing W2 a photo array. The VIPD Forensics Unit had compiled a photo array of six males set out in two rows of three photographs each. (Ex. 2, p. 204). A photograph of Defendant Mullerhad been included in the array because Detective Richard Matthews, who was also working on the case, had received credible information that Muller was the driver of the truck. Det. Fieulleteau explained to W2 that he had a photo array to present to him/her, and told W2 if s/he recognized anyone, to let him know. Det. Fieulleteau testified that W2 looked at the photo array for a few minutes and indicated s/he recognized one photograph—photo #4—which was a photograph of Defendant Muller. According to Det. Fieulleteau, W2 was "very positive" in recognizing the person in photo #4 as the driver of the truck.

Det. Fieulleteau asked W2 how s/he knew the person in photo #4. In the Statement Narrative, s/he answered that s/he saw him in La Grande Princesse

with the guy that I saw shoot the guy Thursday night in front of Food Town Grocery in the red truck. I [unintelligible] always see them [redacted] together. The guy in photo number four (4) was driving the red truck Thursday night, May 10, 2012 during the shooting incident in front of Food Town grocery. The guy in photo number four (4) is friends with the shooter.

(Ex. 2, p. 201).

II. DISCUSSION

A. Applicable Legal Principles

In United States v. Lawrence, 349 F.3d 109 (3d Cir. 2003), the Third Circuit explained the constitutional ramifications when a witness to a crime identifies a suspect. "A due process violation can result when an identification procedure is so suggestive that it undermines the reliability of the resulting identification. Allowing a jury to consider an identification that is tainted by such a procedure can constitute reversible error entitling the defendant to a new trial." Id. at 115. The Court went on to say that "showing a witness a photographic array can constitute a denial of due process when police attempt to emphasize the photograph of a given suspect, orwhen the circumstances surrounding the array unduly suggest who an identifying witness should select." Id. (citing Simmons v. United States, 390 U.S. 377, 383 (1968)).

In United States v. Foote, 432 F. App'x 151 (3d Cir. 2011), the Third Circuit set forth a two-step analysis that is instructive when determining whether a photo array should be suppressed:

First, we ask whether the photo identification procedure was "unnecessarily or impermissibly suggestive." Id. (internal quotation marks omitted.) To answer that, we determine the actual suggestiveness of the identification and whether there was a good reason for the failure to utilize less suggestive procedures. Id. If the photo array is unnecessarily suggestive, we then determine under the totality of the circumstances whether it was so much so that it gave rise to a substantial likelihood of misidentification amounting to a violation of due process. Id. "[R]eliability is the linchpin in determining the admissibility of identification testimony...." Id. at 1391 (internal quotation marks omitted). . . . In sum, "we must determine (1) whether the identification process was unduly suggestive and, if so, (2) whether the totality of the circumstances nonetheless renders the identification reliable." Thomas v. Varner, 428 F.3d 491, 503 (3d Cir. 2005). The defendant has the burden of proving that the out-of-court identification was the product of unduly suggestive procedures. Lawrence, 349 F.3d at 115.

Id. at 154. Similarly, in Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716 (2012), the Supreme Court held that "the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement." Id. at 730. In other words, only if a court determines that the identification process was unduly suggestive will it perform a reliability analysis, examining under the totality of the circumstances whether other indicia of reliability '"outweigh[ ] . . . the corrupting effect' of law enforcement suggestion." Id. at 725 (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977))..

As discussed below, the Court finds that Muller's challenge fails at step one of the analysis, because W2's identification of Muller in the photo array did not result from an unnecessarily suggestive procedure employed by the police.

B. Analysis

Defendant Muller contends that the photo array was unduly suggestive; therefore, W2's identification of him should be suppressed. At the suppression hearing, counsel argued, inter alia, that the other individuals whose photographs were included in the photo array did not look like Muller in that they had more or less hair on their heads or facial hair than he did, different sized or shaped heads, darker complexions, different colored T-shirts, and reflected different attitudes.

It is axiomatic, however, that differences in appearance will occur among any group of six people and do not, per se, make an identification unduly suggestive. See United States v. Sanders, 275 F. App'x 121, 124 (3d Cir. 2008) ("Each photo shows a man with unique characteristics. That does not make unduly suggestive the characteristics unique to [defendant's] photo."); United States v. Rogers, 491 F. Supp. 2d 530, 536 (M.D. Pa. 2007) (opining that the '"primary question...