State of Louisiana v. Nathan Jackson and Tajuan McKnight

STATE OF LOUISIANA * NO. 2020-K-0056

VERSUS *
COURT OF APPEAL
NATHAN JACKSON AND *
TAJUAN MCKNIGHT FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 544-548, SECTION “SECTION K”
Honorable Hunter P. Harris, Judge, Pro Tempore
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods)

Diana Yu
Orleans Public Defenders
2601 Tulane Avenue, Seventh Floor
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF-RELATOR

Leon A. Cannizzaro, Jr
District Attorney
Scott G. Vincent
Assistant District Attorney
Parish of Orleans
619 S. White St.
New Orleans, LA 7019

COUNSEL FOR DEFENDANT-RESPONDENT

WRIT GRANTED; REVERSED
APRIL 8, 2020

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RBW

RLB

SCJ

Defendant-Relator, Nathan Jackson (“Defendant”), seeks supervisory review

of the district court’s December 18, 2019 ruling denying his motion to suppress an

out-of-court identification. For the following reasons, we grant the writ, reverse the

judgment of the district court and grant the motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

On December 18, 2019, a motion to suppress hearing was held on

Defendant’s motion to suppress the out-of-court identification of the victim in this

matter, identifying Defendant as one of the perpetrators of an aggravated assault.

Officer Kevin Nguyen (“Officer Nguyen”), assigned to the New Orleans

Police Department’s (“NOPD”) Seventh District, testified that on December 18,

2018, he commenced an investigation into an alleged aggravated assault. Officer

Nguyen explained that another officer called for assistance after the victim, Terilyn

Frazier (“victim”), “flagged [him] down,” stating that two black males “pulled a

firearm” on her. Thereafter, Officer Nguyen stated that they located the only two

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black males whom they believed to be the victim’s assailants standing in the area

where the assault took place.

Once the two individuals were apprehended, Officer Nguyen testified that

“we did a show-up.” Officer Nguyen explained that one of the apprehended

individuals was in his police car and the victim came by in an unmarked vehicle,

pulling up “about six-car length[s] away from [Officer Nguyen’s] unit.” At that

point, Officer Nguyen took the suspect out of his vehicle, placed him behind his

unit, and the victim, sitting in the unmarked police car, identified the suspect.

Officer Nguyen testified that the “show-up ID” took place “maybe an hour or two”

after he had spoken with the victim. Once the victim had identified both of the

suspects as her assailants, the two were arrested.

On cross-examination, Officer Nguyen stated that the victim relayed that the

incident occurred at an apartment complex and, after taking the victim’s

information, Officer Nguyen “relocated immediately” to the area described by the

victim. Officer Nguyen testified that his body-camera was functioning throughout

his investigation. Upon arriving at the apartment complex, Officer Nguyen and his

partner located the two suspects at a nearby bus stop. One of the suspects, Tajuan

McKnight (“McKnight”), fled. Defendant, on the other hand, did not flee; he was

cooperative with respect to the investigation. No firearm was confiscated from

Defendant. However, one of the officers who “chased down” McKnight,

witnessed him “throw [out] a firearm.”

The victim informed Officer Nguyen that she did not know the two black

males that assaulted her at gunpoint. Upon questioning by the court, Officer

Nguyen told the court that the victim stated that one of her assailants was wearing

“a white hoodie” and the other was wearing “a black hoodie.” However, after

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watching his body-camera footage, Officer Nguyen corrected his testimony in this

regard. He confirmed that the victim told him that one of the perpetrators was

wearing a white hoodie and the other one was wearing orange. A white hoodie

was found near the location where McKnight was apprehended.

Officer Nguyen testified that at the time the victim made her identifications,

each of the suspects was in handcuffs and a uniformed police officer accompanied

each. Upon questioning by the court, Officer Nguyen stated that the assault and

identifications took place in the daytime.

After reviewing his body-camera footage, Officer Nguyen confirmed that

the victim stated that both of her assailants were wearing hoodies. The victim

provided no description of their facial features. Officer Nguyen stated that when

the suspects were brought out for the victim to view them, neither were wearing

hoodies. Further, Officer Nguyen recalled, after watching the footage that the

victim, at one point, mentioned that she saw something orange.

A review of Officer Nguyen’s body-camera footage evinces the victim

explaining to Officer Nguyen that while she was driving her vehicle with dark-

tinted windows, she observed both assailants turn toward her vehicle and retrieve

weapons from their waistbands. Upon seeing this, the victim rolled down her

window and informed the two men that she did not know who they were looking

for, “but I’m not it.” Thereafter, one of the men apologized and the victim drove

away from the scene. The victim did not provide a physical description of her

assailants, but stated that both wore hoodies; one was wearing a white hoodie and

she remembered seeing something orange.

Officer Eddie Dema (“Officer Dema”), also assigned to the NOPD’s

Seventh District, testified that on December 18, 2018, he participated in the

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aggravated assault investigation during which he was asked to place the victim in

his vehicle for a “show-up” identification. Officer Dema stated that the “show-up”

took place at approximately 10:00 a.m. and that the victim was approximately fifty

(50) to sixty (60) feet away from the suspects when she identified them. Officer

Dema’s body-camera footage was played and after watching it, Officer Dema

confirmed that the victim stated that she was having difficulty identifying her

assailants because at the time of the assault they were wearing hoodies. Officer

Dema further stated that the victim participated in three “show-ups.” He recalled

the victim stating something to the effect that one of her assailants was wearing

orange.

A review of Officer Dema’s body-camera footage corroborates his

testimony. Though difficult to hear precisely what the victim stated, one can hear

Officer Dema explain to another police officer that the victim was having difficulty

identifying her assailants because, at the time of the “show-up” identification, they

were not wearing their hoodies. The victim further informed that one of the

assailants “had on white and one had on something orange.” Later, the victim

reiterated that it was hard to identify the assailants because they wore hoods when

the encounter took place.

NOPD Officer Wayne Lewis (“Officer Lewis”), like Officers Nguyen and

Dema, was assigned to the NOPD’s Seventh District and also participated in the

aggravated assault investigation. Officer Lewis testified that he spoke with the

victim and then went in search of her assailants in the area where she reported that

the incident had occurred. When he and his partner reached the pertinent area,

they “observed two males, one wearing a black hoodie and one wearing a white

hoodie.” Officer Lewis recalled that the male in the white hoodie fled and the

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other suspect “just stood there.” Officer Lewis stated that the “show-ups” took

place within an hour from the time the crime was reported.

On cross-examination, Officer Lewis’s body-camera footage was played.

Officer Lewis testified that the footage depicted him speaking with the victim who

informed him that one of her assailants was wearing white and the other one was

wearing orange. The victim did not state that either of her assailants was wearing a

black hoodie. The victim also told Officer Lewis that both of her assailants were

about Officer Lewis’s height, which was six-feet tall.

A review of Officer Lewis’s body-camera footage corroborates his

testimony. Though difficult to hear, the victim informs Officer Lewis that one of

her assailants was wearing white and “one of them maybe had on orange.” She

further stated that the perpetrators were approximately Officer Lewis’s height,

which was about six feet tall. Officer Lewis testified that when they apprehended

Defendant, he was wearing a black hoodie; he was not wearing anything orange in

color.

On February 13, 2019, the State filed a bill of information charging

Defendant with aggravated assault with a firearm in violation of La. R.S. 14:37.4,

possession of a firearm in a firearm-free zone in violation of La. R.S. 14:95.2, and

resisting an officer in violation of La. R.S. 14:108. On February 28, 2019,

Defendant appeared for arraignment and entered pleas of not guilty. On December

18, 2019, a hearing was held with respect to Defendant’s motion to suppress the

victim’s out-of-court identification. Following the hearing, the court denied

Defendant’s motion, stating that the complaint “goes to the weight of the

evidence.” It is from this ruling that Defendant filed the instant writ application.

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DISCUSSION

Assignment of Error

Defendant argues that the trial court erred when it denied his motion to

suppress identification because the NOPD Officers conducted an inherently unduly

suggestive show-up identification procedure wherein the victim repeatedly

expressed uncertainty in her identification of Defendant and Defendant did not

remotely match the description initially given by the victim.

Standard of Review

A district court’s ruling on a motion to suppress identification is reviewed

for abuse of discretion. State v. Bickham, 404 So.2d 929, 934 (La. 1981); see also

State v. Briley, 13-1421, p. 15 (La. App. 4 Cir. 10/1/14), 151 So.3d 633, 643. On a

motion to suppress identification, it is the defendant, not the State, who bears the

burden of proof. La. C.Cr.P. art. 703(D). Defendant’s burden is two-fold. First,

Defendant must prove that the identification procedure was unduly suggestive. If

Defendant carries this initial burden, Defendant must then also prove that the

unduly suggestive procedure created “a very substantial likelihood of irreparable

misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254,

53 L.Ed.2d 140 (1977 (internal citations omitted).

Identification is Unduly Suggestive

“An identification procedure is [unduly] suggestive, if during the procedure,

the witness’ attention is unduly focused on the defendant.” State v. Newsome,

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2018-1075, p. 7 (La. App. 4 Cir. 2/27/19), 265 So.3d 1223, 1228, citing State v.

Robinson, 386 So.2d 1374, 1377 (La. 1980). In the instant matter, the “show-up”

identifications are similar to the “show-up” identifications employed in Newsome,

supra. In this case, as in Newsome, police presented each defendant to the victim

individually, after each was taken from the back of a police vehicle. Each

defendant remained handcuffed with an officer standing beside him. Taken the

facts of this case as a whole, it is unquestionable that the “show up” identification

procedure employed by the NOPD Officers was unduly suggestive, in that it

unduly focused the victim’s attention on Defendant.

The next issue to be resolved is whether the unduly suggestive identification

created “a very substantial likelihood of irreparable misidentification.” Manson,

432 U.S. at 116, 97 S.Ct. at 2254.

Suggestive Identification Presenting Substantial Likelihood of Misidentification

The U.S. Supreme Court, in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct.

375, 34 L.Ed.2d 401 (1972), outlined five factors to be considered when

determining whether a suggestive identification presented a substantial likelihood

of misidentification: (1) the opportunity of the witness to view the assailant at the

time of the crime; (2) the witness' degree of attention; (3) the accuracy of the

witness' prior description of the assailant; (4) the level of certainty demonstrated by

the witness; and (5) the length of time between the crime and the confrontation.

Assessed in their totality, these factors are weighed against “the corrupting effect

of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114, 97

S.Ct. 2243, 53 L.Ed.2d 140 (1977).

With respect to the first and second factors, despite the fact that the crime

happened in the day time during a clear day, the victim did not provide a physical

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description of the perpetrators’ faces, because they were wearing hoodies. The

victim could not provide the officers with a description of any facial features. The

victim complained to Officer Dema that she was having difficulty identifying the

assailants because they had on hoodies at the time of the assault. Moreover,

despite the fact that there is no account as to how long the encounter between the

victim and the perpetrators lasted, it should be noted that based on the fact that

there were two perpetrators, the victim’s attention was divided between the two.

This division of attention is apparent from the discrepancy in the victim’s

descriptions of her assailants. The victim was able to state that one of her

assailants was wearing a white hoodie, and as to the other assailant, the best she

could manage was “maybe [he] had on orange.” Defendant was wearing a black

hoodie at the time he was apprehended and the victim never told any of the officers

that one of the perpetrators wore a black hoodie.

The third factor—the accuracy of the victim’s prior description—reveals that

Defendant did not fit the victim’s prior account. Again, the victim noted that both

of her assailants had on hoodies and when Defendant was apprehended by police

he was wearing a hoodie. However, while the victim said one of the perpetrators

was wearing a white hoodie, and that fit the description of McKnight, according to

the victim the other perpetrator was “maybe” wearing orange. Officer Lewis

testified that Defendant was not wearing anything orange in color; instead, he was

wearing a black hoodie and the victim never described either one of her

perpetrators as wearing a black hoodie. Further, the victim estimated that both

perpetrators were approximately six-feet tall; Defendant is only five-feet and six

inches tall. Additionally, the victim reported that both perpetrators retrieved

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weapons from their waistbands. Defendant did not possess a firearm when he was

apprehended by police.

The fourth factor, the level of certainty expressed by the victim at the show-

up identifications, weighs against a finding that the identification was reliable. As

reflected in the body-camera footage, the witness expressed doubt regarding her

ability to identify the perpetrators. She was unable to provide a physical

description and complained that she was having difficulty because, at the time of

the assault, the perpetrators were wearing hoodies.

Another factor to be taken into consideration in measuring the reliability of

the victim’s “show-up” identification, is the distance from which the identification

was made. Officer Nguyen testified that the victim was “about six-car length[s]

away” from the suspects, while Officer Dema estimated the distance to be fifty

(50) to sixty (60) feet. It would not be unfounded to question the accuracy of an

identification made from such a distance.

Finally, with regard to the fifth factor, the time between the crime and the

show-up identification, the testimony of the officers varies. Officer Nguyen

estimated that the “show-up ID” took place “maybe an hour or two” after he had

spoken with the victim. Officer Lewis stated that the “show-ups” took place

within an hour from the time the crime was reported. This estimate, however, does

not accurately reflect the time between the actual crime and the out-of-court

identification. The victim reported the incident to a different police officer, Officer

Valencia, who, in turn, reported it to Officers Nguyen and Lewis. As such, there is

some lag time between when the assault actually occurred and when the officers

spoke with the victim. Considering the lag time between when the incident was

reported to Officers Nguyen and Lewis and when it actually occurred, along with

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the discrepancies in the estimates provided by the two officers, an approximate

calculation is that the out-of-court identifications were made over an hour after the

crime occurred.

Such a time lapse, generally, is not too long to undermine an otherwise

reliable identification. See State v. McKinney, 455 So.2d 1235, 1238 (La. App. 4

Cir. 8/31/84) (three-hour delay from the time of the crime to the time of the out-of-

court identification deemed sufficient to uphold identification); but see State v.

Brown, 09-0884, p. 8 (La. App. 4 Cir. 3/31/10), 36 So.3d 974, 980 (the temporal

factor delineated in Biggers, supra, “is generally satisfied when the identification

occurs within an hour of the crime”). However, the other four factors contain

sufficient indicia of unreliability. In weighing these factors against the corrupting

effect of the suggestive identification, we find that the district court abused its

discretion in denying Defendant’s motion to suppress the out-of-court

identification.

Absent a reliable identification of Defendant and based on the totality of the

facts which included, but were not limited to: (1) victim was unable to provide any

facial description of Defendant; (2) victim identified perpetrators as being six feet

tall and Defendant is only 5 feet 6 inches tall; (3) victim identified two

perpetrators: one wearing a white hoodie and the other wearing something

orange—Defendant was wearing a black hoodie at the time of his apprehension by

officers; (4) victim stated that two perpetrators brandished guns that they pulled

from their waistband; a weapon was never recovered from Defendant’s person; and

(5) victim was asked to identify the perpetrators from a distance of between fifty

(50) and sixty (60) feet away.

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After reviewing the facts and record, we find that based on the totality of the

circumstances the identification procedure was unduly suggestive. As such a

substantial likelihood of irreparable misidentification was created as a result of the

identification procedure.

CONCULSION

For the reasons aforementioned, we find that the district court erred when it

denied Defendant’s motion to suppress identification. Accordingly, Defendant’s

writ is GRANTED, the judgment of the district court is REVERSED, and the

motion to suppress is GRANTED.

WRIT GRANTED; REVERSED

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