State of Louisiana v. Joseph Scott

STATE OF LOUISIANA * NO. 2024-K-0024

VERSUS *
COURT OF APPEAL
JOSEPH SCOTT *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS EXPEDITED CONSIDERATION DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 559-344, SECTION “DIVISION G”
Judge Nandi Campbell
******
Judge Joy Cossich Lobrano
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(Court composed of Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

Jason Rogers Williams
District Attorney
Patrick Doell
Patricia Amos
Assistant District Attorneys
ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR THE STATE OF LOUISIANA/RELATOR

Addie Maguire
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue, Suite 700
New Orleans, LA 70119

COUNSEL FOR DEFENDANT/RESPONDENT

WRIT GRANTED; REVERSED

JANUARY 22, 2024

JCL Relator, the State of Louisiana, seeks expedited review of the district court’s

TGC December 15, 2023 ruling granting the motion to suppress identification filed by

DNA Defendant-Respondent, Joseph Scott (“Defendant”). For the reasons that follow,

we grant the writ and reverse the district court’s ruling suppressing the

identification.

The State called Detective John Huntington to testify at the motions hearing.

Detective Huntington related the facts uncovered in his investigation of the armed

robbery at issue in this case, including the development of Defendant as a suspect.

A photo array was prepared, which included a photograph of Defendant. Since the

victim had returned to her home out of state by the time Defendant was developed

as a suspect, the identification procedure was conducted by email. The

identification procedure was conducted by Detective Alyssa Van Lew, who was

not involved in the investigation of this case. The victim identified Defendant as

the perpetrator of the robbery.

The defense filed omnibus motions at the arraignment, which included the

following request to suppress any identification of Defendant:

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Identifications: Suppression of any out-of-court
identifications, and of subsequent in-court identifications,
is requested pursuant to the Due Process prohibition
against introducing identifications that are unnecessarily
suggestive and conducive to misidentification, Manson v.
Brathwaite, 432 U.S. 98, 112 (1977), and against
introducing the tainted fruit of such identifications;
pursuant to the Sixth Amendment right to counsel and its
analogue in Article I, § 13 of the Louisiana Constitution
of 1974; and as the fruit of violations of the Fourth
Amendment to the U.S. Constitution and Article I, § 5 of
the state constitution.

The defense subsequently filed a motion to suppress identification, which alleged

as follows:

1. Mr. Scott moves to suppress the identification
procedures conducted in this case on the following
grounds:

a. The identification is not reliable because it is the
product of an unnecessarily suggestive
identification procedure. Wade v. United States, 388 U.S. 218 (1967); Manson v. Brathwaite, 432
U.S. 98, (1977).

2. Before an in-court identification can be made of
the Accused by a witness, the court must first determine
whether the police used an impermissibly suggestive
procedure in obtaining the out-of-court identification;
and if so, whether, under all the circumstances, that
suggestive procedure gave rise to a substantial likelihood
of irreparable misidentification. See Wade v. United
States, 388 U.S. 218 (1967); Manson v. Brathwaite, 432
U.S. 98, (1977).

The State first asserts that Defendant’s motion to suppress identification

consisted entirely of boilerplate language and failed to allege specific facts that

would require the granting of relief in this case. Thus, the State argues,

Defendant’s pleading was insufficient and a hearing should never have been held

to determine the issue.

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Louisiana Code of Criminal Procedure article 703(E)(1) provides in

pertinent part that an “evidentiary hearing on a motion to suppress shall be held

only when the defendant alleges facts that would require the granting of relief.”

We have noted that “[v]ague and general legal conclusions, urged in form motions,

are inadequate to require the holding of a hearing.” State v. Snyder, 496 So.2d

1117, 1119 (La. App. 4th Cir. 1986) (citing La. C.Cr.P. Art. 703(E)(1); State v.

Thomas, 467 So.2d 883, 883 (La. App. 2d Cir.1985)). Here, Defendant’s motion to

suppress identification did not allege specific facts that would require the granting

of relief and thus failed to comply with the pleading requirements of La. C.Cr.P.

art. 703(1).

The argument in its writ application is the first instance the State has

complained about the sufficiency of the allegations in the motion to suppress

identification. No written objection to the sufficiency of Defendant’s motion was

placed in the record, nor was an answer to the motion filed. Likewise, at the

hearing on the motion to suppress identification, the assistant district attorney

representing the State said nothing about a lack of factual allegations in the motion

and allowed the hearing to go forward without objection. Accordingly, the State

failed to preserve the objection as to the sufficiency of the motion to suppress

identification for appellate review. See La. C.Cr.P. art. 841.

The State next asserts that Defendant failed to meet his burden of proof with

respect to the motion to suppress. This contention has merit.

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.

Generally, the defendant has the burden of proof on a motion to suppress an out-of-

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court identification. See La. C.Cr.P. art. 703(D). A defendant who seeks to

suppress an identification must prove both that the identification itself was

suggestive and that there was a likelihood of misidentification as a result of the

identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La. 1984). An

identification procedure is suggestive if, during the procedure, the witness’s

attention is unduly focused on the defendant. State v. Higgins, 03-1980, p. 19 (La.

4/1/05), 898 So.2d 1219, 1232-33. Even if an identification is considered

suggestive, this alone does not violate due process, for it is the likelihood of

misidentification which violates due process, not merely the suggestive

identification procedure. Id., 03-1980, p. 19, 898 So.2d at 1233.

Courts look to several factors to determine, from the totality of the

circumstances, if the suggestive identification presents a substantial likelihood of

misidentification. These factors include: (1) the opportunity of the witness to view

the defendant at the time of the crime; (2) the witness’s degree of attention; (3) the

accuracy of the witness’s prior description of the defendant; (4) the level of

certainty demonstrated at the confrontation; and (5) the time between the crime and

the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S.Ct. 2243,

2253, 53 L.Ed.2d 140 (1977).

In the case sub judice, Defendant offered no evidence that the victim’s out-

of-court identification was suggestive and that there was a likelihood of

misidentification as a result of the identification procedure. Defendant did not

present the testimony of Detective Van Lew, who conducted the lineup, nor did

Defendant introduce into evidence the photographic lineup presented to the victim

or the emails exchanged between Detective Van Lew and the victim during the

identification procedure.

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In its per curiam, the district court offered the following explanation for

granting the motion to suppress identification:

This court suppressed the identification procedure
because it found that the identification procedure was
suggestive and that there is a substantial likelihood that
the procedure led to a misidentification. Specifically, this
court is concerned by the failure of Detective Huntington
to confirm that the identification complied with NOPD
procedures, the failure of detectives to record their
conversations with the complainant before the procedure
was conducted, and the failure of NOPD to record the
actual line-up procedure.

The motion sought suppression of the identification on the basis that “[t]he

identification is not reliable because it is the product of an unnecessarily suggestive

identification procedure.” No mention is made in the motion of the NOPD

procedures regarding identifications by out-of-town witnesses or that these

procedures were not followed. Whether department policy was followed was

beyond the scope of the motion to suppress identification. Further, the State was

not put on notice that it might have to prove that NOPD procedures were complied

with in defending the motion to suppress. Compliance with NOPD procedures was

not brought up until the defense’s cross-examination of Detective Huntington. Had

the State received notice that the defense intended to raise non-compliance with

NOPD procedures regarding identifications made by out-of-town witnesses, it

could have subpoenaed Detective Van Lew and any other officer who witnessed

the identification procedure to testify at the hearing.

We find that Defendant failed to prove that the identification procedure was

suggestive and that there is a substantial likelihood that the procedure led to a

misidentification.

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CONCLUSION

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

granted Defendant’s motion to suppress identification. Accordingly, the State’s

writ is granted, and the judgment of the district court is reversed.

WRIT GRANTED; REVERSED

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