Constitution; Article I, Sections 19, 21, 23, 27, and 36, and Article XI, Section 2 of the. of and. A Rule 24 hearing was held on December 8,

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1 NORTH CAROLINA COUNTY IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO. STATE OF NORTH CAROLINA ) ) VS. ) ) ) Defendant. ) MOTION TO SUPPRESS TESTIMONY CONCERNING CERTAIN OUT-OF- COURT IDENTIFICATIONS AND PREVENT CERTAIN WITNESSES FROM RENDERING IN-COURT IDENTIFICATIONS, through counsel, moves this Court, pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; Article I, Sections 19, 21, 23, 27, and 36, and Article XI, Section 2 of the Constitution of the State of North Carolina; as well as statutory and jurisprudential authorities cited below; and all other applicable authority, for an order suppressing and ruling inadmissible any and all testimony concerning certain out-of-court identifications of Mr., as well as preventing certain witnesses from rendering in-court identifications. Mr. was arrested on June 4, 2009 for first degree murder in the deaths of and. A Rule 24 hearing was held on December 8, 2009, and the State announced its intention to proceed capitally against Mr.. The fundamental respect for humanity underlying the Eighth Amendment s prohibition against cruel and unusual punishment gives rise to a special need for reliability in the determination that death is the appropriate punishment in any capital

2 case. Johnson v. Mississippi, 486 U.S. 578, 584 (1988) (quoting Gardner v. Florida, 430 U.S. 349, (1977) (White, J., concurring)). It is well established that when a defendant s life is at stake, a court must be particularly sensitive to ensure that every safeguard is observed, Gregg v. Georgia, 428 U.S. 153, 187 (1976), because the penalty of death is qualitatively and profoundly different from any other sentence. See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986) ( In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different. ); California v. Ramos, 463 U.S. 992, (1983) (recognizing the qualitative difference of death from all other punishments ); Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) ( [T]he imposition of death by public authority is... profoundly different from all other penalties. ). For this reason, our system of justice must go to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out or whim, passion, prejudice, or mistake. Eddings, 455 U.S. at 118 (O Connor, J., concurring) (emphasis added). These extraordinary measures must be taken at both stages of any capital trial. Beck v. Alabama, 447 U.S. 625, 638 (1980). It is anticipated that the State will refer either directly or indirectly, through witnesses and/or law enforcement officers, to certain alleged identifications of Mr. in connection with the events that have given rise to the charges in this case. The manner in which many of those out-of-court identifications were made and the circumstances surrounding the processes of the out-of-court identifications supports the

3 granting of this Motion. Mr. expressly reserves the right to amend this Motion upon receipt of further information concerning these various out-of-court identifications. The circumstances of and procedures used in these identifications were so unreliable as to give rise to a very substantial likelihood of irreparable misidentification. The witnesses identified herein should, therefore, be prohibited from testifying about any pre-trial identification of Mr.. Moreover, because any in-court identifications of Mr. at trial would be based upon the earlier unreliable identifications or the suggestive nature of courtroom confrontations (and not upon the witnesses brief opportunity to view the perpetrator of the offense), such in-court identifications would be unreliable, as well. I. Legal Authority Throughout history, courts have warned of the unreliability of eyewitness testimony. In United States v. Wade, 388 U.S. 218 (1966), for instance, Justice Brennan noted, The vagaries of eye-witness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Id. at 228. Justice Frankfurter once wrote, What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. Id. The Court s concern and skepticism about eyewitness testimony are supported by statistics. According to The Innocence Project, Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of

4 convictions overturned through DNA testing. 1 In North Carolina, six out of seven DNA exonerations had trials in which eyewitness identification testimony played a large role in the conviction. 2 Indeed, these concerns have caused the United States Supreme Court to establish tests that an identification must pass to be admissible in court. If an identification procedure is so unnecessarily suggestive and conducive to irreparable mistaken identification, the defendant is denied due process of law. Stovall v. Denno, 388 U.S. 293, 302 (1967). It is the likelihood of misidentification which violates the defendant s right to due process, and it is this which is the basis of the exclusion of evidence.... Neil v. Biggers, 409 U.S. 188, 198 (1972). In Neil v. Biggers, the Court set forth five factors in determining whether a substantial likelihood of irreparable misidentification exists. These factors are: 1. the opportunity of the witness to view the criminal at the time of the crime; 2. the witness' degree of attention; 3. the accuracy of his prior description of the criminal; 4. the level of certainty demonstrated at the confrontation; and 5. the time between the crime and the confrontation This is according to Christine Mumma, Executive Director, North Carolina Center on Actual Innocence (Jan. 26, 2011). These exonerations include Darryl Hunt, Ronald Cotton, Dwayne Allen Dail, Joseph Abbitt, Lesly Jean, and Leo Waters.

5 409 U.S. at 198. In Manson v. Braithwaite, 432 U.S. 98 (1977), the Court reaffirmed these guidelines and stressed that reliability is the linchpin in determining the admissibility of identification testimony. Id. at 114 (emphasis added). To be sure, Counsel has been unable to find any binding precedent that requires state action in the suggestive act that results in an unreliable identification. 3 Indeed, state action should not be required to find a due process violation because the United States Supreme Court has intimated that [i]t is the likelihood of misidentification which violates the defendant s right to due process, Neil v. Biggers, 409 U.S. at 198 (emphasis added), not the suggestive act by a state agent. This is why the Court emphasized that reliability is the linchpin. Moreover, an in-court identification may be tainted by an earlier suggestive identification and therefore must be excluded. Before admitting a challenged in-court identification, the trial court must conduct voir dire to determine by clear and convincing evidence whether the in-court identification is of an independent origin and not the product of a suggestive identification. State v. Thompson, 303 N.C. 169, (1981). In making this determination, the court should consider the five factors set forth in Neil v. Biggers (listed above). Id. at 172. II. Identification by Travis Welborn was at bar on June 30, Mr. s friend was involved in an altercation with Mr. and his friends inside the bar. 3 Counsel has only been able to find binding precedent that merely recognizes that some other courts have required state action. See, e.g., State v. Freeman, 313 N.C. 539, 545 (1985) ( We note that there is some authority which intimates that impermissibly suggestive pretrial identification procedures not resulting from State action do not taint incourt identification testimony. ).

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7 suggestive and unreliable. See, e.g., United States v. Wade, 388 U.S. 218, 234 (1967) (noting that a single-suspect identification procedure can clearly convey[] the suggestion to the witness that the one presented is believed guilty by the police ); State v. Yancey, 291 N.C. 656, 661 (1977) ( Our courts have widely condemned the practice of showing suspects singly to persons for the purpose of identification. ). In State v. Knight, 282 N.C. 220 (1972), the North Carolina Supreme Court held that similar procedures were impermissibly suggestive. See also Simmons v. United States, 390 U.S. 377, 383 (1968) ( Even if the police... follow the most correct photographic identification procedures and show... pictures of a number of individuals without indicating whom [the police] suspect, there is some danger that the witness may make an incorrect identification. ); State v. Capps, 114 N.C. App. 156 (1985) (finding identification procedure impermissibly suggestive where witness was shown defendant alone in police car). In Knight, police showed the witness only one photograph and asked, We ve got a man, is this the one? Id. at 226. The court held that this was impermissibly suggestive and a conviction could not stand on this identification alone. Id. The facts of Knight and the facts here are so analogous that the same finding is warranted. News coverage showing Mr. suspect in the shooting is the same as asking Mr. s picture and identifying him as the, We ve got a man, is this the one? The fact that the news media was asking does not reduce the suggestiveness of the identification. Because the North Carolina Supreme Court has recognized such an identification is inherently unreliable and reliability is the linchpin, this impermissibly suggestive identification must be suppressed.

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10 shooting. Clearly, a witness would be more confident in making an identification when he already knows that the person is the prime suspect. Mr. v. Time between crime and identification did not make an identification until eight days after the shooting occurred, during which time there was intense media coverage of the shooting. Decreases in memory occur rapidly after a perceived event, so it is crucial to have witnesses make an identification very soon after witnessing an event to preserve accuracy. J.T. Wixted & E. Ebbesen, On the Form of Forgetting, 2 PSYCHOL. SCI (1991). For this reason, identifications should be made within a matter of minutes or hours, not days. The length of time between the shooting and Mr. s identification greatly diminishes its reliability. Additionally, according to studies, exposure to newly released information about an event can dramatically affect a witness memory of the original event. ELIZABETH LOFTUS, EYEWITNESS TESTIMONY (Harvard University Press 1996). Studies show that when a person witnesses an event and later receives information about that event, the witness will compromise his memory to conform more closely to the information that he received. Id. at This exposes Mr. s recollection to the serious risk that information that he received from news reports altered his memory of the shooting. This, coupled with the length of time between the shooting and the identification, renders Mr. s identification completely unreliable. vi. Other factors that undermine the reliability of Mr. s identification. is white, and James is black. When an eyewitness makes a cross-race identification, he is 1.56 times more likely to make a false

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14 Mr should be prohibited from making an in-court identification. First, his identification would be tainted by suggestive media coverage. Second, it would be unreliable according to the factors set forth in Neil v. Biggers. Mr. admits that he was not near the crime scene; he gave a very general description of the man getting the gun; and his in-court identification would be more than twenty months after the shooting. Further, the description of the gunman as clean-shaven and skin tone of light by no means does not accurately describe Mr. other witnesses that noted Mr. on the night of the shooting. All s facial hair that night describe him as having a light beard, and Mr. s skin tone is extremely light for an African American. Therefore, any in-court identification that Mr. would provide would be completely unreliable under the Neil v. Biggers factors and must be prohibited to afford Mr. due process. V. Identification by On the night of the shooting, enforcement. He said that he was at gave a statement to law when he saw an altercation inside the bar. After the bar staff escorted the parties involved in the altercation outside, Mr. said that another altercation ensued. Mr. started to walk toward the altercation to assist in breaking it up but stopped when he realized that the fight had ended. The patrons involved in the fight then walked around the corner, out of Mr. s sight. A couple of minutes later, Mr. saw an old model white BMW approach and start shooting. At the sound of the first shot, Mr. looked at the car and jumped on the ground. The only thing that Mr. could describe of the shooter was that he was wearing a white tee shirt. He then generally described two of the men that had been in the earlier altercation. He described one of the men as wearing a white

15 T-shirt with really light skin and a short beard or dark 5 o clock shadow and said that he believed this man was the shooter. However, just hours after the shooting, Mr. was given a lineup that included s picture and could not make an identification. On January 11, 2011, more than seventeen months after the shooting and failure to make an identification, Mr. met with detectives and the District Attorney. Mr. maintained that he never saw the shooter s face. He said that he had seen media coverage about the crime and that the suspect in the news,, was the man that he saw fighting with the bouncers at. The factors set forth in Neil v. Biggers require suppress of Mr. s later identification. Mr. admitted that he did not see the shooter s face; he only described the shooter by his shirt color; he did not describe some of Mr. s most distinct characteristics his height and unique eye color; and seventeen month lapped between the crime and the later identification. Although Mr. claimed to be sure of his later identification, he had no level of confidence during the photo lineup that happened hours after the crime because he could not identify anyone. Because Mr. could not identify Mr. on the night of the shooting and his later identification was tainted by impermissibly suggestive media reports, Mr. s identification of Mr. more than seventeen months after the shooting is completely unreliable and inadmissible. Mr. was given a photo lineup hours after the shooting occurred and could not identify anyone. In juxtaposition, Mr. s later identification was given more than seventeen months after the shooting occurred and after highly suggestive news reports identifying Mr. as

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17 Counsel for Defendant