391 F.3d 949 (8th Cir. 2004), 04-1028, United States v. Martin

Docket Nº:04-1028.
Citation:391 F.3d 949
Party Name:UNITED STATES of America, Appellee, v. Rodricho MARTIN, Appellant.
Case Date:December 14, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 949

391 F.3d 949 (8th Cir. 2004)

UNITED STATES of America, Appellee,

v.

Rodricho MARTIN, Appellant.

No. 04-1028.

United States Court of Appeals, Eighth Circuit

December 14, 2004

Submitted: Sept. 14, 2004

Page 950

[Copyrighted Material Omitted]

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Dale E. Adams, argued, Little Rock, AR, for appellant.

John Ray White, argued, Asst. U.S. Atty., Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, BEAM, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Rodricho Martin appeals his convictions for interference with interstate commerce by threats or violence, in violation of 18 U.S.C. § 1951, and for use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Martin argues that the district court 1 erred in (1) admitting unreliable eyewitness identifications, (2) excluding the testimony of his expert on eyewitness identifications, (3) failing to declare a mistrial because of two alleged violations of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and (4) prohibiting his attorney from arguing that a witness avoided a mandatory life sentence by testifying. We affirm.

I. BACKGROUND

On March 29, 2002, David Michael, the proprietor, and Gene Clay, an employee, were working at Michael Motor Company, a used car dealership in Pine Bluff, Arkansas. Around 10:00 or 10:30 a.m., three men entered the dealership and asked Michael about purchasing and financing a car. The three men then left.

Later that day, they returned. Larry Taggart and a man later identified as Rodricho Martin accompanied Michael into the business office to complete credit documents while the third man, Jason Taggart, remained in the car lot. Once inside, Larry Taggart first discussed his creditworthiness with Michael and then excused himself to use the restroom. Upon his return, Taggart hit Michael on the head with a handgun and knocked him from his chair. The other inside assailant, Martin, began fighting with Michael. The assailants struggled with Michael over a cash box and telephone. At that point, Martin told Taggart to shoot Michael. Michael grabbed at the gun in Taggart's hands. The gun discharged into the ceiling, and Martin and Taggart ran from the office. Michael was not shot, but he suffered hearing loss from the gun discharge.

The Pine Bluff Police Department's investigation led to Jason and Larry Taggart. Both Michael and Clay identified Jason Taggart in a photographic spread on April 1, 2002. Michael also identified Larry Taggart, but Clay did not. The next day, police arrested both Taggarts, who confessed to their involvement in the robbery

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and implicated Martin as the third suspect.

Based on the Taggarts' statements, Detective Henry Hudspeth and other police officers went to Martin's home and left a business card with a note asking him to come to the police station. Martin appeared at the Pine Bluff Police Department on April 2, 2002. An officer took a Polaroid photograph of Martin to be used in a photographic spread shown to Michael and Clay. However, Martin refused to exhibit a straight face for the camera and kept "bugging his eyes, making funny or strange faces with his mouth and all." Later that day, police showed the resulting photograph to Michael and Clay in a six-picture photographic spread. Both Michael and Clay stated that the picture of Martin resembled the third suspect, but neither were sure because Martin's facial contortions distorted his appearance.

In August 2002, four months after the crime, police obtained a normal picture of Martin from an Arkansas State Police database. Using the undistorted photograph of Martin, they showed Michael and Clay another six-picture photographic spread. Both Michael and Clay identified Martin without hesitation in this spread. Martin's photograph was the only one to occur in both of the photographic spreads shown to Michael and Clay.

A grand jury indicted Martin for one count of interference with interstate commerce by threats or violence, in violation of 18 U.S.C. § 1951, and one count of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). A jury convicted Martin of both counts. The district court sentenced Martin to consecutive prison terms of 63 months on Count 1 and 120 months on Count 2, followed by three years of supervised release.

II. DISCUSSION

A. Eyewitness Identifications 2

Martin argues that the pretrial photographic spreads from which Michael and Clay identified him as the third robber were irreparably unreliable, rendering the resulting eyewitness identifications inadmissible violations of due process. He contends that presenting two spreads that shared only his picture was impermissibly suggestive and that neither Michael nor Clay should have been allowed to identify him as the third suspect. We disagree.

This court reviews determinations of admissibility of evidence for abuse of discretion. United States v. Kehoe, 310 F.3d 579, 590 (8th Cir. 2002). To determine whether the identifications by Michael and Clay were unreliable, this court employs the two-step analysis of Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir. 1984). Martin must first establish that the photographic spreads shown to Michael and Clay were "impermissibly suggestive." Id. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). If the spreads were impermissibly suggestive, "the second inquiry is whether, under the totality of the circumstances of the case, the suggestive confrontation created 'a very substantial likelihood of irreparable misidentification.' " Graham, 728 F.2d at 1541 (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).

The photographic spreads used to identify Martin were not impermissibly

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suggestive. In Armstrong v. Gammon, 195 F.3d 441 (8th Cir. 1999), this court held that an out-of-court identification based on two six-person photographic spreads sharing only a picture of the defendant was not impermissibly suggestive and that the corresponding in-court identification was not unreliable. Id. at 445 (citing United States v. Johnson, 56 F.3d 947, 954 (8th...

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