Morales v. United States

• Citation: 248 A.3d 161
• Decision Date: 08 April 2021
• Docket Number: No. 18-CF-734,18-CF-734
• Parties: Cesar MORALES, APPELLANT, v. UNITED STATES, APPELLEE.
• Court: Court of Appeals of Columbia District

248 A.3d 161

Cesar MORALES, APPELLANT,

v.UNITED STATES, APPELLEE.

No. 18-CF-734

District of Columbia Court of Appeals.

Submitted April 23, 2020

Decided April 8, 2021

Richard S. Stolker was on the brief for appellant.

Jessie K. Liu, Washington, United States Attorney at the time the case was submitted, and Elizabeth Trosman, Monica Trigoso, and Steven B. Snyder, Assistant United States Attorneys, were on the brief for appellee.

Before Easterly and Deah l, Associate Judges, and Fisher, Senior Judge.^*

Opinion by Senior Judge Fisher, dissenting in part, at page 186.

Deahl, Associate Judge:

This appeal raises a challenge to the government eliciting an in-court identification. The salient facts are: (1) a police officer caught a two-to-three second glimpse of a fleeing suspect's face more than four months before trial, (2) the officer did not identify the defendant before trial—no show-up, lineup, photographic array, or any other type of pretrial identification procedure was conducted—but (3) on the cusp of trial, the prosecuting attorney handed the officer a single mugshot of the defendant to study "in preparation for this case." With that backdrop, defendant Cesar Morales moved to preclude the government from attempting to elicit an in-court identification from the officer given the suggestivity of the pretrial mugshot display. The trial court denied the motion and permitted the government to elicit an in-court identification. Although describing it as "a close call," the court concluded that the mugshot display was not "unduly suggestive." It further reasoned that any suggestivity would not impact the reliability of an in-court identification.

We disagree with the court's assessment both as to the suggestivity of the mugshot display and as to the reliability of the officer's in-court identification. First, suggestivity is not a close call. Asking a witness on the eve of trial to inspect a mugshot of the defendant—a stranger whom he had seen only fleetingly and had never previously identified—is beyond suggestive. This was no mere hint that the mugshot was of the suspected culprit. It was an inescapable communication to that effect. We have aptly described single mugshot displays as among "the ‘most suggestive’ and therefore the ‘most objectionable method[s] of pretrial identification.’ " Patterson v. United States , 384 A.2d 663, 666 (D.C. 1978) (quoting United States v. Dailey , 524 F.2d 911, 914 (8th Cir. 1975) ). The government does not now dispute that the pretrial mugshot display was unduly suggestive.

Second, having determined the pretrial mugshot display was unduly suggestive, whether an in-court identification should have been permitted depends on whether it was nonetheless reliable despite the "corrupting effect of the suggestive" procedure. Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). That is typically true when, for example, the witness had previously identified or was well-acquainted with the defendant before being exposed to the suggestive identification procedure. See, e.g. , United States v. Brannon , 404 A.2d 926, 928 (D.C. 1979) (prior identification); Green v. United States , 580 A.2d 1325, 1327 (D.C. 1990) (named defendant beforehand and was familiar with him). No similar indicia of reliability are present here. There was no previous identification; the officer and Mr. Morales were complete strangers; and the officer's opportunity to observe the suspect was fleeting and occurred more than four months before trial. We cannot say, under those circumstances, that the in-court identification was reliable and untainted by the suggestivity of the mugshot display.

It was constitutional error to permit the officer to make an in-court identification of Mr. Morales. The government makes no argument the error was harmless, and so we reverse Mr. Morales’ convictions.

I.

A jury convicted Mr. Morales of assault with a dangerous weapon and related weapons charges¹ for a shooting that occurred on August 25, 2017. Surveillance footage from that afternoon showed two men chasing another into the Columbia Heights Metro at 14th and Irving Streets NW. As the man being chased started down the escalator, one of his pursuers fired a gun at him from close range. The shooter's target was unscathed; he left the scene and was never located. It was broad daylight and dozens of bystanders immediately fled the area in response to the shot. Right after the shooting, a police dispatcher broadcast a lookout for "possibly a Hispanic male" (the suspected shooter) and "a black male with dreads" (his companion). Officers Doran Gunnells and Alicia Weber were in the immediate vicinity and, after speaking briefly with witnesses, mounted their bicycles and began canvassing the area.

Within minutes and about three blocks from the shooting, Officers Gunnells and Weber saw two men half a block ahead of them who matched the lookout description. The officers followed them with caution, as they presumed one or both to be armed. As the two men approached the intersection of 16th Street and Park Road NW, Officer Gunnells, from a distance of ten to twenty-five feet,² directed them to show their hands. The Hispanic man "glance[d] back real quick," allowing Officer Gunnells to see his face from the front or profile for "[t]wo or three seconds," and then fled north on 16th Street.

After about five seconds of running, the suspect paused and reached into his waistband, prompting Officer Gunnells to point his gun at the man while repeating "Let me see your hands!" Undeterred and non-compliant, the man ran again and Officer Gunnells gave chase on foot. The suspect then threw a silver object into a nearby yard, and upon recognizing it as a gun, Officer Gunnells directed Officer Weber (following close behind him) to stay with it as he continued the pursuit. The chase continued for another block or two, but Officer Gunnells relented when the suspect jumped over a gate into someone's backyard. He then promptly broadcast an updated lookout for the man, describing him as "a Hispanic male, a beanie on his head, tattoos on his face and neck, and a jacket tied around his waist." Officer Gunnells estimated at trial that the total time he viewed the suspect, from the moment he first saw him to the moment he lost sight of him after jumping the fence, was "approximately sixty seconds." During those sixty seconds, he saw the suspect primarily from behind, and indicated the only view he had of the man's face came during the two-to-three second backward glance preceding the flight.

Six days later, Mr. Morales was arrested. According to evidence introduced at the preliminary hearing, but not presented to the jury, officers received "an anonymous tip" from somebody who identified Mr. Morales as the shooter, leading to further investigation and then his arrest. In the months that followed, Officer Gunnells was never asked to view a photographic array, witness a lineup, or otherwise confirm the identity of Mr. Morales as the person he chased after the shooting.

On December 21, 2017—approximately four months after the shooting and Officer Gunnells’ failed attempt to apprehend the suspect—the Assistant United States Attorney handling the trial met with Officer Gunnells in preparation for his testimony. When Officer Gunnells informed her that he could not describe the tattoos he observed on the suspect's face and neck, she showed him a mugshot of Mr. Morales and the two of them "started looking at the tattoos more closely." It was not until after this mugshot display that, in her words, she "realized, oh, I'm probably going to want to ask [Officer Gunnells] for an in-court identification." And so, about two weeks later and two days before the start of trial, she disclosed the mugshot display to defense counsel.

Defense counsel promptly filed a motion to suppress the out-of-court identification and any subsequent in-court identification by Officer Gunnells. He argued the pretrial mugshot display was unduly suggestive and gave rise to a "substantial likelihood of misidentification." As a result, defense counsel argued the government should be precluded from eliciting an in-court identification from Officer Gunnells and from introducing any account of the pretrial procedure itself. The government responded that it did not intend to elicit any details about the pretrial mugshot display, but that it did expect to ask Officer Gunnells for an in-court identification. In defense of its decision to show Mr. Morales’ mugshot to its witness, the government explained the officer "could have viewed this picture on his own" outside the prosecutor's presence, and in any event, "a person sitting next to defense counsel"—as is typical of in-court identifications—"is always suggestive" but that "doesn't affect the reliability" of the in-court identification. The trial court denied the suppression motion. It reasoned that, while it was "a close call with regard to suggestivity," the mugshot display was not unduly suggestive and, in any event, it did not "impact[ ] the reliability of the identification."

The government's case at trial consisted largely of video footage, physical evidence, and Officer Gunnells’ in-court identification. It showed the jury surveillance footage of the shooting itself—captured by a security camera at a nearby apartment complex—and surveillance footage from inside the Columbia Heights Metro Station, which showed bystanders reacting to the shooting and the suspected victim fleeing through the station's corridors. The government also introduced Officer Gunnells’ body-worn camera footage, and after doing that, asked him if the individual he had chased was in the courtroom. He responded affirmatively and identified Mr. Morales over defense counsel's repeated objection. The government also introduced Officer Weber's body-worn camera footage. Notably, it did not attempt to elicit an in-court identification from her, despite her proximity to Officer...