U.S. v. Jones

• Decision Date: 30 December 2010
• Docket Number: Criminal Action No. 09–10048–WGY.
• Citation: 762 F.Supp.2d 270
• Parties: UNITED STATES of Americav.Daquawn JONES, Defendant.
• Court: U.S. District Court — District of Massachusetts

762 F.Supp.2d 270

UNITED STATES of America

v.Daquawn JONES, Defendant.

Criminal Action No. 09–10048–WGY.

United States District Court, D. Massachusetts.

Dec. 30, 2010.

Christopher J. Pohl, United States Attorney's Office, Boston, MA, for United States of America.Catherine K. Byrne, Federal Public Defender Office, District of Massachusetts, Boston, MA, for Defendant.

MEMORANDUM

YOUNG, District Judge.

On June 10, 2010, after a four-day trial, Daquawn Jones (“Jones”) was convicted of conspiracy to distribute crack cocaine and distribution of .62 grams of crack cocaine within 1000 feet of a school. A career offender, Jones was sentenced by this Court to 10 years in prison. A routine case? Hardly.

I. IDENTIFICATION

This case turns on the identification of Jones as the person who set up the drug transaction in question. In the constitutional sense, the identification of Jones could hardly have been more suggestive, but even a suggestive identification does not ipso facto require suppression. See Manson v. Brathwaite, 432 U.S. 98, 104, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 385–86, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 301–02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Here, defense counsel timely moved for suppression. After a thorough evidentiary hearing, the Court found that, following his standard operating procedure, Massachusetts State Trooper David Patterson (“Patterson”), a white male acting in an undercover capacity and posing as a retail drug purchaser, was roving selected areas of Brockton seeking to engage in modest drug transactions. Patterson was driving a pick-up truck specially equipped with a hidden video camera to record individuals (such as drug sellers) approaching his open driver's side window. In order for this scam to work, Patterson naturally did not know the individuals with whom he dealt nor did they know him. On a good day, Patterson could make a number of buys in this fashion. At the end of the day, Patterson turned a copy of the videotape over to Brockton police officers who patrolled the area through which he had driven to see whether, given their familiarity with the area and its inhabitants as well as local law enforcement intelligence, they could identify anyone on the videotape. Thereafter, such officers would show Patterson a single photo and ask him if he could identify the individual as a person he'd seen selling drugs at the specific time and place. Not surprisingly, using this procedure Patterson made affirmative identifications over 90% of the time.

So it was here. On June 19, 2008, Patterson was trolling for prospective drug sellers in Brockton. He set up such a transaction through a discussion with a black male who he observed across a residential street. This individual then entered the passenger side of a nearby sedan that promptly drove away, and a second individual, later identified as Johnny Richmond, approached Patterson's truck and exchanged .62 grams of crack cocaine for cash through the driver's side window. What took this transaction out of the routine was the fact that, as the first individual was approaching Patterson's truck to set up the transaction, Patterson observed another vehicle evidently patrolling this area. Reasoning that this strange vehicle could be that of a citizen vigilante or a rival gang setting him up for robbery of the cash or drugs, Patterson went on high alert. Having completed this transaction, he sped from the area. When the strange vehicle followed him, he became apprehensive and called for police back-up.¹

The videotape vividly captures Johnny Richmond approaching Patterson's driver's side window and completing the exchange. Earlier, it displays a most fleeting and out of focus image of another black male. By pausing the tape, one can discern the clothing of this individual and, based upon all the surrounding circumstances, this Court concluded a knowledgeable local police officer could make an identification of that individual. Trooper Erik Telford (“Telford”), a member of a State Police gang unit surveilling this area of Brockton, identified this individual as Daquawn Jones and later showed a single photo of Jones to Patterson, who likewise identified Jones as the individual who had set up the drug transaction in question.²

At the conclusion of the hearing of the motion to suppress, after hearing the arguments of counsel and considering all the evidence, this Court, although disapproving the procedure followed here, nevertheless, “unsupported by any literature or social science findings,” reasoned that Patterson's heightened awareness of his surroundings due to the presence of the strange vehicle, his concentration on the suspects given his mission, his proximity to the black male across the street, the well lit area, and the short time that elapsed between the observation and the identification rendered his identification of Jones reliable and not the product of the suggestive procedures followed here. Accordingly, the Court denied the motion to suppress, and at trial both Patterson and Telford testified to their observations.

At trial, however, defense counsel had sociological evidence—in spades. Defense counsel proffered the testimony of Steven Penrod as an expert in eyewitness testimony.

I have taught evidence for years and have considered this issue and raised it with my classes ever since I learned of the pioneer in this field, Elizabeth Loftus. The issue, of course, is that the sociology of eyewitness identification constitutes “reliable principles” as that phrase is used in Federal Rule of Evidence 702, but such witnesses (as here) typically have no case-specific knowledge whatsoever and seek to testify about matters upon which we have long relied on the common sense judgment of the American jury. See generally William G. Young, Reflections of a Trial Judge 130–131 (MCLE 1998). The best I could do as a teacher was to highlight the issue and point out that some judges go one way, see, e.g., United States v. Montas, 41 F.3d 775, 785 (1st Cir.1994) (Coffin, J.) (holding that expert testimony on a subject within the jury's ordinary experience has little probative value); United States v. Rahm, 993 F.2d 1405, 1413 (9th Cir.1993) (Reinhardt, J.) (concluding that areas of common knowledge are an improper basis for expert testimony); United States v. Cruz, 981 F.2d 659, 664 (2d Cir.1992) (Winter, J.) (holding that expert testimony is admissible only if the subject is, at least in part, esoteric), and some the other, see, e.g., United States v. Brien, 59 F.3d 274, 276 (1st Cir.1995) (Boudin, J.) (holding that an expert can provide background information even as to an issue within the jurors' common knowledge); United States v. Larkin, 978 F.2d 964, 971 (7th Cir.1992) (Flaum, J.) (allowing expert testimony that will help the jury to better understand the evidence); United States v. Downing, 753 F.2d 1224, 1229 (3d Cir.1985) (Becker, J.) (holding that, even if an issue is not beyond the ordinary understanding, expert testimony may help the trier of fact to understand difficult evidence).

Now, after 33 years as a trial judge, I had to resolve the issue. I did so. Here's how:

A. Legal Standard

Federal Rule of Evidence 702 ³ allows the admission of expert testimony where the witness is sufficiently qualified to assist the trier of fact, and his testimony is relevant to the task at hand and rests on a reliable basis. United States v. Stokes, 388 F.3d 21, 26 (1st Cir.2004), vacated on other grounds, 544 U.S. 917, 125 S.Ct. 1678, 161 L.Ed.2d 471 (2005) (quoting United States v. Diaz, 300 F.3d 66, 73 (1st Cir.2002)). The admission of expert testimony on eyewitness identification is a prickly matter because “[b]roadly speaking, [it] involve[s] a credibility determination within the ken of the ordinary judge and juror—unlike, say, DNA identification.” United States v. Brien, 59 F.3d at 276. While such testimony can “give the jury background information about the mechanism of memory, types of errors, error rates, and other information not commonly possessed by the jury—information that may even be at odds with what a judge or juror might expect.... [H]elpfulness is a matter of degree, and expert evidence involves costs and risks.” Id. at 276–77.

As such, the First Circuit has refused to adopt a blanket rule that qualified expert testimony on eyewitness identification must routinely be admitted or excluded.⁴ United States v. Rodríguez–Berrios, 573 F.3d 55, 71 (1st Cir.2009). Rather, trial courts must determine the admissibility of such expert testimony on a case-by-case basis, taking into consideration “the reliability and helpfulness of the proposed expert testimony, the importance and the quality of the eyewitness evidence it addresses, and any threat of confusion, misleading of the jury, or unnecessary delay.” Id. (quoting Brien, 59 F.3d at 277).

B. The Merits

In this case, the government does not challenge the qualifications of Dr. Penrod, nor the validity of the research and scientific literature upon which his testimony would be based. Rather, the government argues that the proffered testimony is inadmissible because it is within the common understanding of the trier of fact, Fed.R.Evid. 702, and further, has the potential to confuse or mislead the jury, Fed.R.Evid. 403. Meanwhile, Jones contends that the probative value of expert identification testimony outweighs concerns of delay and confusion because eyewitness testimony is the sole evidence against Jones and because Penrod's testimony defies lay perceptions regarding eyewitness identification.

At trial, the defense offered Penrod's testimony regarding the decreased accuracy of cross-racial eyewitness identifications relative to same-race identifications, the effect of stress on an individual's ability to make an accurate...