U.S. v. Sanchez, 93-2112
| Decision Date | 20 May 1994 |
| Docket Number | No. 93-2112,93-2112 |
| Citation | 24 F.3d 1259 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Jacob SANCHEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Roger A. Finzel, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.
Rhonda P. Backinoff, Asst. U.S. Atty. (Larry Gomez, United States Atty., with her on the brief), Albuquerque, NM, for plaintiff-appellee.
Before EBEL and McKAY, Circuit Judges, and VAN BEBBER, * District Judge.
Defendant was convicted of bank robbery after the United States District Court for the District of New Mexico denied his motion to suppress certain identification evidence that involved a photo array shown to the witnesses before trial. Defendant now appeals the denial of his suppression motion, claiming that the photo array used by the police to identify him as the robber violated his due process rights.
On June 30, 1992, at approximately 2 p.m., an armed man entered the First National Bank in Albuquerque, New Mexico, and robbed the bank of over $1,000. The gunman was wearing large sunglasses and a baseball cap pulled down over his forehead. The robber moved quickly, and he was in the building for approximately two to three minutes. At different points during the hearings and trial, most of the witnesses contradicted themselves as to their attentiveness and their ability to view the robber's features. For every cite to the record in the government's brief indicating that a particular witness got a "good view," the Defendant is able to point to another area of the record where the same witness claimed he or she was not able to see the robber's face during the encounter. Immediately after the event, eyewitnesses gave descriptions of the robber to law enforcement officers. The descriptions varied from white-skinned Anglo to dark-skinned Hispanic, Spanish accent to no accent, facial acne to clear complexion, and heavy facial hair to light or no facial hair. The witnesses seemed to agree that the robber was short in height--descriptions varied from 5'2" to 5'7"--and that he was probably in his late teens or early twenties.
One of the tellers and eventual witnesses, Jennifer Harriman, had a sense that the robber's visible features were familiar and concluded that he might be a customer of the bank. She remembered that the robber was young, Hispanic, and spoke in the Spanish slang popular in area high schools. She conveyed her impressions to her fellow employees, some of whom later identified Mr. Sanchez in the photo array and at trial. A few days after the robbery, Agent Olivas received a crimestopper's tip that Mr. Sanchez had committed the robbery. Agent Olivas found a 1987 high school yearbook with Mr. Sanchez' freshman picture in it. He took the yearbook to the bank and asked Ms. Harriman whether any of the forty-one students on the yearbook page "looked familiar." Ms. Harriman selected Mr. Sanchez' picture, but she testified at the suppression hearing that she had selected him because she recognized him as a customer, not as the robber. She also stated at the hearing that she soon thereafter told some of the other employee-witnesses about the officer and the yearbook, that she had selected a picture from the yearbook, and that the picture was of a prior customer of the bank as she had suspected.
A little over a week after the robbery, Agent Olivas showed a photo array containing Mr. Sanchez' picture to eight witnesses. Mr. Sanchez was the only man in the array that was a prior customer of the bank. The facts are in dispute as to whether Agent Olivas told the witnesses to select the robber or merely someone they recognized. Four of the eight witnesses selected Mr. Sanchez' picture. Three of the four witnesses who identified Mr. Sanchez' picture from the array testified against Mr. Sanchez at trial; two identified Mr. Sanchez as the robber and the third identified him as a customer of the bank.
The other evidence of guilt, besides the anonymous tip and the identifications, was Mr. Sanchez' handprint found on the glass door exiting the bank. Mr. Sanchez claimed that he had been in the bank a day or two before the robbery to cash a check, and he presented evidence that he had in fact received a paycheck at that time. He presented an expert who indicated that handprints could last for months under such conditions. Mr. Sanchez also points to evidence in the record which suggests that the robber opened the glass door with his shoulder, because his hands were full of money. The government, on the other hand, presented evidence that the glass door had been cleaned the night before the robbery. The government also contests Mr. Sanchez' assertion that the robber pushed open the glass door with his shoulder.
As previously stated, Defendant challenges the constitutionality of the photo array identifications. He alleges that the array was impermissibly suggestive, and that the circumstances surrounding the identifications were not sufficient to make them nevertheless reliable. The photo array in question contained only six pictures, one of which was of the Defendant. Defendant contends that the array was suggestive because his photograph stood out from the others and because it contained several irregularities which led the witnesses to select his picture for irrelevant reasons. Specifically, Defendant points to the fact that he was the only man in the array with his eyes closed--all of the other men had their eyes open and four of the five men were staring directly into the camera. Defendant contends that this fact is particularly important because the robber was wearing dark sunglasses that prevented the witnesses from viewing his eyes. His theory is that the witnesses avoided picking one of the other five pictures because the staring and the overall strong presence of eyes that marked those pictures made them very dissimilar to the witness' memories of the robber.
When the constitutionality of a photo array is...
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