U.S. v. Torres Rodriguez
| Decision Date | 23 June 1998 |
| Docket Number | No. Crim. 97-247(SEC).,Crim. 97-247(SEC). |
| Citation | 10 F.Supp.2d 87 |
| Parties | UNITED STATES of America, Plaintiff, v. Luis TORRES RODRIGUEZ, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Mark Irish, Asst. U.S. Atty., Criminal Div., Hato Rey, PR, for Plaintiff.
Joseph C. Laws, Federal Public Defender, Hato Rey, PR, for Defendant.
Pending before the Court is defendant Luis Torres Rodriguez's Motion to Suppress Identification and In Court Identification Testimony (Docket # 32). The Government filed an opposition to defendant's motion (Docket # 43). Defendant sought leave to reply to the Government's opposition, and did so (Docket # 44). For the reasons stated below in this Opinion and Order, defendant's Motion to Suppress Identification and In Court Identification Testimony (Docket # 32) is DENIED.
The events giving rise to the above-captioned case occurred on July 27, 1997 when Mr. Dayn R. Smith returned with his wife and two children to their Fajardo home at around 10:45 p.m. As he approached the door of his home, Mr. Smith was ordered by a male voice to "get down on the ground, get down on the ground." Mr. Smith turned around to face the assailant and saw two men, whom he described as Hispanic. One of the two men he identified is the co-defendant in the instant case, Mr. Jose A. Pagan Burgos, who had previously been an employee of Mr. Smith's and had come to his residence to do some yardwork. The man Mr. Smith identified as Mr. Pagan Burgos, with his face painted with red and white triangles, pointed a pistol at Mr. Smith and told him to open the door to his home. Mr. Smith complied with the assailant's request.
When Mr. Smith and the assailant were inside the home, the assailant demanded that Mr. Smith give him his money. Mr. Smith gave the assailant approximately $1,000 that he was carrying inside his pants pocket, which constituted proceeds from Mr. Smith's restaurant business. While Mr. Smith and the assailant were discussing whether Mr. Smith would turn off the foyer lights and accompany the assailant into the bedroom, one of Mr. Smith's children came into the house crying. Mr. Smith pushed his son out the door and back to his wife, Ms. Nancy Moon, who was waiting outside the home, along with a second Hispanic male.
While none of the family members saw the second assailant brandishing a weapon, he gestured under his windbreaker as if he were in possession of one. Ms. Moon had a clear view of the second assailant's face, which, unlike the first assailant's, was not painted, as he had made no attempt to conceal his face at that time; the second assailant stood only a few feet from Ms. Moon under the light. The second assailant, later identified by Mr. Smith and Ms. Moon as defendant Luis Torres Rodriguez, entered the house where Mr. Smith also got a clear look at his face. Then, the second assailant pulled his windbreaker jacket over his face. The first assailant demanded the keys to the family's BMW, and proceeded to rip out the telephone which was hanging on the kitchen wall. Both assailants then fled in the car.
Subsequently, co-defendant Pagan Burgos was arrested by local authorities and charged with the home invasion robbery of the Smiths' residence.
Around Labor Day of 1997, a friend of Mr. Smith and Ms. Moon told them that the second assailant, the man who turned out to be defendant Torres Rodriguez, reported to a building known as "Las Casitas" every Tuesday for parole or drug treatment. Mr. Smith and Ms. Moon have declined to identify the friend who informed them of defendant's whereabouts at that person's request, who apparently fears retaliation if his or her identity became public. Mr. Smith relayed the information to the police who told him that they would prepare and show them a line-up in the near future. Fearing that such line-up would not occur, Mr. Smith and Ms. Moon drove to "Las Casitas" on the Tuesday following Labor Day.
Mr. Smith and Ms. Moon borrowed a car with tinted windows, and Ms. Moon proceeded to immediately identify the defendant as he exited a vehicle. Mr. Smith did not immediately recognize the defendant, so he drove the car in front of "Las Casitas," apparently to get a better view of the individual. He observed the defendant talking to a security guard, and immediately recognized him as the second assailant. Upon doing that, Mr. Smith drove the car around the corner and called the Fajardo police; he then drove back to "Las Casitas" and watched the defendant until the police arrived and arrested him.
The F.B.I. subsequently took over the jurisdiction of the case, and on November 5, 1997, co-defendants Pagan Burgos and Torres Rodriguez were charged by a grand jury with violations of Title 18, United States Code, §§ 1951, 2119(1) and 2119(2).
The following day, November 6, 1997, Mr. Smith was shown five photographs, two of which depicted Pagan Burgos and Torres Rodriguez. Mr. Smith identified both defendants from their respective photographs. Ms. Moon also identified the defendants from their respective photographs.
Defendant filed the instant motion challenging the propriety of the out-of-court identification by Mr. Smith and Ms. Moon. He argues that the defendant's identification by the victims outside of "Las Casitas" was impermissibly suggestive. While the defendant does not expand much further on this argument, beyond questioning the reliability of the informant, he is requesting that the Court hold an evidentiary hearing to present evidence regarding the suppression of the identification testimony. In his reply to the Government's opposition to the Motion to Suppress, defendant, in passing, states that "[t]he court should also examine the propriety of the `photographic lineup' in this case" because of their inherent unreliability.
The Government argues, in turn, that the defendant's "reasoning for suppressing this identification is flawed because it is based only on cases which question the propriety of law enforcement arranged identification procedures." The Government argues that in cases of eyewitness identification, the remedy of suppression is invoked to deter impermissible police interference and suggestion of the witness. It argues that when, as in the present case, the police were not involved in the identification of the perpetrator, suppression is not an appropriate remedy. The Government goes on to state that "since the police were not involved, the circumstances surrounding the identification could, at best, be used to impeach the identification." It asserts that the cases cited by defendant in support of his position are inapposite, insofar as they are all referring to impermissible police procedures, and do not involve the sort of independent identification that this case poses.
In the alternative, the Government argues that even if suppression were a proper remedy when there is no police involvement in the identification, that the Court should still find that the identification was neither impermissibly suggestive nor unreliable.
Defendant requests an evidentiary hearing to present evidence regarding the suppression of the identification testimony. However, defendant does not specify what facts he is seeking to discover in such a hearing that would aid the Court in its determination of whether to suppress the identification testimony at issue. In fact, it does not appear that the facts surrounding these identifications are at issue, as the defendant's and the Government's version essentially coincide.
As recently stated by this Court, "[i]t is clear, however, that the defendant is not entitled as of right to an evidentiary hearing." United States v. Alegria, 3 F.Supp.2d 151, 153-54 (D.Puerto Rico, 1998). Furthermore, as stated by the First Circuit,
[E]videntiary hearings on motions are the exception, not the rule. We have repeatedly stated that, even in the criminal context, a defendant is not entitled as of right to an evidentiary hearing on a pretrial or posttrial motion. Thus, a party seeking an evidentiary hearing must carry a fairly heavy burden of demonstrating a need for special treatment.
United States v. Isom, 85 F.3d 831, 838 (1st Cir.1996), quoting United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993). In addition, "a criminal defendant has no absolute or presumptive right to insist that the district court take testimony on every motion." United States v. Lewis, 40 F.3d 1325 (1st Cir.1994), quoting United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.1990) (citations omitted).
In light of the above, it is clear that defendant is not entitled to an evidentiary hearing in which to present evidence regarding the suppression of the identifications at issue. Defendant has failed to meet his burden of demonstrating the need for a hearing on this matter.
In deciding whether a particular identification of a defendant should be suppressed, courts utilize a two-pronged test, as established by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972). First, the Court must determine whether the identification procedure used was impermissibly suggestive. Secondly, if the identification procedure is determined to be impermissibly suggestive, then the Court must determine if "whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Id. The Biggers court listed the following factors to be considered in deciding the second prong of the inquiry:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time...
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...such a showing, a district court may rule on a motion to suppress without an evidentiary hearing. See e.g., United States v. Torres Rodriguez, 10 F. Supp.2d 87, 90 (D.P.R. 1998) (holding that defendant had not offered sufficient evidence to entitle him to an evidentiary hearing on his motio......