Johnson v. State (Nev. Ct. App. – July 30, 2015)

Johnson was convicted of various criminal offenses following a trial, during which the jury was permitted to hear testimony regarding an out-of-court “show-up” identification and the victims identified him in court as the perpetrator of the offenses. In the show-up, Johnson was handcuffed, placed in front of a police car, and illuminated with a spotlight to be viewed by witnesses who then identified him as the perpetrator of the crimes.

The issue is whether the show-up was improperly conducted in violation of Johnson’s constitutional due process rights.

One evening, Raebel and Valdez were walking to a bar in downtown Las Vegas when they noticed two men, later identified as Johnson and his brother, Humes, following them. Raebel viewed the two men directly as they approached for about a second and a half while Valdez saw them through his peripheral vision for one second. Suspicious, Raebel moved her purse from her hip to the front of her body with both hands.

Without warning, Humes punched Valdez in the head, causing him to fall to the ground. At the same time, Johnson grabbed Raebel from behind, covering her mouth with one hand and gesturing with the other to indicate he was carrying a firearm. Johnson removed Raebel’s purse from her shoulder and pushed her to the ground. Raebel screamed as she fell and Johnson responded by punching her in the face. While both Raebel and Valdez lay helpless on the sidewalk, Humes demanded that Valdez give him everything and in response Valdez emptied his pockets, throwing his wallet and cell phone on the sidewalk. Valdez’ wallet was unique and easily identifiable because it was constructed entirely out of duct tape. Johnson and Humes then tried to escape by running southbound. Raebel was bruised and Valdez was bleeding from a gash in his forehead. The entire incident lasted about thirty seconds.

Within minutes, police officers from the Las Vegas Metropolitan Police Department (LVMPD) arrived at the scene. Raebel and Valdez told the police they were attacked by two black males about six feet tall, with one slightly taller than the other, and described their clothing and the direction in which they fled. Based upon those descriptions, the police issued a radio broadcast to search for two black males about six feet tall wearing dark pants and hoodies who ran southbound from the scene, with the taller male wearing a black hooded sweatshirt and the shorter of the males wearing a brown sweatshirt. The broadcast also alerted officers to look for a stolen purse, wallet, and other property.

A few moments later, patrolling officers saw Johnson and his brother emerge from an alley two or three blocks south of the crime scene and jaywalk diagonally across an intersection. The other end of the alley was a dead end blocked by a chain-link fence and shrubbery. According to the officers, Johnson was wearing a dark black sweatshirt with a hood on it and dark jeans, while his brother was wearing a black sweatshirt, but it was faded so it actually looked brown in the light and he was also wearing jeans. Deciding that the duo matched the description to a tee and suspicious as to what the two had been doing in a dead-end alley, the officers detained the men for questioning When they looked in the alley, the officers saw Raebel’s purse, car keys, some makeup containers, and Valdez’ unique duct tape wallet scattered on the ground. The officers handcuffed the two men and issued Miranda warnings to them. Officers later found Valdez’ cell phone in Humes’ pocket.

Approximately 20 to 30 minutes after the crime, officers informed Raebel and Valdez that they found people that matched the description and asked if they wanted to identify them. After agreeing, Raebel and Valdez were separately transported to where Johnson and his brother were held. On the way there, the police asked Raebel and Valdez to state if they recognized the people that would be shown to them, and instructed that a person is just as innocent as they are guilty and that it was just as important to free an innocent man as it was to identify a guilty one. While Raebel and Valdez took turns sitting inside a police car approximately 30 to 60 feet away, officers brought out Johnson and his brother one at a time in handcuffs and shined spotlights on them as they stood in front of another marked patrol car. Raebel and Valdez were separated from each other during this process to prevent them from influencing each other. Raebel immediately recognized both Johnson and his brother and informed the police that she was 100 percent certain they were the two perpetrators. Valdez felt approximately 90 percent certain about Johnson’s identity, but did not recognize Johnson’s brother at all.

Johnson and Humes were charged with one count of conspiracy to commit robbery, two counts of robbery, and one count of battery with intent to commit a crime. Humes would later enter a plea of guilty to various charges, but Johnson chose to proceed to trial.

During the trial, the jury was apprised of the out-of-court show-up identification during which Johnson was affirmatively identified as one of the perpetrators by both Raebel and Valdez. Additionally, both Raebel and Valdez testified at trial and identified Johnson in court as one of the perpetrators. The jury convicted Johnson on all counts. Johnson appealed.

On appeal, Johnson argued, among other issues, that the show-up identification was conducted in an unnecessarily suggestive and therefore unconstitutional manner, and the trial court should not have admitted either testimony describing the show-up identification or the victims’ in-court identification of him during the trial.

At trial, Johnson did not object to either the show-up identification or the trial testimony relating to it. Consequently, the scope of the Nevada Court of Appeals review was narrowly limited to determining whether plain error occurred. In particular, the Court examined (1) whether there was error, (2) whether the error was plain or clear, and (3) whether the error affected the defendant’s substantial rights.

Show-up identification procedures

The Court explained that when a witness testifies that he knows a particular suspect committed a crime because he personally saw the crime as it occurred and then at a different time and place recognized the suspect to be the same person he previously saw, he is said to have performed an “identification” of the suspect. Witnesses can be asked to identify a suspect either outside of the courtroom prior to the trial during the initial police investigation of the crime, or later during the trial itself (or both). Both in-court and out-of- court identifications can be challenged by the defendant.

Out-of-court pretrial identifications are typically conducted through a number of common methods, including asking the witness if the perpetrator is one of several people lined up together in the same room (commonly called a “physical line-up”); showing the witness an array of facial photographs and asking if the perpetrator is among them (commonly called a “photographic line-up”); or, as in this case, by presenting a single suspect (or a very small group of potential suspects) to the victim soon after a crime is committed and inquiring if that person is the perpetrator (commonly known as a one-on-one “show-up” identification, a “confrontation,” or a “field identification”).

The Court explained that whichever method is used, the Due Process Clause of the United States and Nevada Constitutions forbids a criminal prosecution to be based upon any witness’s identification that was procured under circumstances that were unnecessarily suggestive and likely to have resulted in a mistake that cannot be repaired. The Constitution prohibits these suggestive and mistaken identifications whether they occurred outside of the courtroom before trial or during a criminal trial itself when a witness identifies the defendant from the witness stand. In some instances, when a witness participated in a pretrial identification procedure that was extremely unreliable, courts have concluded that the witness’s memory may have been so contaminated that a later in-court identification of the same suspect may also be precluded. Thus, an in-court identification of the defendant during trial can be challenged in two ways, either because the in-court identification is itself improper, or because it was contaminated by an improper out-of-court identification that occurred before trial.

The Court noted that in this case, Raebel and Valdez identified Johnson as the perpetrator in a pretrial show-up. During the trial, Raebel and Valdez described the pretrial show-up and also identified Johnson again in court as the perpetrator. Johnson challenged both the in-court and out-of-court identifications, but only contended that the in-court identification was improper because it was tainted by the prior show-up identification. Therefore, the Nevada Court of Appeals focused upon the validity of the out-of-court show-up.

In Jones v. State, 95 Nev. 613, 600 P.2d 247 (1979), the Nevada Supreme Court has held that show-ups are inherently suggestive because it is apparent that law enforcement officials believe they have caught the offender. The Court explained that such show-up identifications are nonetheless permissible when the totality of the circumstances surrounding the identification demonstrate that they are reliable. The question is whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that due process was denied to the defendant. If it was not, the witness’s identification is admissible during a criminal trial and the jury may examine its credibility and reliability.

The Court noted that even though the Due Process Clause may theoretically bar an overly suggestive identification whether it occurred before trial or during trial, courts review the validity of identifications under different legal standards depending upon when and how they occurred. Because the show-up identification of Johnson in this case occurred outside of court and preceded the filing of any formal charges, the Court’s inquiry involved two questions: (1) whether the show-up procedure was unnecessarily suggestive, and (2) whether the identification was nonetheless reliable in spite of any unnecessary suggestiveness in the identification procedure.

The Court explained that it based its answers to both questions upon a review of the totality of the circumstances. Those circumstances included examination of any countervailing policy considerations that might justify an otherwise problematic identification, including such factors as the presence or absence of any exigent circumstances, the need to quickly clear any incorrectly detained suspects so that police can continue searching for the true culprit, the freshness of the witness’s recollection, and the possibility that memories might start to fade if other procedures were to be employed.

Was the show-up unnecessarily suggestive?

Johnson alleged that the show-up procedures utilized in this case were unnecessarily suggestive, and that no countervailing policy considerations exist to justify the procedures the police chose to employ. Specifically, Johnson contended that because he was wearing handcuffs and spotlighted in front of a marked police car during the show-up, the circumstances strongly implied to Raebel and Valdez that the police had already arrested the perpetrators of the crime based on other evidence, and Raebel and Valdez were therefore implicitly pressured to corroborate the police work already done. Johnson did not object at trial and raised these arguments for the first time on appeal.

In seeking reversal of his conviction, Johnson relied principally upon Bias v. State, 105 Nev. 869, 784 P.2d 963 (1989), in which the Nevada Supreme Court held that a show-up was unnecessarily suggestive where the defendant was handcuffed, placed in front of a police car, and illuminated with a spotlight to be viewed by witnesses who then identified him as the perpetrator of the crimes. The show-up was conducted four hours after the crime, under conditions in which no exigency existed. The Nevada Supreme Court concluded that this show-up procedure was unnecessarily suggestive because there were no countervailing policy considerations to justify it. The Bias court nonetheless affirmed the conviction because the identification was deemed sufficiently reliable.

In Gehrke v. State, 96 Nev. 581, 613 P.2d 1028 (1980), approximately 45 minutes after the incident, eyewitnesses were escorted by an officer to the defendant’s home where they were told the police had a suspect in mind. The police placed the defendant in front of the headlights of a police car. The two eyewitnesses were seated together in the back seat of the police car, where their initial reaction, whether correct or not, could be reinforced. The Nevada Supreme Court concluded that due to the lack of exigent circumstances, the identification procedure was unnecessary.

The Court in this case noted that determining whether a particular show-up was unnecessarily suggestive turns not on general principles, but rather upon the particular circumstances surrounding the identification. The Court explained that in this case, even though Johnson was handcuffed and spotlighted, several other circumstances demonstrated that the show-up was not unduly suggestive when considered as a whole, and therefore the show-up in this case was unlike those in Bias and Gehrke. In this case, Raebel and Valdez were specifically cautioned that it was just as important for the show-up to exonerate innocent people as it was to implicate guilty ones. Additionally, during the show-up, Raebel and Valdez were separated and not allowed to talk to each other while they each independently viewed Johnson and his brother. The Court reasoned that neither of these circumstances occurred in Bias or Gehrke. In Gehrke, the two eyewitnesses were seated together in the back seat of the car, where their initial reaction, whether correct or not, could be reinforced. Moreover, the witnesses in Bias and Gehrke were never directed that an important purpose of the show-up was to free the innocent and not merely to blindly confirm the suspicions of the police whether true or not. To the contrary, in Gehrke, the witness was merely told that the police had a suspect in mind and no other instructions were given. In Bias, the witness was simply asked “if the black guy was the one.” Thus, the Court believed that the circumstances of the instant case reflected that the police took substantial steps to ensure that Raebel and Valdez were not unduly pressured into a false or mistaken identification.

The Court further explained that even if the show-up contained elements of suggestiveness, strong countervailing policy considerations existed in this case that justified the officers’ decision to attempt a show-up rather than another form of identification. The show-up was conducted within half an hour of the crime, while the victims’ memories were still fresh. The Court reasoned that the crime was violent and occurred in the open on the streets of Las Vegas; had the police mistakenly detained the wrong people and employed a more time-consuming method of identification before clearing the suspects and resuming their search, the true criminals could have committed additional violent offenses against other unsuspecting victims in the meantime or escaped apprehension entirely. Furthermore, Johnson suggested he had a firearm during the robbery. While no firearm was ultimately recovered, his claim to have had one on him underscored the need to find him quickly before he could endanger other victims. Thus, the Court believed that the decision to employ a show-up rather than another more onerous method of identification was warranted under the exigencies that existed in this case.

Therefore, the Court concluded that the confrontation in this case was not unnecessarily suggestive, and any suggestiveness that might have existed was counterbalanced by important policy considerations justifying the show-up.

Reliability of the identification

The Court explained that even if the procedures employed here could be said to have been suggestive, suggestiveness by itself did not necessarily preclude the use of identification testimony at trial if the identification was otherwise reliable. The Court clarified that when assessing admissibility, reliability rather than suggestiveness is the main concern. Reliability is measured by: (1) the opportunity of the witness to view the suspect at the time of the crime, (2) the degree of attention paid by the witness, (3) the accuracy of the witness’s prior description, (4) the level of the witness’s certainty demonstrated at the confrontation, and (5) the length of time between the crime and confrontation.

The Court pointed out that Raebel testified that she had a clear opportunity to view the two suspects for about a second-and a-half as they approached her prior to the crime, and paid special attention because she sensed danger. She then remained in close physical proximity to her assailants for another 30 seconds as the assault took place. Valdez testified that, prior to the crime, he only viewed the suspects for a second through his peripheral vision, but had more opportunity to see them as they assaulted him over the next 30 seconds. Raebel and Valdez were in close proximity to their attackers and were asked to conduct the show-up within about 30 minutes after the crime while the incident was still fresh in their minds. At the show-up, Raebel immediately recognized both suspects with 100 percent certainty. Valdez immediately recognized Johnson with 90 percent certainty.

Moreover, the Court explained that prior to the show-up, Raebel and Valdez accurately described the race, gender, and height of the suspects they later positively identified, and provided descriptions of the color of their clothing accurate enough that, within minutes, the police found suspects who fit the description “to a tee.” Raebel and Valdez informed officers that the two perpetrators fled south on foot, and police found Johnson and Humes minutes later on foot two or three blocks immediately south of the crime scene disposing of the victims’ property. Additionally, Valdez’s cell phone was discovered in Humes’s pocket.

Under these circumstances, the Court concluded that the identification of Johnson, both in court and during the pretrial show-up, were reliable and not mistaken. Consequently, the Court concluded that the district court did not commit plain error when it permitted the jury to hear testimony regarding the victims’ identification of Johnson both before and during trial.

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