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.