APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT
ORLEANS PARISH NO. 527-904, SECTION "B" Honorable
Tracey Flemings-Davillier, Judge
A. Cannizzro, Jr. District Attorney, Parish of Orleans Scott
G. Vincent Assistant District Attorney, Parish of Orleans
COUNSEL FOR RELATOR/STATE OF LOUISIANA
Chernow Jerry Settle OPDLA COUNSEL FOR RESPONDENTS
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Paula A. Brown
A. BROWN JUDGE
State seeks supervisory review of the district court's
November 5, 2018 judgment, which granted the motions to
suppress identification filed on behalf of Defendants, Will
Newsome and Aaron Henderson, and found no probable cause.
Finding no abuse of the district court's discretion, we
grant the State's writ application, but deny relief
and Procedural History
January 15, 2016, the State charged Defendants with armed
robbery with a firearm and aggravated flight from an officer,
respective violations of La. R.S. 14:64.3 and La. R.S.
14:108.1; additionally, Defendant Newsome was charged with
possession of a firearm by a convicted felon, a violation of
La. R.S. 14:95.1. Defendants pled not guilty. Thereafter,
attorneys for Defendants filed pre-trial motions, including a
motion to suppress and a motion for preliminary examination.
The district court held the motion to suppress and probable
cause hearings on October 31, 2018 and November 5, 2018.
the hearing, Detective Chad Cockerham testified that on
November 19, 2015, the New Orleans Police Department
("NOPD") investigated a reported armed robbery that
occurred at approximately 8:30 p.m. in the 800 block of
Forstall Street. The victim, Lester Frey, reported that he
was robbed by two males who fled the scene in a blue two-door
Honda Accord, with damage to the front passenger side.
Detective Cockerham relayed the victim told him that the
Honda approached him as he walked down the 5400 block of
Royal Street. The victim saw a light-skinned black male in
the passenger seat as the vehicle passed. After the victim
turned onto the 800 block of Forstall Street, a dark-skinned
black male subject with dreads approached him. The
dark-skinned black male walked on the other side of the
street, then crossed the street, produced a silver and black
handgun and demanded the victim's money. The victim said,
"whoa, whoa, whoa, don't shoot." Another
subject, a light-skinned male, appeared and rummaged through
the victim's pockets, removing cash and keys. After
removing his property, the subjects fled in the Honda.
Cockerham clarified the victim "stated that the subject
in possession of the firearm was a dark-skinned black male
with braided hair" and "specifically stated that
the subject had on either a black T-shirt or a black
sweatshirt, unknown bottoms" and was "approximately
six feet in height." Detective Cockerham said the victim
described the light-skinned subject as between five-seven and
five-eight in height and "believed that that subject as
well had on . . . [a]dark-colored shirt or sweatshirt"
and unknown bottoms.
Cockerham relayed that other NOPD officers gave chase to the
Honda and its occupants after the report of the robbery.
After the car came to a rest, several suspects fled the
vehicle near the 5400 block of North Rampart. The officers
set up a one-block perimeter at that location. They detained
three subjects, later identified as Albert Hagan, Tyrone
Holmes, and Defendant Newsome, who were walking in an open,
grassy lot inside the perimeter. Defendant Henderson and
another subject, Montel Lassassier,  were detained at another
location outside the perimeter-in front of a residence
located in the 5400 block of Burgundy. Detective Cockerham
also confirmed that sometime after the detention of the
subjects, the NOPD received 911 calls from a resident within
the perimeter who reported noise from unknown persons
emanating from under her house.
Defendant Henderson, Defendant Newsome, and the other
subjects had been taken into custody, Detective Cockerham
relocated to the area where the subjects were being detained
to view them. Detective Cockerham, upon viewing the five
subjects, concluded that Defendant Newsome and Defendant
Henderson matched the victim's physical descriptions.
Detective Cockerham then spoke with the victim and
"elected to have the victim relocated to Flood and
Rampart Street for [him] to do a show-up
identification." Detective Cockerham told the victim
that he intended to take him to see if he recognized a
vehicle; and after that, to see if the victim recognized two
individuals. He said that they were going to the 5400 block
of Rampart, the location where two subjects had fled from the
Honda during the police pursuit. Detective Cockerham also
admitted he informed the victim "that the robbers who
robbed him had actually attempted to rob another man in the
same area" that evening.
victim immediately identified the Honda. Detective Cockerham
then radioed for an officer to bring out Defendant Newsome.
Detective Cockerham told the victim that he was going to show
him someone that matched somewhat the description he gave
based on the "twists" in the suspect's hair.
Defendant Newsome was hand-cuffed, placed about ten feet in
front of a police cruiser, and stood next to a police
officer, with his face illuminated by light from a nearby
residence and the police utilizer spotlight. When asked if
the victim said "it looks like him" before
identifying Defendant Newsome as the dark-skinned subject who
approached him with the firearm, Detective Cockeram testified
he could not recall.
Defendant Newsome's identification, Detective Cockerham
had the police bring out Defendant Henderson. Defendant
Henderson was viewed under conditions similar to Defendant
Newsome. The victim identified Defendant Henderson as the
light-skinned subject who rummaged through his pockets. Akin
to Defendant Newsome's identification, Detective
Cockerham could not recall any statements the victim made
upon his identification of Defendant Henderson.
cross-examination and after being shown body camera footage,
Detective Cockerham admitted the victim told him during the
show-up identifications that one of the robbers had something
tied around his face during the offense. Detective
Cockerham could not recall which robber the victim referenced
as having his face covered, he did not question the victim
about this statement, nor was the statement included in his
initial or supplemental report. Detective Cockerham also
acknowledged that several light-skinned black men were
involved in both robbery incidents.
Cockerham did not present the other three detainees to the
victim for identification, nor could he recall what they wore
or provide a description of them. Because Defense counsel
asserted some subjects were "darker-skinned" than
Defendant Newsome, he later asked the district court to take
judicial notice of Defendant Newsome's booking
photograph-the booking photo showed the color of Defendant
Newsome's skin and revealed he was wearing a black
buttoned-down shirt, not a black t-shirt or black sweatshirt
that Detective Cockerham said the victim had
Cockerham testified that the black and silver handgun
recovered near the Honda after the chase tested negative for
Defendant Newsome's DNA. He also confirmed the police did
not recover cash or any other items taken from the ...