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State v. Newsome

Court of Appeals of Louisiana, Fourth Circuit

February 27, 2019



          Leon A. Cannizzro, Jr. District Attorney, Parish of Orleans Scott G. Vincent Assistant District Attorney, Parish of Orleans COUNSEL FOR RELATOR/STATE OF LOUISIANA

          Alexis Chernow Jerry Settle OPDLA COUNSEL FOR RESPONDENTS

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Paula A. Brown


         The 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 sought.

         Factual and Procedural History

         On 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.

         During 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.

         Detective 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.

         Detective 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, [1] 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.

         After 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.[2]

         The 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.

         After 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.

         During 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.[3] 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.

         Detective 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 "specifically" described.

         Detective 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 ...

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