Scenario (People v. Kirby)

It is your choice to represent either the prosecution or the defense.

Review the materials provided in the People v. Kirby (motion to suppress, photo array, and hearing transcript) with the goal of analyzing one or more the following questions:

1. Did the identification procedures violate defendant's right to counsel?

2. Did the identification procedures violate defendant's due process rights?

Determine the strongest point(s) on one or more of the above questions from the perspective of the side of the case you are representing (prosecution or defense) and identify potential weaknesses.

Note:This scenario was designed to provide potential arguments for both prosecution and defense, but it is nearly impossible to analyze a scenario that is perfectly balanced between both sides. Your task is to identify the strongest possible points in favor of the party you are representing as well as potential weaknesses.

Transcript of the hearing on Defendant Wade Kirby's Motion to Suppress

Wednesday, January 14, 2022

The matter of People of the State of Mason v. Defendant Wade Kirby, case number 22-CR-359, came before the Honorable Carl Bricker, Judge of the Superior Court of Mason, County of George.

THE COURT: Good morning, ladies and gentlemen. Okay. For the record, this is People of the State of Mason v. Wade Kirby. Good morning, Ms. Foster. Mr. Ashford, you have a few motions for us today? Enter your appearances for the record.

MS. FOSTER: Margaret Foster for the People of Mason.

MR. ASHFORD: Connor Ashford for Mr. Wade Kirby, the Defendant herein.

THE COURT: I noticed in your papers that you have a motion in limine about the use of an expert witness, as well as your motion to suppress. Mr. Ashford, that motion may be premature. So I am not going to hear evidence on that matter until after I decide on your main motion.

MR. ASHFORD: Thank you, Your Honor.

THE COURT: Ms. Foster, go ahead and call your first witness.

MS. FOSTER: The People call Detective Raymond Sergio.

Detective Raymond Sergio was called as a witness, being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MS. FOSTER: Detective, would you please state your name for the court and spell your name for the court reporter?

A. Raymond Sergio, S-E-R-G-I-O.

Q. You currently serve as a detective with the George City Police Department, is that correct?

A. Yes.

Q. How long have you held that position?

A. For five years.

Q. And how long have you been with the George City Police Department?

A. Since 2010.

Q. Let me take you back to April 6, 2021. Were you assigned to investigate a report of an armed robbery at the Osteria Tres Porcellini?

A. Yes.

Q. Can you tell us what you learned . . . well, let me back up a second. You did investigate the reported crime?

A. Yes. I was not the first member of the department on the scene. A couple of black and whites had already arrived.

Q. You mean officers on patrol?

A. Yes. They responded to the 911 call and had secured the scene.

Q. And when you got there, what did you do?

A. I should tell you that I was there with Detective Martina Falcn as well. There were seven or eight people in the restaurant, or they were still there. I think that some folks ran away during the robbery. But seven or eight people were still there and had lost something in the robbery.

Q. And you interviewed them?

A. Falcn interviewed some of them.

Q. What did you learn from the witnesses?

MR. ASHFORD: Objection. Ms. Foster is moving into hearsay.

THE COURT: Overruled.

MS. FOSTER: Do you need the question read back?

A. No. I took descriptions of the suspect from three witnesses, including Anthony Alteri, the owner of the restaurant, and two patrons. One was Lew Levine; the other was Johnny Omar. Their descriptions of the perpetrator were pretty similar?older guy; Caucasian, balding, 6-foot, 180 pounds, facial hair.

Q. Did they tell you anything else about the suspect?

A. Oh, yes. He carried a gym bag and told them to put all of their belongings in the bag.

Q. Did you and Detective Falcn compare notes at any point; I mean did the victims she interviewed give a similar description?

MR. ASHFORD: Objection. This calls for obvious hearsay.

THE COURT: Ms. Foster, is the Detective going to testify?

MS. FOSTER: Yes.

THE COURT: I am going to allow the testimony. If there is a problem afterwards, I will ignore the evidence.

MS. FOSTER: Thank you, Your Honor. Detective, so you compared notes with Detective Falcn?

A. Yes. The four folks she talked to all came up with a similar description.

Q. At that point, what did you do?

A. I was pretty sure I knew who the perpetrator was based on the description. I busted the defendant here before, for robbery, always the same kind of MO.

Q. But what did you do after you took the statements?

A. I called back to the stationhouse and asked the duty sergeant to organize a photo array and to include the defendant's photograph.

Q. Did you keep that photo array?

A. I did.

Q. Before I ask you to show it to the court, did you direct the duty sergeant how to select the pictures in the photo array?

A. I told him to pick out older white guys, skinny, with facial hair. I told him to match the defendant as closely as possible.

MS. FOSTER: Your Honor, Mr. Ashford has already been provided with a copy of the photographs. I don't think that he objects to their introduction into evidence.

MR. ASHFORD: No objection, Your Honor. Of course, that does not mean that I agree that the array was a fair one.

THE COURT: Of course, that is understood.

MS. FOSTER: Detective, what happened next?

A. One of the patrol officers went back to the station to pick up the photo array.

Q. And once you had the photo array, what did you do?

A. I showed it to Alteri, Levine and Omar. Falcn and I agreed that the other people could leave and that we would get hold of them if we needed them.

Q. Did they identify the defendant?

A. Without difficulty, they sure did.

Q. Did you admonish, I mean warn the witnesses about any risks at this point?

MR. ASHFORD: Objection. The question is so broad; I am not sure what it means.

THE COURT: Well, I am pretty sure that the Detective knows. Overruled.

A. Sure. We tell witnesses the importance of getting the right person. We have no interest in arresting innocent people. So we tell people not to fake or force an ID. Like here, some of the folks just couldn't do it.

Q. Based on the statements that Misters Alteri, Levine and Omar made, what happened next?

A. I went home and went to bed.

Q. Nothing else that night?

A. I asked Detective Falcn if she would get a warrant to arrest the defendant and told her that I would meet her in the morning so that we could pick up the defendant.

Q. Did you pick up the defendant the next day?

A. Actually, I did not.

Q. Oh. Nothing else for now, Your Honor.

CROSS EXAMINATION BY MR. ASHFORD: Good morning, Detective.

A. Hi.

Q. When you conducted your interview of Alteri, Omar and Levine, . . . wait, let me back up a second. Do you remember the time when you finished up on the evening of April 6?

A. Probably around 10:30 or 11:00.

Q. And the original 911 call came in at 9:00, correct?

A. Yes.

Q. And you did not respond to the 911 call, did you, not right away?

A. That's right.

Q. So you were at the restaurant for maybe an hour or an hour and a half at the longest, if my calculations are correct, isn't that correct?

A. I guess so; you did the calculations.

Q. They are not too difficult, Detective. If you got there at 9:30 and went home around 10:30, that is one hour.

A. Yeah.

Q. So when you conducted the interview of the witnesses, they were all in same room, weren't they?

A. The Three Pigs is a pretty big restaurant.

Q. But when you were interviewing, say, Alteri, where were Omar and Levine, in hearing distance, weren't they? Or were you interviewing them all together at one time?

A. At first, all of them were together when I got there. But I asked each of them to move away so that I could interview them privately.

Q. So when one of them told you what the perpetrator looked like, the other witnesses could not hear what was being said, is that your testimony?

A. That is my testimony.

Q. Would you be surprised if the witnesses contradicted you?

A. Yes.

Q. You said that once you heard the description of the perpetrator, you were pretty sure right away that it was the defendant because the MO was unusual and similar to the defendant's MO, correct?

A. Yes.

Q. What is unusual about having victims put valuables in a gym bag? Robbers must carry their loot in something, right?

A. Sure. But in my experience, gym bags are not the normal bag of choice.

Q. Are Louis Vuitton handbags?

MS. FOSTER: Objection. Mr. Ashford is being argumentative.

THE COURT: Sustained. Mr. Ashford, you can make your point without sarcasm, can't you?

MR. ASHFORD: I am sorry.

Q. Detective, based on your training and experience, what kind of bags are typically used in robberies, ones where the perpetrator is taking bulky property from a large number of victims?

A. All sorts of bags, shopping bags are common.

Q. Detective, I am not too familiar with Tres Porcellini. Would you describe the dcor?

A. It is an Italian place; it has about ten tables. It has a bar along the western side of the restaurant.

Q. Is it well lighted?

A. I guess so.

Q. Well, wait. I saw an ad for the restaurant that said, come to Tres Porcellini for intimate dining.

MS. FOSTER: Objection. I am not sure if Mr. Ashford is testifying, but what foundation is there for his question?

THE COURT: Overruled. Detective, let me shorten the process here. Are you familiar with the restaurant and how it advertises itself?

A. I am.

THE COURT: Have you ever eaten there?

A. Yes.

THE COURT: I think that Mr. Ashford is trying to get at the lighting conditions in the restaurant. Do you have knowledge, personal knowledge, of that?

A. A little.

THE COURT: Mr. Ashford, I am getting in your way. I was trying to shorten the process, but you can get back to your cross examination.

MR. ASHFORD: You were very helpful, Your Honor. Detective, so isn't the restaurant not well lit? Isn't it dimly lit so that couples can engage in intimate dining?

A. I guess so.

Q. You didn't ask the witnesses how long the perpetrator was in the restaurant, did you?

A. I did.

Q. What was their answer?

A. Five to ten minutes, something like that.

THE COURT: Mr. Ashford, I hate to interrupt. It is getting time for a break. Are you almost done?

MR. ASHFORD: I am done. Oh, wait. One more thing, if I may ask the Detective another question?

THE COURT: Okay. You have five more minutes and then we will take a break.

Q. Detective, one thing seems odd. Usually robbers try to disguise themselves, don't they?

A. Yes.

Q. Didn't the perpetrator try to disguise himself?

A. I don't know.

MR. ASHFORD: Nothing further.

(Court recessed)

THE COURT: Thank you, Mr. Ashford and Ms. Foster. I had to deal with another matter. I think that you were both done with the Detective, am I correct?

MS. FOSTER: Yes.

MR. ASHFORD: Yes.

THE COURT: Call your next witness, Ms. Foster.

MS. FOSTER: The People call Detective Martina Falcn.

Detective Martina Falcn was called as a witness, being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MS. FOSTER: Detective, would you please state your name for the court and spell your last name for the court reporter?

A. Martina Falcn. F-A-L-C-O-N.

Q. You currently serve as a detective with the George City Police Department, is that correct?

A. Yes.

Q. How long have you held that position?

A. For three years.

Q. And how long have you been with the George City Police Department?

A. I was hired in 2014.

Q. Let me take you back to April 6, 2021. Were you assigned to investigate a report of an armed robbery at the Osteria Tres Porcellini?

A. I was, along with Detective Sergio.

Q. Do you remember what time you got to the scene of the robbery?

A. It was around 9:30 P.M.

Q. What did you do once you were there?

A. I followed Detective Sergio's instructions. He wanted to interview the three witnesses who seemed to have had the best view of the defendant. I took four victims upstairs to the business office and had three of them wait outside while I interviewed each one.

Q. What information did the victims provide you?

A. Two of them did not get much of a view of the defendant. They were frightened and tried not to look at him when he demanded their valuables, and his face was partially obscured.

Q. But two of the victims did get a good view, didn't they?

A. Generally, they did.

Q. What did they tell you?

A. They both described a tall Caucasian, maybe 6?, 6?3?, 160-190 pounds.

Q. Anything else?

A. Not that I remember.

Q. Do you remember how long you were at the restaurant?

A. Well, about an hour. Sergio was done pretty quickly and called up to me when he was done. He said that he knew who the perp was.

THE COURT: Detective, is there a reason why you stopped speaking?

A. I saw the defense attorney over there about to jump up. I didn't want to keep talking if he was going to object.

THE COURT: Oh. Mr. Ashford, you were not going to make a hearsay objection, were you?

MR. ASHFORD: No, Your Honor. I am waiting with baited breath to hear the Detective's testimony.

THE COURT: Ms. Foster, back to your witness.

MS. FOSTER: Okay, so Detective Sergio indicated that he knew who the perpetrator was and what happened then?

A. He called downtown for a photo array.

Q. And after it arrived, what happened?

A. I did, well, let me back up. Sergio told the other victims that they could go home.

Q. Why was that?

A. They did not get a great look at the guy.

Q. Okay. But their description of the suspect was consistent with the defendant's appearance, isn't that the case?

A. Definitely.

Q. Now, what did you do next in connection with this case?

A. After the owner and the two other victims identified our guy, Sergio asked me to get an arrest warrant the next morning. He had too much overtime already and needed some sleep.

Q. Did you get the warrant the next day?

A. I did.

Q. And after you secured the warrant, what did you do?

A. I knew where the defendant hung out, and I waited to spot him on the street. I arrested him when I saw him.

Q. What did you do then?

A. I took him back to the restaurant. It's just in the same neighborhood.

Q. What happened at the restaurant?

A. I called ahead and asked if the owner was there yet. And he was. So I spoke to him and told him that I had someone for him to look at.

Q. And?

A. When I got to the restaurant, Mr. Alteri was already outside, waiting for me.

Q. Did he identify the defendant?

A. He did. He came right over to the car and without hesitation, he said, that is him.

MS. FOSTER: Nothing further right now, Your Honor.

CROSS EXAMINATION BY MR. ASHFORD: Detective, I want to go back to something you said a few moments ago. You said that the four people whom you were interviewing did not get a good view of the perpetrator, isn't that correct?

A. That is correct.

Q. And you interviewed each one separately, didn't you?

A. Yes, I did. That is standard practice at the department.

Q. That is to avoid one witness influencing another, isn't it?

A. Yes, sir.

Q. Oh, and you said something about the perpetrator's face, you said that it was partially obscured, didn't you?

A. I did.

Q. Would you explain what you meant, it sounded like the perpetrator had on a disguise of some kind? That was what you meant, wasn't it?

A. One of the victims said that the defendant had a kerchief on his face but that it fell off during the robbery.

Q. Thank you, Detective. I think that I have just one or two more questions for you. It sounds like you were really careful to follow departmental procedure when you interviewed each witness separately. Do you know if Detective Sergio followed the same procedure when he interviewed the three witnesses downstairs in the restaurant?

A. I have no idea, but I assume that he would follow protocol.

Q. Oh? He was downstairs in the restaurant, wasn't he?

A. Yes.

Q. And from what I can tell and have seen going there a few times, it is a small restaurant, maybe ten tables?

A. I guess so.

Q. So when he was interviewing the three witnesses who seem ready to identify the defendant, they must have been within hearing distance of one another?

MS. FOSTER: Objection. The question calls for sheer speculation. There are no facts in evidence that allow such a line of questions.

THE COURT: Mr. Ashford, I see where you are going, but I have to sustain the objection.

MR. ASHFORD: Maybe I can clarify the matter. Okay, Detective, so to the best of your knowledge, where were the three witnesses who stayed downstairs, where were they when you went upstairs?

A. They were at the bar.

Q. They must have been upset, so maybe they were having a drink?

A. The owner was there and he offered everybody a glass of Grappa to help settle their nerves.

Q. And again, to the best of your ability and within your personal knowledge, where were the witnesses when you came back downstairs?

A. They, well, Alteri and Levine were at the bar. Omar was talking to Sergio.

Q. I appreciate your candor, Detective. So one more question. You follow protocol, as you indicated. But why didn't you follow protocol when you did a one-on-one show up of the suspect when you brought the defendant to the restaurant on morning of April 7?

A. I don't understand your question. Our protocol says we take a suspect back to the scene in a timely fashion to be sure that we have the right perpetrator and to make sure that the victim or witness's memory is still fresh.

Q. What about when it is a day later and you already have an arrest warrant?

MS. FOSTER: Objection. Even if a protocol exists, that is irrelevant to the constitutional challenge that Mr. Ashford has raised.

THE COURT: Sustained. Mr. Ashford, I thought for sure you said that you were done?

MR. ASHFORD: A few more questions, Your Honor.

THE COURT: Of course, go ahead.

MR. ASHFORD: Detective, you said that you called the restaurant and told Alteri that you were bringing someone by for him to identify, didn't you?

A. Something like that.

Q. Surely, if you recognize how suggestive your statement was, don't you?

MS. FOSTER: Objection. The question is argumentative, it is hostile, and it calls for speculation about a legal issue that is the question for the Court to decide.

THE COURT: Sustained.

MR. ASHFORD: Nothing further, Your Honor.

THE COURT: Ms. Foster, do you need any redirect?

MS. FOSTER: I am done for now. I don't have additional witnesses at this time either.

THE COURT: Mr. Ashford and Ms. Foster, is the photo array here? I assume that you both want me to look at the photo array in deciding this case?

MR. ASHFORD: I am sorry, Your Honor. I did not make a formal motion to introduce the photo array. I will do so now.

THE COURT: Ms. Foster, I assume that you have no objection?

MS. FOSTER: Of course not.

THE COURT: Mr. Ashford, do you have anything else at this time?

MR. ASHFORD: Well, Your Honor, I wonder if Ms. Foster would stipulate to Mr. Kirby's height and weight? That is part of the arrest report that is a matter of public record.

MS. FOSTER: Stipulate, Your Honor.

MR. ASHFORD: Thank you, Ms. Foster. May the record reflect that Mr. Kirby is 5? 9? in height, and he weighs 151 pounds?

THE COURT: Yes. Anything else, counsel?

MS. FOSTER: No, Your Honor.

MR. ASHFORD: I do want to raise one more concern. On this record, I think that the photo array was unduly suggestive; the police made no effort to get the defendant counsel, the one-on-one procedure was completely unnecessary and entirely suggestive. If you accept any of these arguments, I would like to show that the eyewitnesses' trial testimony should be excluded as well as their out-of-court identification.

THE COURT: We are going to adjourn. I will have my ruling after lunch. If I find for Mr. Ashford, Ms. Foster, are you ready to proceed on the other issues raised by Mr. Ashford?

MS. FOSTER: Yes, Your Honor.

IN THE SUPERIOR COURT FOR THE COUNTY OF GEORGE

STATE OF MASON

THE PEOPLE OF )

THE STATE OF MASON )

)

) Case No. 22 CR 359

)

v. )

)

WADE KIRBY, )

)

Defendant. )

DEFENDANT'S MOTION TO SUPPRESS

Defendant moves to suppress for use as evidence all eyewitness identification of the defendant: 1. On April 6, 2021, George City Police officers responded to a report of an armed robbery at the Osteria Tres Porcellini restaurant in downtown George City.

2. The officers took statements from several witnesses at the scene of the robbery. Later that evening, the officers showed photographs, including a photo of Defendant Wade Kirby, to some of the witnesses. At least some of them picked out Defendant Kirby's photograph as one of the robbers.

3. Based on that information, an officer for the George City Police Department swore out a warrant for Defendant Kirby's arrest.

4. Twelve hours later, an officer stopped Defendant Kirby as he was walking about one-half mile from the Osteria and took him back to the restaurant to be identified by the owner of the restaurant, Anthony Alteri.

5. While Defendant Kirby was handcuffed and detained in the back of the police car, restaurant owner Anthony Alteri identified Kirby as the alleged armed robber.

6. Defendant Kirby objects both to the display of photographs and to the one-on-one show-up. The display of the photographs to the alleged victims was unnecessarily suggestive and Defendant Kirby urges this court to suppress evidence relating to that identification made by any witness who witnessed the photo array. Further, the one-on-one show-up of Defendant Kirby to Anthony Alteri was unnecessarily suggestive and Defendant Kirby urges this court to suppress evidence relating to that identification.

7. Because any in-court identification that witness Alteri might make would be the fruit of the primary illegality, Defendant Kirby urges this court to prevent the prosecution from relying on that testimony.

8. Defendant Kirby also urges this court to suppress any and all eyewitness identification made by patrons of the Osteria Tres Porcellini because those identifications were the product of the violation of Defendant Kirby's right to counsel and Due Process right to fundamental fairness. 9. Alternatively, if this court finds that the prosecution may introduce evidence from any of the eyewitnesses, Defendant Kirby moves in limine that he be allowed to introduce the testimony of expert Ruth Lofton, a recognized psychologist who has studied the fallibility of eyewitness identification. Defendant Kirby moves to allow her to testify that eyewitness identification is inherently suggestive and especially so based on the facts of this case. Respectfully submitted,

s/ Connor Ashford

Connor Ashford

Attorney for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF DEFENDANT

1. Introduction

Wade Kirby was indicted for seven counts of armed robbery arising out of the April 6, 2021 robbery of Osteria Tres Porcellini.

1. Facts

At 9:00 P.M., on April 6, 2021, George City police received a 911 call from someone who stated he was the owner of a restaurant that had just been robbed. In response, the police sent several officers to the restaurant where they interviewed several patrons and the owner of the restaurant. Based on those interviews, Detective Raymond Sergio assembled a photo array that he brought to the restaurant. Under highly suggestive circumstances, the detective showed several witnesses the photos within hearing distance of one another. Not surprisingly, a number of witnesses picked out the photo of Mr. Kirby.

Based on those identifications, Detective Sergio swore out a warrant for the arrest of Mr. Kirby. At 10:00 A.M., a George City police officer arrested Mr. Kirby while he was walking near his home, more than miles from the scene of the alleged robbery. The officer took him to the restaurant, and while Mr. Kirby was handcuffed in the backseat of the patrol car, Alteri identified him as the alleged robber.

1. Argument

The practices engaged in by the George City Police Department increased the likelihood of an improper identification of Mr. Kirby as the person responsible for the April 6, 2021 robbery. The photo array and the manner in which the police showed several persons the photographs at the same time were fundamentally unfair, in violation of Mr. Kirby's Due Process rights. Further, after the issuance of an arrest warrant, Mr. Kirby should have been provided counsel at any subsequent critical stages. The one-on-one confrontation at the scene of the crime violated his right to counsel and his right to fundamental fairness guaranteed by Due Process Clause of the Fourteenth Amendment to the Constitution.

1. Conclusion

For the foregoing reasons, Mr. Kirby requests the court to suppress all of the evidence obtained as a result of the violation of Mr. Kirby's Sixth and Fourteenth Amendment rights.

Respectfully submitted, s/ Connor Ashford Connor Ashford Attorney for DefendantDiscussion Boards