UNITED STATES OF AMERICA,
Plaintiff,
v.
JASPER J. PENEAUX, JR.
and Christopher R. Prue,
Defendants.
[2008 DSD 4]

United States District Court
District Of South Dakota--Central Division
CR. 07-30061

REPORT AND RECOMMENDATION
CONCERNING MOTIONS TO
SUPPRESS PHOTO IDENTIFICATIONS

Edward G. Albright, Jana M. Miner
Federal Public Defender's, Pierre, SD
Attorneys for Defendant Peneaux.

David W. Siebrasse, Siebrasse Law Office, P.C., Pierre, SD
Attorney for Defendant Prue.

Jeremy R. Jehangiri, Randolph J. Seiler
U.S. Attorney's Office, Pierre, SD
Attorneys for Plaintiff.

Filed January 22, 2008

Moreno, Mark A., United States Magistrate Judge

[¶1] Defendants, Jasper J. Peneaux, Jr. and Christopher R. Prue (referred to herein by name or collectively as "Defendants"), have filed Motions to Suppress Evidence of Photo Lineups conducted at the Rosebud Police Department on November 19 and 22, 2006. Docket Nos. 33, 42. Plaintiff, United States of America (hereinafter "Government"), has filed written Responses to both Motions, resisting the same. Docket Nos. 37, 44. On January 3-4, 2008, a hearing was held on the Motions at which four witnesses testified and two exhibits were received into evidence. Because the Motions are dispositive ones, this Court is only authorized to determine the same on a report and recommendation basis. See 28 USC §636(b)(1). After careful review of the evidence and testimony presented, and based on the credibility of the witnesses who testified, the Court does now make and propose the following report and recommendation for disposition of the Motions.

I.

[¶2] Sometime after 6:00 a.m. on November 18, 2006, the Rosebud Police Department received a call concerning a possible rape that had occurred. Tribal officers responded to the call, collected evidence at the scene, interviewed the alleged victim, Alexis M. Oskolkoff, and saw to it that a rape kit was performed on her.

[¶3] On November 19, 2006, Sergeant Mark Kettell, of the Rosebud Police Department, assembled a photographic lineup of the people who were at Oskolkoff's residence the night before and showed it to her. Oskolkoff identified Peneaux right away as one of her attackers.

[¶4] On November 22, 2006, Christian Barrera, a supervisory criminal investigator for the Rosebud Police Department at the time, prepared a second photographic lineup, made up of different persons, and showed it to Oskolkoff. She looked at the lineup and identified Prue as her other attacker in less than five seconds.

[¶5] Ultimately, Defendants were charged in federal court by Indictment with three counts of forcible rape, one count of robbery and, in the alternative, with aiding and abetting each other in the commission of these crimes. They later each filed motions to suppress evidence of their photographic identifications. They claim that their lineups were impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification.

II.

[¶6] Photographic identifications or "arrays" are reviewed using a two-step inquiry. Manson v. Brathwaite, 432 US 98, 114 (1977); Schawitsch v. Burt, 491 F3d 798, 802 (8th Cir. 2007). The first step is to determine whether the lineup or array was "impermissibly suggestive." United States v. Donelson, 450 F3d 768, 772 (8th Cir.) (quoting Simmons v. United States, 390 US 377, 384 (1968)), cert denied, 127 SCt 451 (2006). If such a finding is made, the second step is to determine whether, under the totality of the circumstances, the lineup or array created a "very substantial likelihood of irreparable misidentification." Id. at 773.

[¶7] When there are no differences in appearance which tend to isolate the defendant's photograph, the identification procedure is not unnecessarily suggestive. United States v. Mays, 822 F2d 793, 798 (8th Cir. 1987); see also United States v. Wilson, 787 F2d 375, 385 (8th Cir.) (photo spread not unnecessarily suggestive where suspect was the only Hispanic included in the display), cert denied, 479 US 857 (1986).

[¶8] The determination as to whether a photographic lineup or array creates a substantial risk of misidentification at trial, requires a court to consider: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the defendant; (4) the level of certainty demonstrated at the time of the identification; and (5) the time between the crime and the identification. United States v. Williams, 340 F3d 563, 567 (8th Cir. 2003) (citing Manson, 432 US at 114).

III.

[¶9] Peneaux's picture was one among five photographs shown to Oskolkoff on November 19th. The individuals depicted in the lineup had allegedly been at Oskolkoff's residence the previous night. Each photograph in the lineup was presented in the same manner, without any marks or identifying information showing. While Peneaux's shirt and hair length may have been different than the rest, the basic features of each of the others were consistent with and generally similar to Peneaux's own features. The Court does not believe that the lineup was itself unduly or impermissibly suggestive. ^{(1){fn1} United States v. Boston, 494 F3d 660, 666 (8th Cir. 2007); United States v. Rose, 362 F3d 1059, 1066 (8th Cir. 2004).}

[¶10] The same is true of the November 22nd photographic lineup shown to Oskolkoff. The eight photographs depicted individuals in white shirts who all resembled each other. Moreover, neither the lineup nor the identification process itself was impermissibly suggestive. ^{(2){fn2} Id.}

IV.

[¶11] In any event, even assuming, arguendo, that the photographic lineups were impermissibly suggestive, Defendants have failed to demonstrate a substantial likelihood of irreparable misidentification. First and foremost, Oskolkoff had ample time and opportunities to view both Defendants. While one Defendant is alleged to have forcibly held Oskolkoff down, the other Defendant is alleged to have raped her. Supposedly, Defendants then switched places so that both them, in the end, were able to have sexual intercourse with her. Oskolkoff thus had a close-up, face-to-face opportunity to see each Defendant. Although Oskolkoff was not able to name either Defendant, she was able to identify them, from the photographic lineups shown to her, almost immediately.

[¶12] As to Oskolkoff's degree of attention, she is alleged to have been forcibly raped, which means that she was focused on and devoted to resisting Defendant's sexual advances. Unlike some eye witnesses, Oskolkoff was not a casual observer, but rather, was part of and (unfortunately) intimately involved in, the alleged rapes as they were being committed. While admittedly Oskolkoff's description of her attackers was by no means detailed, she was certain in her identifications of Defendants and shown the photographic lineups, just one and four days, respectively, after the alleged rape incident occurred. There is no evidence that Waln or Barrera said or did anything to influence Oskolkoff's choices and there is no requirement that such lineups be administered by officers who are independent from the investigation. Boston, 494 F3d at 666; Schawitsch, 491 F3d at 803; Donaldson, 450 F3d at 773.

V.

[¶13] On this record, the Court is unable to conclude that the photographic lineups that were presented to Oskolkoff on November 19th and 22nd, from which she identified both Defendants, were "impermissibly suggestive and created a "substantial likelihood of irreparable misidentification" so as to offend due process strictures. Accordingly, the Court hereby

[¶14] RECOMMENDS that Peneaux's Supplemental Motion to Suppress Evidence of Photo Identification, found at Docket No. 37, and Prue's Motion to Suppress Evidence of Photo Identification, filed at Docket No. 42, be denied.

NOTICE

Failure to file written objections to the within and foregoing Report and Recommendations for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge. See 28 USC §636(b)(1).

Footnotes

1. The Court does so despite the fact that only five, rather than six or more, photographs were displayed. See State v. Swoopes, 233 Neb. 914, 918, 395 NW2d 500, 504 (1986) ("an array of five photographs is sufficient to constitute a fair and adequate array when attempting to identify a single perpetrator."); see also Farrell v. State, 622 NE2d 488, 494 (Ind. 1993) (though the court has recommended five-six photos in past, use of three upheld here, where police were "unable to find more than two other individuals sufficiently resembling the defendant"); Nave v. State, 808 P.2d 991, 993 (Okla. Crim. App. 1991) ("no case * * * states that three, four or five photos are per se impermissibly suggestive").

2. The fact that Prue's photograph had been compacted and was smaller than the others did not make the lineup overly suggestive so that Prue stood out and was more likely to be selected. And, the fact that each of the photos had "ID-Number[s]" underneath them is of no consequence because Oskolkoff would not have been able to attach any significance to the "Number[s]."