United States v. Hawkins, Robert A. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. HAWKINS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 CR 50028—Philip G. Reinhard, Judge.
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ARGUED JUNE 6, 2007—DECIDED AUGUST 28, 2007
____________
Before RIPPLE, KANNE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. Robert Hawkins was charged
with robbery affecting interstate commerce, in violation of
18 U.S.C. § 1951(a), of using a firearm in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and of
unlawful possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1). Prior to trial, Mr. Hawkins moved to
suppress testimony about a showup identification that
had been conducted shortly after his arrest. The district
court denied Mr. Hawkins’ motion. After trial, a jury
found Mr. Hawkins guilty on all counts, and he was
sentenced to 324 months’ imprisonment. He now appeals
2 No. 06-2094
his conviction on the ground that admission of the testi-
mony about the showup identification violated his due
process rights. For the reasons set forth in this opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A.
On the night of March 14, 2004, Jessie Grahn was on
duty as the store clerk at the Road Ranger gas station in
Machesney Park, Illinois. At about midnight, a man
wearing a ski mask entered the Road Ranger and robbed
the store at gunpoint. He went behind the counter and
attempted to open the cash register drawer himself. When
he could not do so, he insisted that Grahn open it for him.
Grahn did as instructed, and the robber grabbed what
cash he could from the drawer, about $117, and fled. The
entire incident lasted about one minute.
As soon as the robber left the store, Grahn dialed 911 to
report the robbery. A dispatch went out to local law
enforcement. Deputy Tom Keegan of the Winnebago
County Sheriff’s Department was on patrol in the area
and responded to the dispatch with his lights and siren
engaged.
As he neared the scene, Deputy Keegan observed a
vehicle coming toward him from the opposite direction.
Deputy Keegan shined his spotlight at the approaching
vehicle to get it to slow down or stop. The vehicle did not
slow down and appeared to accelerate. Deputy Keegan
continued to shine his spotlight at the accelerating vehicle
as it passed. After the vehicle passed, Deputy Keegan
turned around his patrol car and pursued the other vehicle
No. 06-2094 3
with his light and siren still engaged. He pursued the
vehicle until it stopped next to a mobile home. When
Deputy Keegan reached the vehicle, he found that the
driver already had fled. Other law enforcement officers
joined Deputy Keegan at the site and established a perime-
ter.
Deputy Keegan remained at the perimeter for about
ten minutes until he was relieved by another officer. He
then proceeded to the Road Ranger, where he was one of
the first officers to arrive. He took a description of the
robber from Grahn, who described the robber as an older
white man wearing dark clothes and dark gloves. She had
concluded based on his voice and grey hair she saw in his
eyebrows, which were visible through the ski mask, that
the robber was an older man. Grahn described the robber
as taller than herself and as having a medium build. Grahn
further described the firearm used by the robber as
small, thin and silver and not a revolver. Deputy Keegan
relayed this description to the officers at the perimeter.
Back at the perimeter, the officers heard noises coming
from a stand of trees near the mobile home. As the officers
approached the woods, one of them noticed a small
handgun on the ground near the driver’s side of the vehicle
which Deputy Keegan had pursued. Within ten minutes,
Mr. Hawkins emerged from the woods wearing a black
hooded sweatshirt, a brown leather jacket with a tear in it
and jeans. He attempted to run from the police officers,
but was apprehended. After searching the woods nearby,
the officers found one pink glove, one gray glove, $113
in cash and a black ski mask.1
1
The ski mask was found in the road near the area in which
Mr. Hawkins was apprehended.
4 No. 06-2094
The officers then notified Deputy Keegan that they had
a suspect in custody and that they were bringing him to the
Road Ranger for a showup identification. Deputy Keegan
informed Grahn that they had caught somebody, and that
they wanted her to look at him. Grahn asked Deputy
Keegan if the person they were bringing was the robber,
to which Deputy Keegan responded that he did not
know. The officers arrived at the Road Ranger with Mr.
Hawkins sometime between 12:40 and 1:00 a.m., around
forty minutes to an hour after the robbery. Mr. Hawkins
was taken from the car without a ski mask. Grahn viewed
him through the store’s windows, from a distance of
about 25 to 30 feet. Grahn told Deputy Keegan that Mr.
Hawkins looked like the robber, but also said that she
was unable to say for certain. She based her tentative
identification on Mr. Hawkins’ height, body type, build
and clothing, which were consistent with her memory of
the robber. After Grahn had identified Mr. Hawkins, she
was shown the gun recovered near the vehicle Deputy
Keegan had pursued. Grahn told the officers that it looked
like the gun used by the robber.
Mr. Hawkins then was taken to the Winnebago County
Sheriff’s Department and advised of his rights. The follow-
ing morning, Grahn appeared at the police station and
gave a written statement.
B.
Mr. Hawkins was indicted for robbery affecting interstate
commerce, see 18 U.S.C. § 1951(a), use of a firearm in
relation to a crime of violence, see id. § 924(c)(1)(A), and
unlawful possession of a firearm by a felon, see id.
§ 922(g)(1). He filed a series of pretrial motions, including
No. 06-2094 5
a motion to suppress Grahn’s showup identification. He
asserted that the showup was unduly suggestive and was
unreliable under the circumstances. Therefore, Mr.
Hawkins asserted, introduction of the identification into
evidence would violate his due process rights.
The district court held a hearing on the motion at
which Grahn and Deputy Keegan testified. At the con-
clusion of the hearing, that court held that introduction of
testimony regarding Grahn’s prior identification of Mr.
Hawkins was permissible under the circumstances. The
court first concluded that the showup identification was
not unduly suggestive. The court noted that Mr. Hawkins
had been apprehended shortly after the robbery in close
proximity to the crime. The court also determined that
the officers had not suggested to Grahn that the person
in custody was, in fact, the robber or done anything else
to influence Grahn’s identification. The court further
concluded that, applying the factors set forth by the
Supreme Court in Neil v. Biggers, 409 U.S. 188 (1972),
Grahn’s identification of Mr. Hawkins was reliable.
Mr. Hawkins proceeded to trial. At trial, Grahn testified
about the robbery and described the robber and the gun
he used. She also testified that the police had brought a
man to the Road Ranger for her to identify that night.
Grahn stated that the man the police brought had a similar
build and appearance as the robber, but that she had not
been able to say for sure that he was the robber. Grahn
was not asked to identify Mr. Hawkins as either the robber
or as the man the police brought to the Road Ranger on the
night of the robbery. Deputy Keegan later testified that
the man brought to the Road Ranger for identification
was Mr. Hawkins.
6 No. 06-2094
In addition to the testimony of Grahn and Deputy
Keegan, the Government introduced other evidence linking
Mr. Hawkins to the robbery. First, the Government intro-
duced the surveillance video from the Road Ranger on the
night of the robbery. The video showed that the robber
was wearing a brown leather jacket, a black hooded
sweatshirt, one gray glove and one pink glove and a black
ski mask. At the time Mr. Hawkins was arrested, he was
wearing a brown leather jacket and a black hooded sweat-
shirt. Further, the gloves and ski mask recovered in the
area where Mr. Hawkins was apprehended had been
subjected to DNA testing. Although the results of the
tests excluded between 99.9% and 99.9996% of the Cauca-
sian population from the DNA found on each of the
various items, they did not exclude Mr. Hawkins. Lastly,
the Government introduced evidence that the gun recov-
ered had been purchased by Frank Jennings, a man
with whom Mr. Hawkins occasionally stayed. Mail ad-
dressed to Mr. Hawkins, as well as his wallet, were found
at Jennings’ home.
The jury found Mr. Hawkins guilty on all three counts,
and the court sentenced him to 324 months’ imprisonment.
II
DISCUSSION
Mr. Hawkins contends that the introduction of testimony
about the showup identification violated his due process
rights because the identification procedure was unduly
suggestive and because the resulting identification was
not reliable under the circumstances.
With respect to testimony regarding suggestive out-of-
court identifications, the Due Process Clause is concerned
No. 06-2094 7
primarily with the substantial likelihood of misidentifica-
tion. Biggers, 409 U.S. at 198. Thus, the Supreme Court has
observed that “[t]he admission of testimony concerning
a suggestive and unnecessary identification procedure
does not violate due process so long as the identification
possesses sufficient aspects of reliability.” Manson v.
Brathwaite, 432 U.S. 98, 106 (1977). Therefore, to deter-
mine whether the admission of testimony regarding an
out of court identification offends the defendant’s due
process rights, we conduct a two-step analysis. United
States v. Rogers, 387 F.3d 925, 936 (7th Cir. 2004). First, the
defendant must establish that the identification proce-
dure was unduly suggestive. Id. If the defendant estab-
lishes this factor, we then must determine whether, under
the totality of the circumstances, the identification was
nonetheless reliable. Id. Although we give due deference
to the district court’s findings of fact, we review de novo
the district court’s conclusion that the introduction of the
identification evidence did not violate Mr. Hawkins’ due
process rights. Id. at 931-32.
A.
To satisfy the first prong of our analysis, the defendant
must show both that the identification procedure was
suggestive and that such suggestiveness was unnecessary.
See United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994).
We previously have held that showup identifications are
inherently suggestive. United States v. Newman, 144 F.3d
531, 535 (7th Cir. 1998). However, “the admission of
evidence of a showup without more does not violate due
process.” Biggers, 409 U.S. at 198. We have recognized that
showups may not be unduly suggestive under certain
circumstances. See United States v. Sleet, 54 F.3d 303, 309
8 No. 06-2094
(7th Cir. 1995) (citing Armstrong v. Young, 34 F.3d 421, 427
(7th Cir. 1994)). To determine whether, under the cir-
cumstances, the suggestive identification was unneces-
sarily so, we must determine whether there was a good
reason for the failure to resort to a less suggestive alterna-
tive. See United States v. Stevens, 935 F.2d 1380, 1383 (3d
Cir. 1991) (citing 1 Wayne R. LaFave & Jerold H. Israel,
Criminal Procedure § 7.4(b), at 581 (1994)).
Our cases observe that showup identification is not
unduly suggestive in cases of extraordinary urgency. See
Newman, 144 F.3d at 535. One such extraordinary situa-
tion is confirming that an individual apprehended close in
time and proximity to the scene of a crime is, in fact, the
suspected perpetrator of the crime. See United States v.
Funches, 84 F.3d 249, 254 (7th Cir. 1996); Sleet, 54 F.3d at
309. We have recognized that a showup identification
under such circumstances serves legitimate law enforce-
ment purposes because it allows identification of the
suspect while the witness’ memory is still fresh. Sleet,
54 F.3d at 309 (citing Johnson v. Dugger, 817 F.2d 726, 729
(11th Cir. 1987)). Such identifications both protect innocent
individuals from unnecessary arrest and help authorities
determine whether they must continue to search for the
actual perpetrator. See Simmons v. United States, 390 U.S.
377, 384-85 (1968); Sleet, 817 F.2d at 729. Indeed, the
Supreme Court has held that the use of identification
techniques akin to a showup is an appropriate method for
law enforcement to employ in order to determine whether
their investigation is on the right track. See Simmons, 390
U.S. at 384-85 (noting that showing witnesses pictures of
the prime suspect in order to determine whether law
enforcement is pursuing the correct suspect was a neces-
sary method under the circumstances and comparing
the technique to a showup identification).
No. 06-2094 9
In this case, the showup occurred less than an hour after
the robbery and the defendant had been observed and
apprehended in the immediate vicinity of the crime. Fur-
ther, the authorities helped to minimize the suggestive-
ness of the procedure. When informed that a suspect had
been caught, Grahn asked Deputy Keegan if it was the
robber. Deputy Keegan responded that he did not know.
Additionally, the officers did not present Mr. Hawkins
in the ski mask found in the area of his arrest. Further,
the officers did not show Grahn the gun recovered until
after she had given them her opinion as to whether Mr.
Hawkins was the individual who had robbed her. Lastly,
although the robbery had been caught on the Road
Ranger’s surveillance video, Grahn had not reviewed the
video prior to the showup. Taken together, these facts
demonstrate that the officers took no steps other than the
showup itself to suggest that Mr. Hawkins was the robber.
Under these circumstances, we cannot say that the showup,
while suggestive, was unduly so.
Mr. Hawkins relies on our decisions in United States v.
Funches, 84 F.3d 249 (7th Cir. 1996), United States v.
Newman, 144 F.3d 531 (7th Cir. 1998), and United States v.
Rogers, 387 F.3d 925 (7th Cir. 2004), to support his argu-
ment that the procedures employed here were unduly
suggestive. However, we believe that each of these cases
is distinguishable in a significant way from the present
case.
The defendant in Funches was accused of robbing a bank.
The police were led to the defendant through a some-
what circuitous route. They first received a tip that some-
one involved in the robbery was at a nearby hotel. Funches,
84 F.3d at 251. When the police arrived at the hotel,
they were informed that the suspect had already left by
10 No. 06-2094
cab with a woman. Id. In the course of a search of the
suspect’s hotel room, the police recovered an identifica-
tion card with the defendant’s name as well as a number
of addresses, one of which was the defendant’s mother’s
address. Id. The police then went to the defendant’s
mother’s house, and the defendant arrived shortly there-
after. Id. Almost four hours after the robbery, the police
brought the defendant back to the bank for a showup
identification and had him stand in the spot where the
robber had stood during the crime. Id. at 254. Although
we did not rule definitively on whether the showup was
impermissibly suggestive, we expressed concern about
the use of a showup conducted almost four hours after
the crime when the defendant had not been found in the
vicinity of the crime. Id. at 255 n.3. Here, in contrast, the
showup was conducted no more than an hour after the
crime, and Mr. Hawkins had been found in the immedi-
ate vicinity of the Road Ranger.
In Newman, the defendant had robbed a bank and fled
the scene. In the course of the escape, he left a trail of
witnesses and destruction, which the police followed to his
house. Upon arriving at the house, the police found the
defendant with “a fistful of currency” along with bundles
of cash bearing the stamp of the bank that had been
robbed. Newman, 144 F.3d at 534. After arresting the
defendant, the police brought several witnesses to the
defendant’s house after telling them they were being taken
there to identify a subject. Id. Upon their arrival at the
house, the witnesses saw the defendant in handcuffs
with the house surrounded by yellow crime scene tape. Id.
We concluded that the showup was conducted simply
as a matter of convenience rather than any necessity
because the police already had evidence connecting the
No. 06-2094 11
defendant to the robbery that rendered an expedited
identification unnecessary. Id. at 535. In the present case,
the only evidence the police had that connected Mr.
Hawkins to the robbery was a general description of his
clothing (dark) and physical appearance (about 5’8” with
a medium build).2 Confirmation that Mr. Hawkins was
the suspected robber was necessary in order for the
authorities to determine whether they needed to con-
tinue their search for the perpetrator.
Lastly, in Rogers, the witness had participated in a drug
transaction that involved a third person. The witness had
seen that third person from a distance and did not know
that person. In an effort to identify that third person, the
witness previously had been shown photo arrays that
included the defendant, but had not been able to identify
the defendant in those photo arrays as the individual he
had seen during the crime. Rogers, 387 F.3d at 930 & n.1.
Following the witness’ guilty plea related to the drug
transaction, the witness had been placed in a cell with the
2
Although the officers found the gun, ski mask, gloves and
money in the vicinity of the vehicle which Deputy Keegan had
pursued, at the time they took Mr. Hawkins to the Road
Ranger, they had yet to connect Mr. Hawkins to these
items in any definite way. The record reflects that each of
these items was found by different officers and that each
officer had left the item untouched while awaiting the
crime scene investigator. None of these officers personally
were responsible for apprehending Mr. Hawkins or taking
him to the Road Ranger. Further, it does not appear from
the record that the discovery of each of these items was
funneled through a single command point prior to Grahn’s
identification so that any single individual was aware of
all facts surrounding the apprehension.
12 No. 06-2094
defendant. At that point, the witness was able to identify
the defendant as the unidentified third person. Id. at 937.
Further, while in the cell with the defendant, the wit-
ness was interviewed by a probation officer in prepara-
tion for the witness’ sentencing. Id. We concluded the
combination of having seen the defendant’s picture in a
photo array and the circumstances under which the
witness then encountered the defendant in the cell, may
have led the witness to conclude that the presence of the
defendant was not a coincidence. Id. In this case, there
are no similarly suggestive prior events that would
have led Grahn to believe that the police believed Mr.
Hawkins was the robber.
Mr. Hawkins also points out that an immediate showup
would not have allowed the police to release an innocent
person because, at the time of the showup, the police were
aware of outstanding warrants for his arrest. Therefore,
he would have remained in police custody regardless of
the showup. He further contends that the officers had
stopped searching the area for the driver of the vehicle
before the showup. Assuming the truth of this assertion,
Mr. Hawkins fails to appreciate that the identification by
Grahn was not necessary to establish that Mr. Hawkins
was the driver of the vehicle, but rather to establish that
the driver of the vehicle was the suspect in the robbery.
Grahn testified that she had not seen the robber leave the
scene in a vehicle. Deputy Keegan’s pursuit of the vehicle
had been prompted by the suspicious conduct of the
driver, not by any information tying the vehicle to the
robbery. Once the officers found Mr. Hawkins, there was
no reason to continue searching for the driver of the
vehicle. However, further information was needed to
confirm that the driver of the vehicle also was the sus-
No. 06-2094 13
pected robber. A negative identification by Grahn would
have informed the officers that, although they had ap-
prehended the suspected driver of the vehicle, they had not
necessarily apprehended the suspected robber. Thus, an
identification by Grahn served the legitimate law enforce-
ment purpose of informing the officers whether they
needed to continue searching for the robbery suspect. See
Simmons, 390 U.S. at 384-85.
Therefore, the showup identification was not unduly
suggestive under the circumstances. The district court
correctly allowed testimony regarding the showup identifi-
cation.
B.
Even if we had concluded that the identification proce-
dures were unduly suggestive, we nevertheless would
conclude that, under the totality of the circumstances, the
identification was reliable. When an identification proce-
dure is unduly suggestive, we look to the totality of the
circumstances to determine whether the identification
was reliable despite the suggestiveness of the procedure.
Biggers, 409 U.S. at 199. The Supreme Court has held
that the factors we must consider
in evaluating the likelihood of misidentification in-
clude the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated
by the witness at the confrontation, and the length of
time between the crime and the confrontation.
Id. at 199-200.
14 No. 06-2094
The district court found that, although Grahn’s encounter
with the robber had been short, she had a good opportu-
nity to view the robber, given the lighting and the fact that
she had stood next to the robber for most of the robbery.
The court further found that Grahn had been attentive
during the robbery, albeit frightened. The court also found
that the description given by Grahn was accurate and that
the showup occurred less than one hour after the rob-
bery. These are factual findings, and we perceive nothing
in the record that would cause us to question their accu-
racy. Further, each of these findings weighs in favor of
finding that Grahn’s identification of Mr. Hawkins was
reliable.
Nonetheless, Mr. Hawkins asserts that the lack of
certainty of Grahn’s identification militates against the
reliability of the identification. He notes that she did not
positively identify him as the robber, but stated that he
looked like the robber. The district court, on the other
hand, concluded that the lack of certainty in her identifica-
tion weighed in favor of reliability. The court noted
that, given the fact that the robber had worn a ski mask,
a more certain identification would be more suspicious.
We believe that, under the circumstances, the tentative
nature of Grahn’s identification does not render the
identification unreliable. The district court was entitled to
conclude that, given the circumstances under which Grahn
viewed the robber, a more definitive answer would
indicate that her identification was the product of sugges-
tion, not her true recollection. In some circumstances, an
equivocal identification may indicate a lack of reliability,
but, under the circumstances here, a somewhat equivocal
identification, especially when compared with the gen-
eral description given by Grahn immediately after the
No. 06-2094 15
robbery, is consistent with the level of detail expected of
the witness’ memory. Here, the equivocal nature of the
identification affects the weight the jury might give to the
earlier identification, not the reliability of the identifica-
tion itself. See United States v. Moore, 936 F.2d 1508, 1520-21
(7th Cir. 1991) (holding that the tentative nature of an
identification affects the weight of the evidence, not its
relevance or potential prejudice).
Conclusion
The showup identification employed in this case was not
unduly suggestive and, in any event, was reliable. The
victim’s testimony about the showup identification did not
violate Mr. Hawkins’ right to due process of law. The
decision of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-28-07