State v. Hixon ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
Case No. 1808018837
Vv. : Kent County
GREGORY L. HIXON,
Defendant.
Submitted: April 8, 2019
Decided: May 23, 2019
ORDER
Defendant’s Motion to Suppress (Identification)
Denied.
Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State.
Edward C. Gill, Esquire of the Law Office of Edward G. Gill & Associates,
Georgetown, Delaware; attorney for the Defendant.
WITHAM, R.J.
State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
Before the Court is Defendant Gregory Hixon’s (hereinafter “Defendant”)
Motion to Suppress evidence seized as the result of a traffic stop and subsequent
identification conducted by Delaware State Police.' After carefully considering the
motion, the State’s response in opposition, and record, it appears to the Court that:
1. The Court incorporates its factual findings pursuant to its decisions
regarding Defendant’s previous Motion to Suppress and Motion for a Bill of
Particulars. The Court will further supplement factual findings that were not relevant
to Defendant's previous motions.
2. After Defendant exited the Maxima (Defendant’s vehicle) parked in the
Attorney General’s Office parking lot, he locked the Maxima and fled. However,
locking the Maxima prevented law enforcement from conducting a probable cause
search. After a search warrant was generated and approved, the Maxima was searched
and yielded drugs and drug paraphernalia, as well as a Wal-Mart receipt.
3. The Maxima also yielded positive results for fingerprints. The Delaware
State Bureau of Investigation (hereinafter "SBI") determined the prints belonged to
"Gregory Lawson Hixon."
4. Within three days, Tfc. Solda viewed the SBI photograph of Defendant, and
identified him as the Maxima’s driver. Tfc. Solda also positively identified Defendant
utilizing surveillance footage and photographs provided by Wal-Mart.
5. Defendant was later located, arrested, and charged with twenty-seven drug
"The Court's order only considers Defendant's suppression motion regarding identification.
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State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
and traffic related offenses.’
6. Subsequent to his arrest, Defendant filed an untimely Motion to Suppress
evidence based on Tfc. Solda’s identification on March 29, 2019.7 The State provided
its response, in opposition, on April 8, 2019. A hearing was held on May 13, 2019
and the Court reserved its decision.‘
7. In his motion, Defendant moves to suppress all evidence connected to the
* Defendant was charged with two counts of Drug Dealing, a felony, in violation of 16 Del.
C. § 4752(1); ten counts of Drug Dealing, a felony, in violation of 16 Del. C. § 4753(2); one count
of Disregarding a Police Officer's Signal, a felony, in violation of 21 Del. C. § 4103; one count of
Tampering with Physical Evidence, a felony, in violation of 11 Del. C. § 1269; one count of
Possession of Marijuana, a misdemeanor, in violation of 16 Del. C. § 4764(a); one count of Criminal
Impersonation, a misdemeanor, in violation of 11 Del. C. § 907; one count of Resisting Arrest, a
misdemeanor, in violation of 11 Del. C. § 1257(b); one count of Possession of Drug Paraphernalia,
a misdemeanor, in violation of 16 Del. C. § 4771(a); one count of Reckless Driving, a misdemeanor,
in violation of 21 Del. C. § 4175; one count of Failure to have Insurance Identification in Possession;
a misdemeanor, in violation of 21 Del. C. § 2118; one count of Failure to have Registration Card in
Possession, a violation of 21 Del. C. § 2108; one count of No Turn Signal utilization, a violation of
21 Del. C. § 4155; one count of Improper Lane Change, a violation of 21 Del. C. § 4122; one count
of Passing on the Right, a violation of 21 Del. C. § 4117; one count of Unreasonable Speed, a
violation of 21 Del. C. § 4168; one count of Failure to have License in Possession, a violation of 21
Del. C. § 2721; and one count of Failure to Stop at a Red Light, a violation of 21 Del. C. § 4108.
However, the Court notes that these charges are a culmination of the chain of everits concerning
Defendant that involved multiple officers over various areas in Dover. They do not all stem from
Tfc. Solda’s observations of his driving and the traffic stop.
* Defendant also filed a Motion to Enlarge Time on the same date that was unopposed. Under
the circumstances of this case, the Court granted the motion.
*“ The Court notes that neither the State, nor Defendant, addressed Defendant’s suppression
motion based on Tfc. Solda’s identification at the hearing.
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State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
“suggestive” and “unnecessary identification” of Defendant by Tfc. Solda.° Defendant
asserts that Tfc. Solda was presented a single photograph and identified him as the
driver of the Maxima from only that single photograph.° Defendant further contends
that the suggestive and unnecessary identification created a substantial likelihood of
misidentification that violated his due process rights.’
8. The State, in opposition, asserts that Defendant offered only a conclusory
statement regarding the photograph being suggestive and that misidentification was
likely.* The State further contends the photograph utilized by Tfc. Solda to make his
identification of Defendant was viewed only after Defendant’s fingerprints were
collected from the Maxima, and that same procedure would have been used by Tfc.
Solda at the scene of the traffic stop, if Defendant had not fled.’ Furthermore, the
State appears to argue that Tfc. Solda’s face-to-face contact with Defendant and
recalling a significant identifying feature, a tattoo, established the identification’s
* D. Mot. to Suppress Evidence - Identification (hereinafter “D. Mot. - Identification”) at 4.
° Id. at 73.
"Td. at 44.
* St. Reply to D. Mot. - Identification (hereinafter “St. Reply”) at J 8.
” Id. J 9 (Tfc. Solda would have utilized a fingerprint scan to determine Defendant's correct
name at the traffic stop. This would have resulted in viewing Defendant's photograph via the
"LiveScan Mugshots" feature available through DELJIS. The same procedure was used after finger
prints were found in the Maxima and identified as Defendant’s.).
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State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
reliability."°
9. For the reasons that follow, the Court finds that Tfc. Solda’s identification
of Defendant was reliable and not impermissibly suggestive. Thus, his motion to
suppress based on identification must be denied.
10. “An identification procedure will not pass constitutional muster where it
is sO impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable identification.”!!
11. The fact that an out-of-court identification procedure is unnecessarily
suggestive, however, does not ipso facto constitute a due process violation.'* An
unnecessarily suggestive identification procedure must also create the danger of an
irreparable misidentification.
12. If the Court determines, “under the totality of the circumstances, that a
pretrial identification procedure is impermissibly suggestive, but the identification is
nevertheless reliable, evidence of the pretrial identification will not be excluded at
trial.”'* In determining the admissibility of an out-of-court identification, the Court
Td. at G11.
'' State v. Holmes, 2012 WL 4086169, at *6 (Del. Super. Aug. 23, 2012) (citing Younger v.
State, 496 A.2d 546, 550 (Del.1985) (quoting Simmons v. U.S., 390 U.S. 377, 384 (1968)).
" Id. (citing Perry v. New Hampshire, 565 U.S. 228, 239 (2012); Monroe v. State, 28 A.3d
418, 431 (Del. 2011)).
'3 Monroe, 28 A.3d at 431.
4 Id, See also Neil v. Biggers, 409 U.S. 188, 199 (1972).
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State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
must first determine whether the out-of-court identification procedure was
impermissibly suggestive.’ If the out-of-court identification is found to be
impermissibly suggestive, the Court must then determine whether a likelihood of a
misidentification exists such that the identification was unreliable.’ This analysis is
driven by the particular facts of the case.!’
13. The Court finds that Tfc. Solda’s utilization of a DELJIS photograph was
not impermissibly suggestive. Here, Tfc. Solda told Defendant that he was going to
attempt to verify Defendant’s representations by finding Defendant’s picture. Law
enforcement officers in Delaware routinely utilize the LiveScan Mugshots feature on
DELJIS to verify information from a suspect, especially in cases as here, where a
suspect has no identification. That is exactly what Tfc. Solda would have done had
Defendant not fled the traffic stop.
14. Additionally, the Court disagrees with Defendant’s contention that Tfc.
Solda utilized only the DELJIS photograph in his identification. Tfc. Solda also
utilized surveillance footage and photographs obtained from a Wal-Mart that was
identified on the receipt found in Defendant’s vehicle. A subsequent evaluation of
surveillance footage and pictures from that Wal-Mart, confirmed Defendant had
visited that Wal-Mart prior to the traffic stop. This was secondary confirmation of
'° Id. (citing Younger, 496 A.2d at 550).
6 Id.
"7 Holmes, 2012 WL 4086169, at *7 (citing Weber v. State, 38 A.3d 271, 277 (Del. 2012)).
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State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
Defendant by Tfc. Solda and, as a result, the Court finds that identification, combined
with the identification based on the DELJIS photograph, was not impermissibly
suggestive.
15. Assuming arguendo, that Tfc. Solda’s identification was impermissibly
suggestive, the Court would nevertheless find the identification offered strong
reliability to outweigh any corrupting effect of any impermissibly suggestive
circumstances.
16. As the Supreme Court of the United States explained in Neil v. Biggers,'®
when determining an identification’s reliability, courts must apply a totality of the
circumstances analysis. The factors to be considered by a court include: (1) the
opportunity of the witness to view the subject at the time of the crime; (2) the witness'
degree of attention; (3) the accuracy of the witness' prior description of the subject;
(4) the level of certainty of the witness’ identification; and (5) the length of time
between the crime and the identification.'”
17. In this case, based on the evidence presented, the Court finds, under the
totality of the circumstances, Tfc. Solda’s identification was reliable. First, Tfc. Solda
had an ample opportunity to view Defendant during the traffic stop. The record
establishes that even though the stop took place in the early morning hours, Tfc.
Solda was able to make a clear, face-to-face contact with Defendant by using his
'® 409 U.S. 188 (1972).
" Neil, 409 U.S. at 199-200.
State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
flashlight to determine that Defendant was the sole occupant of the Maxima.
18. As to the second Neil factor, Tfc. Solda had a high degree of attention.
Defendant was observed by Tfc. Solda as the sole occupant of the Maxima, and as a
result, he was able to focus directly on Defendant. This lead to Tfc. Solda’s
subsequent observation of Defendant’s right arm tattoo. Additionally, Tfc. Solda’s
description of the traffic stop in his affidavit is corroborated by MVR footage.
Keeping that in mind, the Court finds Tfc. Solda’s description of Defendant and of
the traffic stop is evidence of a high degree of attention.” Furthermore, Tfc. Solda’s
ability to recognize the Defendant a second time, albeit within three days,
corroborates this finding further.” |
19. Regarding the third Nei! factor, Tfc. Solda was able to give as detailed a
description of Defendant as he could, given the particular circumstances. Here, and
subsequent to Defendant’s flight, Tfc. Solda notified law enforcement and described
Defendant as a young, light skinned Black male.”* He later recalled and disclosed
Defendant’s right arm tattoo. As it turns out, Defendant is a light skinned Black male
*° Monroe, 28 A.3d at 434 (finding that witness! vivid description of a shooting and the
defendant evinced witness’ high degree of attention).
*' Holmes, 2012 WL 4086169, at *12 (citing State v. Mullins, 1999 WL 169350, at *4 (Del.
Super. Mar. 18, 1999) (“The victim's high degree of attention to her attacker's appearance during the
assault is evidenced by her ability to recognize him a second time when she spotted him at a local
restaurant.”)).
” Tfc. Solda also informed law enforcement that the Defendant was wearing black pants, a
white shirt, and a blue hat at the time he fled the traffic stop.
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State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
and has a tattoo on his right arm. As such, the Court finds that Tfc. Solda’s ability to
accurately describe Defendant weighs in favor of finding reliability.
20. The record also establishes that Tfc. Solda was certain in his identification
of Defendant. There is nothing in the record to suggest that Tfc. Solda hesitated or
questioned his memory when he viewed either Defendant’s DELJIS photograph or
the Wal-Mart surveillance footage and photos. Tfc. Solda’s objective and genuine
confirmations constitute additional persuasive evidence of a reliable identification.
21. The last of the Neil factors is time between the alleged criminality and
identification. Here, a period of one to three days passed between the traffic stop and
Tic. Solda’s identification. Tfc. Solda signed his affidavit on August 27, 2018, as
when he made references to identifying the Defendant utilizing the photos and
surveillance footage. In Clayton v. State,” the Delaware Supreme Court found that
a three-month lapse of time between the commission of the crime and the
photographic lineup did not render the identification unreliable.” In this case, three
days was a fraction of the time frame considered in Clayton, and adds further weight
to the reliability of the identification. As a result, the Court does not find this time
period of between one to three days to be negatively significant.
22. After considering the Neil factors, the Court concludes, under the totality
of the circumstances, that Tfc. Solda’s identification of Defendant was reliable.
> 2006 WL 141027, 2006 WL 141027 (Del. 2006) (Table).
** Clayton, 2006 WL 141027, at *2.
State v. Gregory L. Hixon
Case No. 1808018837
May 23, 2019
Accordingly, since the Court has also found the identification procedure used was not
impermissibly suggestive, Defendant’s motion must be denied as he has not met his
burden in demonstrating that there was a “very substantial likelihood of irreparable
misidentification.””
23. Thus, Tfc. Solda’s out-of-court identification is admissible at trial.
Defendant’s Motion to Suppress on the grounds of identification is hereby DENIED.
IT IS SO ORDERED.
Hon. William L. Witham, Jr.
Resident Judge
oc: Prothonotary
ce: Lindsay A. Taylor, Esquire
Edward C. Gill, Esquire
5 Neil, 409 U.S. at 198 (citing Simmons, 390 U.S. 384).
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