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United States v. Wofford

United States District Court, N.D. Oklahoma

November 17, 2017




         Before the Court is defendant Joshua Wofford's Motion to Suppress In-Court Identifications (Doc. 23). Mr. Wofford also submitted a thumb drive of videos (Doc. 24), which the Court has reviewed. The United States filed a response (Doc. 27), and Mr. Wofford filed a reply (Doc. 29). The Court conducted an evidentiary hearing on the motion and admitted Plaintiff's Exhibits (PX) 1 and 2 (a copy and the original of a photo lineup) and Defendant's Exhibits (DX) 1, 3, 4, 5, 6, 8, 9, and 10. The videos on the thumb-drive (Doc. 24) were identified and admitted during the hearing as DX 5 and 6. The Court also heard testimony of the following: JLG, who is 14 years old and will be referred to by initials; Heidi Argumedo; Jose Cruz-Gonzalez; Tulsa Police Department (TPD) Officer Cleon Burrell, Daniel Harris, TPD Officer Jeff Gatwood, TPD Officer Garrett Higgins, and Scott D. Gronlund, Ph.D. During the course of the hearing, the United States presented an oral motion to exclude Dr. Gronlund's testimony (Doc. 36), to which the defendant has now filed a written response (Doc. 37), and that motion will also be addressed in this order.

         I. Suppression Proceedings

         A motion to suppress is recognized and governed by Rule 12. See Fed. R. Crim. P. 12(b)(3)(C). Pursuant to Rule 12(d), “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” The purpose of a suppression hearing is to “determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the [Constitution].” United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982). When making a preliminary determination of the admissibility of evidence, “the court is not bound by evidence rules, except those on privilege.” Fed.R.Evid. 104(a); see also Merritt, 695 F.2d. at 1269-70.

         II. Background Facts

         A. The Carjacking

         On June 4, 2017, at approximately 10:39 p.m., a Toyota Sequoia pulled into a parking slot in front of a QuikTrip on North Harvard in Tulsa, Oklahoma. Daisy Ellis was driving the Sequoia, and her husband, Daniel Harris, was sitting in the front passenger seat. As they entered the parking lot, Ellis and Harris noticed a man standing with his leg propped up against the wall to the side of the QuikTrip. Ms. Ellis entered the store, while Daniel Harris remained in the front passenger seat of the vehicle.

         At 10:41 p.m., Jose Cruz-Gonzalez drove his 1999 Chevy truck into the QuikTrip parking lot and parked immediately to the right of the passenger side of the Toyota Sequoia where Mr. Harris was sitting. Mr. Cruz-Gonzalez entered the QuikTrip, while his wife (Heidi Argumedo) and three children, including JLG, remained in the truck. Soon thereafter, a man walked from where he had been leaning against the outside wall of the QuikTrip, down the sidewalk in front of the store's entryway, passing in front of the Chevy truck, and around to the driver side of the truck. The man stood in between the vehicle occupied by Daniel Harris and the vehicle occupied by Mr. Cruz-Gonzalez's family. Noticing the man he had previously seen on the side of the building approach the driver side of the family's truck, Mr. Harris spoke to him, and the man indicated that he was taking the truck and that he had a gun.

         The man then opened the door of the pickup truck, pointed a gun at Ms. Argumedo, and said “get out of the car right now.” At some point, the man pointed the gun at Mr. Harris. Ms. Argumedo and her children exited the truck and entered the QuikTrip, and she asked the clerk to call police. Mr. Harris also entered the store to make sure that all of Ms. Argumedo's children had exited the truck. As the carjacker drove away in the family's stolen truck, Mr. Harris and Mr. Cruz-Gonzalez saw the carjacker put his arm out of the truck and they heard a gunshot. Mr. Harris provided a description of the weapon, which has apparently not been found, and he described the man as a white man with a scar on the right side of his face, wearing black jeans, black shoes, and a white shirt. Ms. Argumedo testified that the carjacker had a scar on his face around the cheek area close to his eye.

         B. The Police Pursuit and Search

         Soon after the carjacking was reported, TPD Officer Garrett Higgins saw the stolen truck, and he began to pursue the vehicle. At one point during the pursuit, the suspect drove to a deadend street and had to slow the stolen vehicle to turn around. As the suspect turned and passed Officer Higgins's police vehicle, the driver sides of two vehicles were “door-to-door, ” within five to six feet of one another, and Officer Higgins testified that he “got a good look” at the suspect as they passed. Higgins had seen the suspect before, because he had previously been involved as a backing officer on that suspect's arrest on another occasion.[1] The pursuit continued with the suspect driving the wrong direction, into oncoming traffic, on Harvard, at times above the speed limit.

         The suspect ultimately drove into a ditch at 3800 N. Harvard and fled on foot. The truck was quickly found, and police commenced a search of the area. Officers set up a perimeter, and K-9 officers arrived and located the defendant in a wooded area near 3800 N. Harvard, approximately two hours after they commenced the search. Officer Higgins came to the location and identified Mr. Wofford as the man he had seen driving the stolen truck during the earlier police pursuit. Higgins found a white t-shirt about 10 to 15 yards from where the stolen truck was recovered.

         C. The Show-Up Identifications

         Before Mr. Wofford was located and detained by the K-9 officers, other TPD officers drove Mr. Cruz-Gonzalez, Ms. Argumedo, and their children to the search area.[2] JLG testified that they waited in the police cars for a long time and then police informed them that they “had caught the guy.”[3] After Mr. Wofford was discovered by the K-9 unit, a show-up identification procedure was conducted. The family members were driven in police cars to the nearby location where Mr. Wofford was being held by police. Mr. Wofford was then then taken out of another police car, with officers holding onto Wofford by his arms, several yards in front of the police cars in which the family members were seated. Police vehicle headlights and a spotlight were shined on Wofford, and an officer asked JLG “if it was him or not.” JLG responded, “yes, that's him.” JLG then translated for his father, and his father answer yes to the question of whether the man in the lights “was him.”

         According to Officer Burrell, Ms. Argumedo did not identify Mr. Wofford as the assailant during the show-up. Ms. Argumedo testified at the hearing that she initially did not identify Wofford because he was wearing different clothes than the carjacker had been wearing, but that she looked at him more and then reported that it was him, but that he was wearing different clothes. She further testified that her identification of Mr. Wofford was solidified after she spoke to her husband and son about the man wearing a bandana. She acknowledged that it is possible that she thought Wofford was the carjacker only later, as opposed to positively identifying him to Officer Burrell during the show-up.

         D. The Photo Array Identification

         TPD Robbery Detective Jeff Gatwood was the detective assigned to lead the investigation into the carjacking. Following Mr. Wofford's arrest, Detective Gatwood compiled a photo lineup. (PX 1). To do so, he located the most recent photo of Mr. Wofford that was available to the TPD, with the exception of the mugshot taken following Mr. Wofford's arrest on June 4. Gatwood explained that he thought using the photograph taken following the June 4 arrest would have been problematic because Mr. Wofford had bloody marks on his face in that photo. To select other photos for the lineup, he utilized the TRACIS data system's Q-Mug program. He entered into the system Mr. Wofford's age, race, height, weight, hair and eye color and he requested 50 or 60 photos, in order to select photographs of men with similar characteristics. From those results, Detective Gatwood selected photographs of five other men to use along with Mr. Wofford's in the photo array.

         The photo array includes six photos of white men with very short hair, and they all appear to be of a similar age to Mr. Wofford. (PX 1, 2). Mr. Wofford's photo was placed in the number 2 position, at the top middle of six photographs arranged with three photographs on each of two rows. In Mr. Wofford's array photo, the top of what appears to be an orange shirt is visible. After compiling the array, Detective Gatwood showed it to two other detectives and asked them to determine if any of the six men in the photo array stood out more than any others, and each of the detectives selected photos other than Wofford's as appearing more prominent to those detectives' eyes.

         On June 6, 2017, Detective Gatwood drove to Mr. Harris's home and asked him to look at the photo array. Gatwood asked Mr. Harris to look at each photo carefully, to take his time, and to not feel like he was being pressured. At 12:33 p.m. on June 6, 2017, Mr. Harris identified the photo of Mr. Wofford as a photo of the man he saw commit the ...

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