State v. Morgan

¶1In re Jerome Morgan;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 367-809; to the Court of Appeal, Fourth Circuit, No. 2Q16-K-0102 C/W 2G16-K-0103.

¶2Granted. See per curiam.

¶3hOn Supervisory Writ from the Criminal District Court, Parish of Orleans

¶4Writ granted. In granting defendant’s application for post-conviction relief to vacate Ms conviction for second degree murder,’ the district court determined that the out-of-court identifications by Kevin Johnson and Hakim Shabazz were unreliable because those witnesses were coerced by NOPD officers to identify defendant as the shooter. In anticipation of defendant’s retrial, the district court correctly deter*592mined that the state may not rely oil these discredited unreliable identifications. See generally State v. James, 464 So.2d 299, 300 (La.1985) (“Reliability is the linchpin in determining the admissibility of identification testimony?’) (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). The district court erred, however, to the extent it found that their -in-court identifications from the first trial will be admissible at the retrial, at which they will presumably not testify because the state has charged them with perjury. Under' the circumstances, there is no reasonable inference that the in-court identifications have a source independent of the out-of-court identifications. See generally State v. Taylor, 347 So.2d 172, 180 (La.1977) (“A trial court properly admits an in-court identification if it has a source independent of the out-of-court identification. In this determination, three factors are relevant: (1) the prior acquaintance of the witness with the accused; (2) the length of time the witness observed the perpetrator before, during, and after the commission of the offense; |¾(3) the circumstances under which the observation was made, i.e., the illumination at the scene, the witness’s physical capacities, and the witness’s emotional state at the time of the observation.”); see also Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) (“Regardless .of how. the initial mis-identification • comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.”). Therefore, defendant’s application is granted and the district court’s ruling is vacated to the extent it would allow the state to use the in-court identifications from the first trial to establish defendant’s guilt at the retrial. Nothing herein, however, precludes the district court from revisiting the admissibility of the prior identifications, out-of-court and in-court, if these witnesses testify at the retrial.

¶5dissents and assigns reasons.

¶6|TI respectfully dissent in this consolidated matter, as I would deny the defendant’s writ application (No. 16-KK-0550) and would grant the state’s writ application (No. 16-KK-0651).

¶7The defendant, Jerome Morgan, was tried and convicted by a twelve person jury of second degree murder for the shooting death of Clarence Landry at a sweet sixteen party in May 1993.1 In 2015, after serving more than 20 years of the mandatory life sentence, and following a post-conviction relief proceeding, Morgan was granted a new trial based, in part, on the recanted testimony of Kevin Johnson and Hakim Shabazz, the two teenage witnesses from the first trial who identified the defendant as the shooter. Judge Darryl Derbigny, who was not the original trial judge, vacated Morgan’s conviction and ordered a new trial, finding that Johnson and Shabazz were coerced to identify Morgan, that the coercion and manipulation by the NOPD caused the two teen witnesses to testify against Morgan at trial, that the identification procedures were unduly suggestive and created a substan*593tial likelihood of misidentification, and that the identifications failed the four prong test set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.2 In anticipation of the new trial, the defense filed a motion to suppress the in-court and out-of-court identifications made by Johnson and Shabazz, arguing they were unreliable."' After the state filed a motion to recuse Judge Derbigny, which was granted, the cáse was transferred to Judge Franz Zibilich who conducted & suppression hearing. As á result of pending perjury charges against Johnson and Sha-bazz, they did not testify at the hearing and will likely not testify at Morgan’s retrial. Judge Zibilich granted the motion to suppress in part and denied, it in part, suppressing the prior out-of-court identifications, but allowing the prior in-court identifications to be admitted; at the new trial.3 The majority of this Court concludes the prior in-court identifications are unreliable and -the district court erred.to the extent it will allow the state to admit them at the retrial, because “[ujnder the circumstances there is no reasonable inference that the in-eourt identifications have a source independent of the out-of-court identifications.” Op. p. 592 (citations- omitted). I respectfully disagree. I agree with the district court’s conclusion that the in-court identifications have independent sources, as Johnson and Shabazz both knew Morgan, both were at the party that night, Shabazz sustained a gunshot wound in the shooting, and neither witness was pressured to' identify Morgan at the trial. As I see it, it is not a question of whether the out-of-court and in-court identifications are reliable but whether Johnson and Sha-bazz are credible witnesses.

¶8Post-conviction relief was granted in this case to obtain a fair trial for the accused and to ascertain the truth. With that in mind, I would deny the defendant’s writ and grant the state’s writ to allow the jury to be presented with the 1994 in-court and out-of-court identifications as well as the recanted testimony from the post-conviction hearing (see No. 16-KK-0752).

¶9dissents and assigns reasons.

¶10hi respectfully dissent. Based on the facts and circumstances in this case, I would grant the State’s writ and' deny the defendant’s writ, thereby allowing the State to introduce the prior in-court and out-of-court identifications of the defendant- made by the witnesses. However, as noted in my concurrence in State of Louisiana v. Jerome Morgan 16-0752, I believe the jury should also be permitted-to examine the recantations of the identifications by these witnesses as set forth in the 2013 post-conviction trial transcripts,