United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
JOHN K
LARKINS III United States Magistrate Judge.
Pending
before the Court are Defendant William Anthony Everett's
Motion to Suppress Eyewitness Identifications [Doc. 116],
Motion to Dismiss 924(c) Counts [Doc. 117], and Motion to
Dismiss Enhanced Penalty in Count 4 [Doc. 125.] For the
reasons discussed below, it is RECOMMENDED
that these motions be DENIED.
I.
Procedural History
On
January 17, 2017, a federal grand jury seated in the Northern
District of Georgia returned a five-count indictment against
Everett and co-defendant Marcus LaMont Ward, charging Everett
with two counts of armed bank robbery, two corresponding
charges of brandishing a firearm during the robberies, and
one count of possession of a firearm by a convicted
felon.[1] [Doc. 1.] Everett filed several pretrial
motions to suppress [Docs. 41, 42, 43], which this Court
ruled on [Docs. 90, 101.].
On July
10, 2018, the government obtained a seventeen-count
superseding indictment against Everett and Ward. [Doc. 103.]
Everett is now charged with one count of conspiracy to commit
Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count One), two
counts of armed bank robbery, 18 U.S.C. § 2113(a) and
(d) (Counts Two and Five), seven counts of Hobbs Act Robbery,
18 U.S.C. § 1951(a) (Counts Seven, Eight, Ten, Twelve,
Fourteen, Sixteen, and Seventeen), six counts of brandishing
a firearm during a crime of violence, 18 U.S.C. § 924(c)
(Counts Three, Six, Nine, Eleven, Thirteen, and Fifteen), and
one count of possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1) (Count Four). [Id.]
Everett
has filed three pretrial motions. First, he moves to suppress
two out-of-court eyewitness identifications by a cashier and
store manager of a Dollar General store that Everett
allegedly robbed at gunpoint. Second, he moves to dismiss the
§ 924(c) charges. Third, he moves to dismiss the
felon-in-possession charge to the extent that it would
trigger the ACCA sentencing enhancement in § 924(e).
On
March 29, 2019, the Court held an evidentiary hearing on the
motion to suppress the eyewitness identifications. [Docs. 143
to 145 (exhibits); 151 (transcript).] Sergeant Phillip
Stroud, Officer Keith Todman, and Detective Joseph Morgan,
all of the Kennesaw Police Department, testified at the
hearing. Following the hearing, the government moved to
supplement the record to include additional disciplinary
records related to Officer Todman, which the Court granted.
[Docs. 149, 157.] Everett has filed a post-hearing brief in
support of his motion [Doc. 161], the government has filed a
response [Doc. 164], and Everett has filed a reply [Doc.
166].
The
Court first addresses the motion to suppress, and then turns
to the motions to dismiss.
II.
Motion to Suppress Identification [Doc. 116]
A.
Background
The
identification at issue in Everett's motion to suppress
occurred two months after the August 14, 2016 robbery of a
Dollar General store in Kennesaw, Georgia. Two witnesses
separately identified Everett as the robber in photo lineup
procedures. In discussing the facts of the robbery, the Court
relies primarily on Government's Exhibit 1, which
consists of surveillance video from inside the Dollar General
store during the time of the robbery. Where possible, the
Court cites the exact timestamps from the surveillance video.
The Court also relies on the testimony at the evidentiary
hearing, cited as “Tr.”, and the government's
other exhibits admitted at the hearing, cited as
“Gov't Ex.” After setting out the facts of
the robbery, the Court discusses the general procedures
applicable to the photo lineups here and then describe the
identification procedures that the Kennesaw Police Department
actually used with the two witnesses.
1.
The Dollar General Robbery
The
robbery occurred at the L-shaped checkout counter positioned
near the entrance to the Kennesaw Dollar General. (Tr. 4.) On
the short side of the “L, ” which abutted a wall,
there was one cash register. The short side of the
“L” was close to the door. The long side of the
“L” ran parallel to the wall, partially enclosing
the checkout area. The other end of the checkout area was
open to the store. At the time of the robbery, only one
cashier was working at the checkout counter, at the cash
register close to the door. The store manager went outside
through the door to gather shopping carts at 8:51:50 p.m.
(Gov't Ex. 5 [Doc. 144-1 at 6-7].)
The
robber-an African-American man wearing a hat or other head
covering, sunglasses, a white shirt with dark trim, and dark
pants-entered the store at 8:56:10 p.m. He walked past the
checkout area at 8:56:17 and walked briefly through the
store. At 8:58:28, he walked through the open end of the
checkout area. The cashier was facing the door while
restocking plastic bags and could not see the robber's
approach. The robber walked up behind the cashier and placed
a gun against her back. He told her to give him the money in
the cash register and to think about her life. (Tr. 4.)
Briefly, the cashier turned her head to look at the robber,
although it is not clear that she had a good opportunity to
view him at that time. The cashier was unable to open the
register because of “nerves” and because there
were customers in line. (Gov't Ex. 4 [Doc. 144-3 at
6-7].) About fifteen seconds after the robber first
approached the cashier, two customers came up to the checkout
counter, apparently not realizing that there was a robbery in
progress. The robber appeared to place his gun in his
waistband or pocket and paced behind the cashier and to her
side while the cashier rang up one of the customer's
purchases.
At
9:00:50 p.m., the store manager re-entered the store and the
robber started to walk out of the checkout area. The manager
encountered the robber heading toward her as she walked past
the checkout area, and at 9:01:06, the robber accompanied her
into the checkout area. The cashier looked toward the robber
several times as he encountered the manager and followed the
manager toward the register. Briefly, the robber briefly
displayed the gun before he again appeared to place it in his
waistband or pocket. In the checkout area, the store manager
and the cashier stood facing the robber for several seconds,
and at about 9:01:15, the manager began trying to open the
register. The cashier stood to the side of the register.
While the manager was trying to open the register, the
customer who was checking out left to get money or her wallet
from her car. (Tr. 5.) The cashier got the register open at
9:01:45, and both the manager and cashier stood to the side
with their hands raised as the robber stuffed money from the
register into a shopping bag for about 20 seconds. The
cashier and the manager both had an opportunity to view the
robber at that time.[2] The robber began walking out of the
checkout area at 9:02:07 and left the store at 9:02:18. The
victims then secured the store and alerted authorities to the
robbery. (Tr. 4.)
Sergeant
Phillip Stroud of the Kennesaw Police Department arrived at
the Dollar General store within minutes of the robbery. (Tr.
3-4.) Both the cashier and manager gave written witness
statements to Sergeant Stroud that evening. (Tr. 12;
Gov't Exs. 4, 5.) The cashier described the robber as a
black male with dark skin who was about 6'2” with a
slim build and was wearing sunglasses and a blue and white
shirt. (Tr. 15-16; Gov't Ex. 4.) The manager described
the suspect as a black male in his late 50s who was six feet
tall and was wearing a white polo shirt with blue stripes,
blue jeans, sunglasses, and a hat or bandanna on his head.
(Gov't Ex. 5; Tr. 16.) The store manager watched the
surveillance video with Sergeant Stroud, possibly before she
completed her witness statement. (Tr. 13-14.)
2.
Applicable Lineup Procedures
Police
departments in Georgia are required by state statute to have
written policies for identification procedures, including
live lineups, photo lineups, and show-ups. O.C.G.A. §
17-20-2(a). The written policies must provide, inter
alia:
(2) With respect to a photo lineup, having an individual:
(A) Who does not know the identity of the suspect conduct the
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