State v. Talley

• Court: Superior Court of Delaware
• Decided: January 12, 2022
• Docket: 2001014954
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) ) KEITH TALLEY, ) ID NO. 2001014954 ) Defendant. ) ) ) ) )

Date Submitted: January 10, 2022 Date Decided: January 12, 2022

Upon the Defendant’s Motion to Suppress. DENIED.

ORDER

Albert J. Roop, V, Esquire, John W. Downs, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware.

Misty A. Seemans, Esquire, Wilmington, Delaware, Attorney for Defendant.

SCOTT, J

1 INTRODUCTION Defendant Keith Talley (“Mr. Talley”) is charged with murder in the first

degree and associated charges in connection with allegations arising from the death

of Jaron Smullen on December 3, 2019. Mr. Talley moved to suppress: (1) Witness

1’s identification of Mr. Talley based on single picture shown; (2) Witness 4’s

identification of Mr. Talley based on a six-pack photo line-up; (3) Witness 2’s

identification of Mr. Talley based on a six-pack photo line-up; and (4) if the out of

court identifications are impermissible, then any in court identifications stemming

from them. Because the identifications were not unnecessarily suggestive and there

is not a likelihood of irreparable misidentification, the Motions to Suppress are

DENIED.

STATEMENT OF FACTS On December 3, 2019, the Wilmington Police Department (“WPD”)

responded to the 100 Block of East 24th Street for a shooting. Two 911 callers

described the shooter as running from the scene. Arriving officers located a victim

laying in the doorway of 112 E. 24th Street with a gunshot wound to his lower torso.

The victim succumbed to his injury and was pronounced dead on December 4, 2019.

During its investigation, WPD collected video evidence and interviewed

eyewitnesses. There are three witnesses, in chronological order, WPD interviewed

2 which their identifications of Mr. Talley gave rise to these suppression motions:

Witness 1, Witness 4 and Witness 2.

On December 4, 2019, and December 6, 2019, WPD interviewed Witness 1.

In the December 4th interview, Witness 1 does discuss things she heard about the

shooting on December 3rd. But Witness 1 also refers to Mr. Talley by his nickname,

“KJ,” and describes Mr. Talley as wearing all-black. Witness 1 also describes

knowing “KJ” well enough to identify him, then does so based upon the police

showing Witness 1 a single photograph of Mr. Talley.

In the December 6th interview, Witness 1 described being present while “KJ”

and “J-Town” (the victim) argued, leaving the area, and later receiving a phone call

that KJ shot J-Town. While Witness 1’s information about KJ shooting J-Town may

be hearsay, Witness 1’s confirmation about being present for the argument leading

up to the shooting, describing KJ’s clothing, and identifying KJ are admissible

statements at trial. To be clear between the two interviews with Witness 1, Witness

1 did not identify KJ as the shooter. Witness 1 only identified KJ as the individual

arguing with J-Town as Witness 1 did not witness the shooting and was familiar with

Mr. Talley to have the ability to identify him.

WPD interviewed Witness 4 on January 15, 2020. Witness 4 described an

argument between the defendant and the victim, discusses a video on a cellphone

3 possibly depicting parts of the argument, states the defendant shot the victim, and

identified the defendant in a 6-pack line-up.

WPD arrested the defendant, Keith Talley, on January 27, 2020.

WPD interviewed Witness 2 on April 22, 2020. During that interview, in

addition to identifying the defendant out of a six-pack photo line-up, Witness 2 stated

the following:

• Friends with both “KJ” and “J-Town” and is reluctant to get involved. • KJ didn’t mean to do that. • If I could have stopped it, I would have. • But I couldn’t, “it was past go.” • “I’m not jumpin’ in front of a bullet.” • “They was arguing,” referring to KJ and J-Town. • Doesn’t know what about. • Notes somebody has a camera or a phone, and upon listening to the recording, the listener would hear KJ say he “didn’t want no smoke” or to fight. • J-Town is bigger than KJ. • J-Town kept motioning like he was going to get a gun or something. In context, these statements are describing the seconds leading up to the shooting. In the State of Delaware’s (“State”) response, the State draws attention to

defense counsel failing to include there are two video segments to the argument,

minutes apart, which are captured on two separate views of video surveillance of the

4 altercation between Mr. Talley and the victim as well as Mr. Talley feeing from the

scene.

When asked in the interview, Witness 2 acknowledges there are two parts to

the argument between Mr. Talley and the victim but could not confirm whether the

Mr. Talley had a gun.

The State indicted the defendant on the first Grand Jury following the courts

reopening during the COVID-19 Pandemic, July 13, 2020.

On December 7, 2021 – 42 days before trial - the State provided redacted

witness statements under a protective order to defense counsel.

On December 22, 2021, Mr. Talley moved to suppress the out-of-court

Identification and In-Court Identification. And on December 29, 2021, the State

responded.

Jury selection is scheduled to begin on January 13, 2022, and trial is set to

begin on January 18, 2022.

DISCUSSION I. Witness 1’s Identification on December 4, 2019 by a Single Photograph “An identification procedure will not pass constitutional muster where it is so

impermissibly suggestive as to give rise to a very substantial likelihood of

5 irreparable identification.”1 To violate due process, “the unnecessarily suggestive

identification procedure must also carry with it the increased danger of an irreparable

misidentification.”2 If an identification is impermissibly suggestive, evidence of the

identification will not be excluded at trial so long as the identification is reliable.3

When determining if an identification procedure is impermissible, this Court must

determine under the totality of the circumstances: (1) whether the procedure used

was unnecessarily suggestive; and (2) whether there was a likelihood of

misidentification.4 In determining the reliability of the identification, The United

States Supreme set forth the following factors to consider:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the crime and confrontation.5 Mr. Talley argues the procedure used to conduct the single photograph

identification was unnecessarily suggestive, thus, compromising Mr. Talley's right

1 Younger v. State, 496 A.2d 546, 550–51 (Del.1985) (internal quotations omitted) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). 2 Id. (citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). 3 State v. Sierra, 2011 WL 1316151, at *3 (Del.Super.Apr.5, 2011). 4 Richardson v. State, 673 A.2d 144, 147 (Del.1996) (citing Harris v. State, 350 A.2d 768, 770 (Del.1975)). 5 Richardson, 673 A.2d at 148 (citing Manson v. Brathiwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1997)). 6 to due process. Specifically, Witness 1 was shown a single photograph of Mr. Talley

and identified him as the individual arguing with the victim, however, did not

witness the shooting. Mr. Talley contends a single photo array is impermissibly

suggestive. However, the Delaware Supreme Court held showing a single

photograph is not, ipso facto, a denial of due process and that the totality of the

surrounding circumstances must be considered.6

A. When considering the totality of the circumstances, there is not a denial of due process based on Mr. Talley being identified by Witness 1.

Mr. Talley contends a single photograph array is per se impermissibly

suggestive. In the State’s Response, it points this Court to Hickman and Redden,

two cases in which eyewitness’s were shown a single photograph and identified the

defendant as the suspect. However, this Court does not find this caselaw to be

applicable to the facts before it as this witness is not identifying the shooter as Mr.

Talley.

It is clear to this Court the identification of Mr. Talley related to events leading

up to the crime. Witness 1 only identified Mr. Talley as the person who Witness 1

saw arguing with the victim and Witness 1 described what Mr. Talley was wearing

on the date Witness 1 saw Mr. Talley and the victim arguing. There is nothing in

6 Stanford v. State, 608 A.2d 730, 1992 WL 21122 (Del. 1992) (citing Redden v. State, Del.Supr., 269 A.2d 227, 228-29 (1970). 7 these facts to suggest Witness 1 is identifying Mr. Talley as the shooter so previous

cases relating to a witness identifying a perpetrator based on single photograph do

not apply. The showing of a single photograph to Witness 1 was not unnecessarily

suggestive as “an identification is suggestive when the police conduct it in such a

way that the witness' attention is directed to a particular individual as the suspect

upon whom the police have focused.”7 This did not occur based on these facts

because police did not direct Witness 1 to a particular individual as the suspect who

committed the crime. After considering the Neil factors, the Court concludes, under

the totality of the circumstances, Witness 1’s identification of Mr. Talley was

reliable. Accordingly, since the Court has also found the identification procedure

used was not impermissibly suggestive, Mr. Talley's motion must be denied as he

has not met his burden in demonstrating that there was a “very substantial likelihood

of irreparable misidentification.”8

II. Witness 4’s Identification on January 15, 2020, by Use of Six-Pack Photo Line-Up Mr. Talley argues the State did not give any information about the six-pack

photo line-up in which Witness 4 positively identified Mr. Talley. Without any basis

to his argument nor any caselaw in support, Mr. Talley argues given the complete

lack of information regarding the process used by police during Witness 4’s

7 U.S. ex rel. Goodyear v. Del. Corr. Ctr., 419 F.Supp. 93, 96 (D. Del. 1976). 8 Neil v. Biggers, 409 U.S. 188, 198 (citing Simmons, 390 U.S. 384). 8 identification of Mr. Talley, the identification should be suppressed as impermissibly

suggestive and unreliable.

A. The Photo Array Was Not Unnecessarily Suggestive and There Is No Danger of Irreparable Misrepresentation

Mr. Talley does not allege the photo array was impermissibly suggestive as to

demonstrate police conduct directed Witness 4 to a particular individual as the

suspect upon whom the police have focused. Mr. Talley suggests this Court should

find the positive identification from a six-pack photo line-up to be impermissibly

suggestive and unreliable because the only information in the police report is

Witness 4 positively identified Mr. Talley from the photo array. Without anything

else to go on, the Court will not render this identification impermissibly suggestive

or unreliable, especially given Witness 4, like Witness 1 was familiar with Mr.

Talley. After considering the Neil factors, the Court concludes, under the totality of

the circumstances, Witness 4’s identification of Mr. Talley was reliable.

Accordingly, since the Court has also found the identification procedure used was

not impermissibly suggestive, Mr. Talley's motion must be denied as he has not met

his burden in demonstrating that there was a “very substantial likelihood of

irreparable misidentification.”9

9 Id. 9 III. Witness 2’s Identification on April 22, 2020, by Use of Six-Pack Photo Line-Up Mr. Talley argues the identification is impermissibly unreliable because the

photo array for Witness 2’s identification was based on Witness 1’s “impermissible

and unreliable identification” of Mr. Talley from a single photograph so it is a fruit

of a poisonous tree. Additionally, Mr. Talley argues the identification failed factors

three through five of the Neil reliability test because there is nothing to indicate the

witness had given a prior description of the defendant, how certain the witness was

about the identification, and 4.5 months lapsed between the offense and the

identification.

A. The Photo Array Was Not Unnecessarily Suggestive and There Is No Danger of Irreparable Misidentification.

Mr. Talley does not allege the photo array was impermissibly suggestive as to

demonstrate police conduct directed Witness 2 to a particular individual as the

suspect upon whom the police have focused. Mr. Talley suggests this Court should

find the positive identification from six-pack photo line-up to be impermissibly

suggestive and unreliable because the identification was tainted by knowing Mr.

Talley had been arrested and the identification is the “fruit of the poisonous tree” as

Witness 1’s identification was impermissibly suggestive. This Court has addressed

Witness 1’s statement and has found the identification to stand, therefore, Mr.

Talley’s argument regarding the fruit of a poisonous tree is moot.

10 Additionally, the Court will not render this identification unreliable, like Mr.

Talley contends, because just like Witness 1 and Witness 4, Witness 2 was also

familiar with Mr. Talley. After considering the Neil factors, the Court concludes,

under the totality of the circumstances, Witness 2’s identification of Mr. Talley was

reliable. Accordingly, since the Court has also found the identification procedure

used was not impermissibly suggestive, Mr. Talley's motion must be denied as he

has not met his burden in demonstrating that there was a “very substantial likelihood

of irreparable misidentification.”10

IV. Subsequent In-Court Identification Defense argues that any in-court identification will not be reliable and seeks

suppression of the in-court identification. The likelihood of misidentification is what

violates a defendant's right to due process, causing the exclusion of evidence.11

“[T]o satisfy due process, pretrial identifications resulting from a suggestive process

must comport with the two-part analysis set forth by the United States Supreme

Court in Neil v. Biggers.”12 First, Defendant must prove the identification was

impermissible or unnecessarily suggestive.13 If the Defendant meets his burden, the

State must prove the unnecessarily suggestive identification would not lead to

10 Neil, 409 U.S. at 198 (citing Simmons, 390 U.S. 384) 11 Id. 12 Byrd v. State, 2011 WL 3524420, at *3 (Del.) 13 Id. 11 misidentification in court.14 The likelihood of misidentification depends on the

following factors:

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.15 If this Court determines the out-of-court identification is inadmissible, then so

is the in-court identification, unless it “did not result from the earlier confrontation

... but was independent thereof.16 In Hubbard, the Court found nothing improper

about the victim's pretrial identification and rejected defendant's argument that the

unequivocal in-court identification was impermissibly tainted by the suggestive

pretrial identification.17 Also, in Smith, the Delaware Supreme Court held that

although unnecessary suggestiveness tainted the out-of-court confrontation

procedures, the in-court identifications were not unreliable as to warrant reversal.18

Here, there is no substantial likelihood of misidentification and as discussed

above, the Neil v. Biggers factors have been satisfied. For the reasons stated above,

the Court finds Witness 1, Witness 4, and Witness 2’s pretrial identifications of Mr.

14 Id. 15 Biggers, 409 U.S. at 198. 16 Byrd, 2011 WL 3524420, at *3. 17 782 A.2d 264 (Del.2001). 18 Smith v. State, 352 A.2d 765 (Del.1976). 12 Talley are not impermissibly suggestive and are reliable, and therefore, their future

in-court identifications of Mr. Talley are admissible at trial, consistent with each

witness’s previous testimony or relationship with Mr. Talley.

CONCLUSION

Based on the forgoing, (1) Defendant's Motion to Suppress the single photo

identification from Witness 1 is DENIED; (2) Defendant's Motion to Suppress the

six-pack photo line-up from Witness 4 and 2 is DENIED; and (3) Defendant's

Motion to Suppress In-Court identifications is DENIED.

IT IS SO ORDERED.

/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.