USA v . John Brennick CR-03-006-B 07/31/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Crim. N o . 03-006-B Opinion N o . 2003 DNH 138 John Brennick
O R D E R
On January 8 , 2003, a grand jury returned a two count
indictment charging defendant John Brennick with interference
with commerce through robbery (Count I ) , 18 U.S.C. § 1951 (2000 &
Supp. 2003), and with transportation of a stolen motor vehicle
(Count I I ) , 18 U.S.C. § 2312 (2000 & Supp. 2003). On July 9,
2003, a grand jury issued a superseding indictment, charging
Brennick, in addition to the above described Counts I and I I ,
with a third count. Count I I I , a second count of interference
with commerce through robbery, 18 U.S.C. § 1951, is not at issue
in this order.
Pending before me is Brennick’s motion to suppress multiple
identifications. (Doc. N o . 9 ) . Brennick argues that I should
suppress all in-court and out-of-court identifications pertaining
to the armed robbery of a Wal-Mart because the photo array from which witnesses identified Brennick was impermissibly suggestive.
Because I do not find the photo array impermissibly suggestive, I
deny Brennick’s motion to suppress.
I.
On December 2 9 , 2002, at approximately 1:44 a.m., Concord
Police Department responded to a report of armed robbery at a
Wal-Mart located on Loudon Road in Concord, New Hampshire.1 When
police officers arrived, the robbery had already been completed
and the suspect had fled the store. Witnesses informed the
police officers that the suspect, later identified as Brennick,
drove a dark colored Oldsmobile, entered the Wal-Mart, and asked
for change at various registers before purchasing a pack of gum
and robbing a cashier, Mark Parker.
Parker was working at a cash register when Brennick
approached him. Brennick asked Parker for change and Parker
responded that he could not open the cash register to make
change. Brennick then picked up a pack of gum and asked if he
could purchase it and then receive change. Parker responded
affirmatively and directed Brennick to a different register where
1 As an evidentiary hearing on this motion was not held, the recitation of facts is largely derived from the police report.
-2- Parker handled the transaction.
When Parker handed Brennick his change from the transaction,
Brennick grabbed Parker’s arm and pulled him from behind the
register. Brennick then removed all of the money from the
register. When Parker began to get up and yell for help,
Brennick turned toward Parker, removed a large kitchen knife from
his pocket and pointed it at Parker. Brennick fled the store
with over $400 in cash.
Detectives Todd Flanagan and John Thomas of the Concord
Police Department interviewed Parker. Parker described Brennick
as a white male, approximately five feet eight inches, weighing
approximately 140-150 pounds, with gray hair and three distinct
scratches on the right side of his face. Parker stated Brennick
did not wear a disguise.
Detective Flanagan also interviewed Carrie Bresse, a Wal-
Mart employee working as a cashier during the time Brennick was
present in the store. Brennick approached Bresse in her checkout
line with a handful of change and asked Bresse if he could get
dollar bills for the change. Bresse informed Brennick that she
could only open her register for a purchase. Bresse described
the man as 35 to 40 years old with a “scruffy face.” She further
-3- stated he wore a red jacket and had three distinct scratches on
the right side of his face that appeared to be fingernail
scratches. Bresse told the detectives that she could pick him
out of a lineup.
At approximately 2:00 a.m., New Hampshire State Trooper Mark
Beaudoin, on patrol in the area surrounding Bedford, New
Hampshire, attempted to pull over a gray Oldsmobile sedan that he
suspected might be connected to the Wal-Mart robbery. The
driver, however, failed to pull the car over to the side of the
road and Trooper Beaudoin pursued the Oldsmobile in what became a
high-speed chase. The driver, later identified as John Brennick,
ultimately crashed the vehicle and was arrested on a number of
motor vehicle related offenses. Members of the New Hampshire
State Police informed the Concord Police Department that Brennick
had three distinct scratches on the right side of his face.
Detective Flanagan and Detective Thomas went to the
Hillsborough Country Jail, where Brennick was being held. The
items inventoried from Brennick included a red jacket, $499 in
cash and his wallet. Inside Brennick’s wallet was his New
Hampshire non-drivers identification card. Detective Flanagan
took a digital image of the non-driver identification card. In
-4- addition, Flanagan took a number of photos of him using a digital
camera. Because of the three scratches on the right side of
Brennick’s face, Flanagan was concerned that if any of the photos
were used in a photo array, they may be too suggestive. Flanagan
then attempted to take another photo of Brennick that did not
show the scratches on his face, but Brennick refused. Flanagan
then constructed a photo lineup using Brennick’s image from the
New Hampshire non-drivers identification card, along with seven
other photographs. Flanagan placed Brennick’s photograph in the
number two position, the second photo from the top left corner of
the photo array.
Parker was shown the photo array and he pointed to the
photograph of Brennick stating that he was the person who robbed
him at the Wal-Mart. In responding to Flanagan’s question of how
he would rate his identification on a scale of one to ten, he
rated it a 9.5. Bresse was also shown the lineup and positively
identified Brennick as the individual who came to her register
for change. Lastly, the photo array was shown to Carol Marcotte,
another Wal-Mart employee present at the time. She also
identified Brennick as the individual who robbed the Wal-Mart.
-5- II.
Brennick argues that the identifications from the photo
array should be suppressed because the photo array was
impermissibly suggestive. Specifically, Brennick argues that the
placement of his photo, in the number two position second in from
the top left corner, justifies suppression of the
identifications. He contends that this position is where “the
eye of any reader of English is drawn.” In addition, he claims
the individual in position number one, in the top left corner,
has a “dark complexion” that does not match that of Brennick. He
further argues that the array was impermissibly suggestive
because: he is the only person wearing a turtleneck with a
zipper; the background of the photo is “different” from the other
photographs; his hairstyle is different and his forehead is more
prominent than the foreheads of the individuals depicted in the
other photographs.
In determining whether a particular identification should be
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USA v . John Brennick CR-03-006-B 07/31/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Crim. N o . 03-006-B Opinion N o . 2003 DNH 138 John Brennick
O R D E R
On January 8 , 2003, a grand jury returned a two count
indictment charging defendant John Brennick with interference
with commerce through robbery (Count I ) , 18 U.S.C. § 1951 (2000 &
Supp. 2003), and with transportation of a stolen motor vehicle
(Count I I ) , 18 U.S.C. § 2312 (2000 & Supp. 2003). On July 9,
2003, a grand jury issued a superseding indictment, charging
Brennick, in addition to the above described Counts I and I I ,
with a third count. Count I I I , a second count of interference
with commerce through robbery, 18 U.S.C. § 1951, is not at issue
in this order.
Pending before me is Brennick’s motion to suppress multiple
identifications. (Doc. N o . 9 ) . Brennick argues that I should
suppress all in-court and out-of-court identifications pertaining
to the armed robbery of a Wal-Mart because the photo array from which witnesses identified Brennick was impermissibly suggestive.
Because I do not find the photo array impermissibly suggestive, I
deny Brennick’s motion to suppress.
I.
On December 2 9 , 2002, at approximately 1:44 a.m., Concord
Police Department responded to a report of armed robbery at a
Wal-Mart located on Loudon Road in Concord, New Hampshire.1 When
police officers arrived, the robbery had already been completed
and the suspect had fled the store. Witnesses informed the
police officers that the suspect, later identified as Brennick,
drove a dark colored Oldsmobile, entered the Wal-Mart, and asked
for change at various registers before purchasing a pack of gum
and robbing a cashier, Mark Parker.
Parker was working at a cash register when Brennick
approached him. Brennick asked Parker for change and Parker
responded that he could not open the cash register to make
change. Brennick then picked up a pack of gum and asked if he
could purchase it and then receive change. Parker responded
affirmatively and directed Brennick to a different register where
1 As an evidentiary hearing on this motion was not held, the recitation of facts is largely derived from the police report.
-2- Parker handled the transaction.
When Parker handed Brennick his change from the transaction,
Brennick grabbed Parker’s arm and pulled him from behind the
register. Brennick then removed all of the money from the
register. When Parker began to get up and yell for help,
Brennick turned toward Parker, removed a large kitchen knife from
his pocket and pointed it at Parker. Brennick fled the store
with over $400 in cash.
Detectives Todd Flanagan and John Thomas of the Concord
Police Department interviewed Parker. Parker described Brennick
as a white male, approximately five feet eight inches, weighing
approximately 140-150 pounds, with gray hair and three distinct
scratches on the right side of his face. Parker stated Brennick
did not wear a disguise.
Detective Flanagan also interviewed Carrie Bresse, a Wal-
Mart employee working as a cashier during the time Brennick was
present in the store. Brennick approached Bresse in her checkout
line with a handful of change and asked Bresse if he could get
dollar bills for the change. Bresse informed Brennick that she
could only open her register for a purchase. Bresse described
the man as 35 to 40 years old with a “scruffy face.” She further
-3- stated he wore a red jacket and had three distinct scratches on
the right side of his face that appeared to be fingernail
scratches. Bresse told the detectives that she could pick him
out of a lineup.
At approximately 2:00 a.m., New Hampshire State Trooper Mark
Beaudoin, on patrol in the area surrounding Bedford, New
Hampshire, attempted to pull over a gray Oldsmobile sedan that he
suspected might be connected to the Wal-Mart robbery. The
driver, however, failed to pull the car over to the side of the
road and Trooper Beaudoin pursued the Oldsmobile in what became a
high-speed chase. The driver, later identified as John Brennick,
ultimately crashed the vehicle and was arrested on a number of
motor vehicle related offenses. Members of the New Hampshire
State Police informed the Concord Police Department that Brennick
had three distinct scratches on the right side of his face.
Detective Flanagan and Detective Thomas went to the
Hillsborough Country Jail, where Brennick was being held. The
items inventoried from Brennick included a red jacket, $499 in
cash and his wallet. Inside Brennick’s wallet was his New
Hampshire non-drivers identification card. Detective Flanagan
took a digital image of the non-driver identification card. In
-4- addition, Flanagan took a number of photos of him using a digital
camera. Because of the three scratches on the right side of
Brennick’s face, Flanagan was concerned that if any of the photos
were used in a photo array, they may be too suggestive. Flanagan
then attempted to take another photo of Brennick that did not
show the scratches on his face, but Brennick refused. Flanagan
then constructed a photo lineup using Brennick’s image from the
New Hampshire non-drivers identification card, along with seven
other photographs. Flanagan placed Brennick’s photograph in the
number two position, the second photo from the top left corner of
the photo array.
Parker was shown the photo array and he pointed to the
photograph of Brennick stating that he was the person who robbed
him at the Wal-Mart. In responding to Flanagan’s question of how
he would rate his identification on a scale of one to ten, he
rated it a 9.5. Bresse was also shown the lineup and positively
identified Brennick as the individual who came to her register
for change. Lastly, the photo array was shown to Carol Marcotte,
another Wal-Mart employee present at the time. She also
identified Brennick as the individual who robbed the Wal-Mart.
-5- II.
Brennick argues that the identifications from the photo
array should be suppressed because the photo array was
impermissibly suggestive. Specifically, Brennick argues that the
placement of his photo, in the number two position second in from
the top left corner, justifies suppression of the
identifications. He contends that this position is where “the
eye of any reader of English is drawn.” In addition, he claims
the individual in position number one, in the top left corner,
has a “dark complexion” that does not match that of Brennick. He
further argues that the array was impermissibly suggestive
because: he is the only person wearing a turtleneck with a
zipper; the background of the photo is “different” from the other
photographs; his hairstyle is different and his forehead is more
prominent than the foreheads of the individuals depicted in the
other photographs.
In determining whether a particular identification should be
suppressed, I apply the two-pronged test established in Neil v .
Biggers, 409 U.S. 1 8 8 , 199-200 (1972). First, I determine if the
identification process was “impermissibly suggestive.” Id.; see
United States v . Maguire, 918 F.2d 2 5 4 , 263 (1st Cir. 1990) cert.
-6- denied 499 U.S. 950 (1991) (applying the two-pronged test to
photo array). Second, I must determine whether, under the
“‘totality of the circumstances,’ the identification was reliable
even though the confrontation procedure was suggestive.” Id. In
Biggers, the Supreme Court delineated five factors to be
considered in analyzing the totality of the circumstances in the
second prong:
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.
Id. If I find that the photo array was not impermissibly
suggestive, I need not proceed to analyze whether the photo array
was reliable under the totality of the circumstances. See
Maguire, 918 F.2d at 263.
I find that the photo array was not impermissibly suggestive
and therefore should not be suppressed. First, the fact that
English readers read from left to right and top to bottom does
not convince me that the identifications by three Wal-Mart
employees should be suppressed. In addition, the photograph in
the number one position does not generate such a remarkable
-7- contrast with Brennick as to warrant discussion of Brennick’s
argument that the witnesses’ eyes would skip right over him.
Second, none of the witnesses described Brennick as wearing a
zipper turtleneck and therefore it is irrelevant that he is the
only one in the photo array wearing one. Third, the background
of Brennick’s photograph does not vary substantially from other
photographs in the array. In fact, the background is identical
to the two photographs to the right of Brennick. Lastly, I
disagree that Brennick’s hair style and forehead are so
distinctive and different from the others in the array as render
the array suggestive.
Because I find the photo array was not impermissibly
suggestive, I decline to analyze the reliability of the
identifications under the totality of the circumstances.
Furthermore, I deny Brennick’s request to have an evidentiary
hearing to aid me in assessing the totality of the circumstances
under which the witnesses were shown the photo array. See United
States v . Isom, 85 F.3d 8 3 1 , 838 (1st Cir. 1996) (A criminal
defendant is not entitled as of right to an evidentiary hearing
and must demonstrate a need for special treatment).
-8- CONCLUSION
For the forgoing reasons, I deny the defendant’s motion to
suppress identifications. (Doc. N o . 9 ) . In addition, I deny the
defendant’s motion in limine, without prejudice, as moot in light
of the July 9, 2003 superseding indictment. (Doc N o . 1 0 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
July 3 1 , 2003
cc: Bjorn Lange, Esq. Terry Ollila, Esq.
-9-