United States v. Lewis, 838 F. Supp. 2d 689

Defendants Theron Lewis and Keith Watson were indicted in 2011 for Hobbs Act robbery and firearm/equipment offenses; Thomas indicted for prior firearm ammunition possession.
The April 3, 2007 robbery at 1637 Harold Street, Dayton, Ohio involved three intruders: first intruder in the bedroom (unmasked), second intruder near the doorway, and third intruder at the front door who fired and killed Dwayne Burg, Sr.
Witnesses Dwayne Burg, Jr., Torrence Burg, Brandy Hurston, and Cassandra Powers observed the intruders and later described the first intruder as unmasked; Hurston observed the front door area and glimpsed the first intruder; Powers had a long line of sight to the third intruder.
Witnesses were shown numerous photos in the months after the robbery and could not identify suspects in those lineups.
In May 2009, a WHIO news broadcast displayed mugshots of Theron Lewis and Keith Watson; Burg, Jr. and Torrence Burg identified Lewis from the broadcast, and Hurston identified Watson from a subsequent lineup.
January 2010 lineups presented to Hurston and Powers contained Watson and Lewis photos; Hurston later identified Watson; Powers made identifications in January and January 2010 lineups.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the lineups using news photos were unduly suggestive	Lewis argues the news photo used in lineups created undue suggestion.	State that lineups mirrored or followed news images but contend reliability supports admissibility.	Hurston: lineup unduly suggestive; Brandy Hurston’s identification suppressed. Powers/Lewis identifications upheld.
Whether the identifications of Dwayne Burg, Jr. and Torrence Burg were reliable despite passage of time	The identifications were made after two years with news photo influence.	Other factors (viewing opportunity, certainty) support reliability.	Dwayne Burg, Jr. identification upheld; Torrence Burg identification upheld.
Whether Powers’ and Hurston’s identifications of Watson were unduly suggestive	Watson contends two-lineup sequence unduly suggested Watson.	Lineups used different photos; not unduly suggestive; reliability weighs in.	Powers’ identification upheld; Hurston’s identification upheld.

Perry v. New Hampshire, 132 S. Ct. 716 (2012) (due process protects against unnecessarily suggestive identifications; police conduct matters)
United States v. Peterson, 411 F. App’x 857 (6th Cir. 2011) (two-step analysis for suggestive identifications)
United States v. McComb, 249 F. App’x 429 (6th Cir. 2007) (first step unduly suggestive; if yes, second step considering totality of circumstances)
Ledbetter v. Edwards, 35 F.3d 1062 (6th Cir. 1994) (factors for reliability in lineups)
United States v. Stamper, 91 F. App’x 445 (6th Cir. 2004) (reliable identifications despite suggestive procedures)
United States v. Beverly, 369 F.3d 516 (6th Cir. 2004) (factors balancing reliability of identification)
Neil v. Biggers, 409 U.S. 188 (1972) (factors for evaluating reliability of eyewitness identifications)
Wade v. United States, 388 U.S. 218 (1967) (lineup procedures and admissibility of identification evidence)
Thigpen v. Cory, 804 F.2d 893 (6th Cir. 1986) (pre-Perry context of suggestive procedures in identifications)
Monsour, 893 F.2d 126 (6th Cir. 1990) (news photo identifications; balance reliability with suggestiveness)
Edwards, 949 F.2d 397 (6th Cir. 1991) (no police involvement; reliability despite suggestive photo)
Foster v. California, 394 U.S. 440 (1969) (two lineups showing same suspect can be unduly suggestive in some contexts)