Upstairs in the home, the officers found the victim in her bedroom. The officers spoke with the victim, who told them what had happened. Both men were wearing heavy jackets, and the officer did not get a good look at their faces.
Officer Michael Lewis Hill, a crime scene officer with the Memphis Police Department, responded to a call with regard to this case. He took multiple photographs of the scene and he gathered evidence, including pieces of two condom wrappers from the upstairs landing of the stairwell. The officer collected a Play Station box, and a computer, which he submitted to be tested for fingerprints. The officer also took pictures of a suitcase that was resting on top of a sofa in the livingroom.
Officer Hill noted that the intruders entered through a downstairs window, the screen of which had been cut. He also saw no ridge detail on the condom wrappers or the computer and no DNA evidence on the bedding. The lieutenant said that she was the only female officer at the scene, so she took charge of speaking with the victim, and Lieutenant Cleveland oversaw the evidence collection. While speaking with the victim, Lieutenant Lawrence learned that the victim did not know her assailants. Following normal procedure, the victim was transported to MSARC for the collection of evidence and to receive medical attention.
The lieutenant said that the nurses there were unable to gather any DNA evidence during the examination.
She was later informed that a young man named Keithland Boyce was referred to by that nickname. The victim did not positively identify any of the men in this lineup. Lieutenant Lawrence said that the victim called her and told her that she had called the cellular phone that had been stolen from her during the home invasion. The victim said that a woman by the name of Pshawndra Oliver answered the phone. The lieutenant then called the phone and spoke with Ms.
She created three photographic lineups of Pshawn Oliver and Stefon Bobo. Oliver testified that, around the time of these events, Pshawn Oliver lived with her and their grandmother at the Highland Pines Apartments. Oliver identified a Motorola Razor phone that her brother purchased for her from the Defendant in March Oliver told the detective that she had the phone, and the detective came and confiscated the phone from her.
Oliver said she initially lied to police officers and told them that she had bought the phone. The nurse was unable, however, to find the presence of any sperm. As part of its case in chief, the State presented evidence about another home invasion that occurred on the same night as the home invasion during which the victim was raped. Cassius Ray Bafford testified that, on March 7, ,5 he was living in the Highland Pines apartment complex, which was located on a property connected to, but separated by a fence from, the property upon which the Winchester Village Town Homes were located.
On March 7, it was snowing, and snow had accumulated on the ground and streets. Bafford, who knew the Defendant because the two had worked together at a fast food restaurant, saw the Defendant on the same night of the burglary, shortly after his home had been burglarized. The Defendant lived in the same apartment complex as Bafford. When Bafford saw the Defendant, he warned him that someone had broken into his apartment. The Defendant, at the time, was accompanied by another man whom Bafford had never seen but later learned was Mr.
A few days after the burglary, Bafford saw Mr. Oliver wearing a pair of his pants that had been taken during the burglary. The Defendant presented several witnesses at trial. She said she spoke with Lieutenant Lawrence and gave the lieutenant permission to speak with the Defendant about a missing cellular phone. The lieutenant spoke with the Defendant for about fifteen minutes and then asked Love if she could take the Defendant to the police station for further questioning.
Love acquiesced, thinking at the time that the Defendant was not under arrest. The Defendant returned home a few hours later. Five days later, on April 2, , Love received a phone message saying that the Defendant had been arrested for rape. Love said she did not go to the police station with the Defendant because she felt confident he could handle his own affairs. James Walker, a forensic neuropsychologist, testified as an expert witness about eyewitness identification of a suspect perpetrating a violent crime.
One of those might be a well-intentioned officer who knows the likely suspect. The officer might give non-verbal cues, such as smiling or head nodding, that might lead a witness into an identification. The doctor said that witnesses misidentifying the perpetrator of a crime is the single most powerful factor in innocent people being convicted. Walker said he reviewed the lineups shown to the victim. He described the photographic lineup containing Mr. Oliver testified that he knew the Defendant from seeing him around their apartment complex. Oliver said he had been charged with raping the victim and that he pled guilty to that offense.
Oliver said that he took the picture of the Defendant that depicted the Defendant holding a gun. He said the picture was taken in a vacant apartment. Oliver was sure the gun depicted in the photograph was black because it was the same gun that was used during the rape of the victim. During cross-examination, Oliver testified that he took the picture of the Defendant while the two were in a vacant apartment in their apartment complex smoking marijuana.
He said that he had used his own equipment to print the picture. Oliver said the picture showed the Defendant holding the gun that Oliver had used during the rape. The gun, he said, was black. He agreed that, after the burglary, he and the Defendant saw Bafford at the apartment complex. Oliver said that he never purchased or received a phone from the Defendant. Based upon this evidence, the jury convicted the Defendant of aggravated rape, aggravated robbery, aggravated burglary, and employing a firearm with intent to commit a felony.
It is from these judgments that the Defendant now appeals. Analysis On appeal, the Defendant contends that: Motion to Suppress The Defendant contends that the trial court erred when it failed to suppress evidence that the victim identified him in a photographic lineup as a perpetrator of these crimes.
In support of his contention, he offers a quote from the Fox and Friends Morning Show during which the hosts were discussing the case of Trayvon Martin, a young teenager in Florida who was fatally shot allegedly based upon a misunderstanding of his intentions. The Defendant then notes that he was the only one in the photographic lineup wearing a hooded sweatshirt, the same clothing as the attacker, which made the lineup impermissibly suggestive, violating his constitutional rights. The State counters that the identification procedure was not unduly suggestive and that, under the totality of the circumstances, the identification was reliable.
Before trial, the Defendant filed a motion to suppress the photographic lineup.
Loving v. Virginia :: U.S. 1 () :: Justia US Supreme Court Center
At a hearing on that motion, the parties presented the following evidence: The victim testified that Lieutenant Lawrence showed her four7 different photographic lineups in relation to this case. The first of those four, which she viewed on March 19, , more than ten days after this 6 As will be discussed below, it is unclear from the record whether the Defendant was sentenced to four or six years for this offense. The sentencing transcript indicates the trial judge intended to sentence him to four years for this offense.
The judgment of conviction, however, appears to reflect a six year sentence. As stated below, we are remanding this case for entry of legible and consistent judgments and sentencing documents. The victim viewed a second lineup on March 22, The lieutenant showed her an instruction sheet for photographic lineups. The sheet stated that the victim needed to understand that the lineup was an important procedure designed to clear the innocent as well as to ensure accurate and reliable identification of the guilty.
Loving v. Virginia, 388 U.S. 1 (1967)
The procedure listed for identification on the sheet was as follows: The photographic display will contain pictures of persons of similar descriptions and similar poses. There is no significance to the order in which the photos will appear. If [the victim] make[s] any identification it will be done in writing.
The victim identified the photograph of Pshawn Oliver as being of one of the men who had raped her. She said he seemed to be the leader. She said she got a good look at Mr. Oliver because he was on top of her, face to face, during the rape.
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The victim also identified Oliver in court as one of the men who had raped her. On that same day, the lieutenant showed the victim a third photographic lineup. The victim did not identify any of the photographs in the third lineup as being of the second man who had raped her. The victim said she was shown a fourth photographic lineup on March 27, Before viewing the lineup, the lieutenant again instructed her on the procedure for viewing lineups. The victim recalled that, during the rape, the Defendant was wearing a gray, hooded jacket that covered his head and hair.
She could see him from his forehead to his chin, and she saw that he was wearing two diamond earrings. The victim also identified the Defendant at the hearing as the second man who had raped her.
U.S. Supreme Court
Lieutenant Lawrence testified that she showed the victim four photographic lineups with potential suspects in this case. She said that, when she created lineups, she attempted to put together pictures that generally fit the same description in some ways.
Before showing a witness a photographic lineup, she would read and show them a document that contained instructions to witnesses viewing a lineup. The lieutenant said that the victim had described the second man who raped her as: Possibly nineteen to twenty-two years old. Diamond earrings in both ears. He was wearing jeans, a gray hoodie over his head and referred to as Player J by suspect 1.
The lieutenant again reminded the victim about the appropriate considerations to make when viewing a photographic lineup. She wrote on the lineup that he was the second suspect. She clarified that she also would not want the suspect to be dressed differently so that he was an obvious choice. The victim was shown multiple photographic lineups before she was able to positively identify. When she made the identification, she quickly identified. Everyone in the photo array is wearing. Further, the victim testified that she saw [the Defendant] face-to-face throughout her rape.
Accordingly, this Court cannot conclude that the photographic arrays are unduly suggestive. The trial court went on to consider whether the photographic lineup was unduly suggestive in light of the totality of the circumstances, and it concluded that the lineup passed constitutional muster. It is from this judgment that the Defendant now appeals. An appellate court may consider the evidence presented at the suppression hearing as well as at trial in determining whether the trial court properly denied a pretrial motion to suppress.
In addition, the Tennessee Supreme Court has stated: The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. In Neil, the Court established a two-part analysis which the trial court must apply to determine the validity of a pretrial identification.
First, the trial court must determine whether the identification procedure was unnecessarily suggestive. Next, if the trial court determines that the identification was unnecessarily suggestive, it must then consider whether, under the totality of the circumstances, the identification procedure was nonetheless reliable. In Tennessee, it is unnecessary to apply the totality of the circumstances test described in Biggers if the trial court determines that the identification procedure was not unnecessarily suggestive.
Based on our review of the record, we agree with the trial court and conclude that there was nothing unnecessarily suggestive about the photo lineup. In the photograph of the Defendant, he appears to be wearing a white t-shirt. Upon a closer inspection of the picture, the Defendant also appears to be wearing an unzipped, black and grey jacket, a small part of which covers his white t-shirt. It is unclear from the picture whether the jacket has a hood attached to it. All of the photographs are taken on a white background. A suspect other than the Defendant has a slightly darker background and is the only subject wearing a brightly colored shirt.
The characteristics of the jacket worn by the Defendant in the photograph are not apparent from the photograph, and he appears to most noticeably be wearing a white t-shirt, similar to four of the men in the other photographs. Our inquiry need not go further, and the Defendant is not entitled to relief on this issue. Sentencing The Defendant next contends that the trial court erred when it sentenced him.
He asserts that the trial court failed to state which enhancement factors applied to which of his convictions. A space comedy by Seth MacFarlane in the vein of Galaxy Quest was something that was missing from the glut of TV science-fiction with apologies to Yahoo's belated Other Space , frequently dominated by straight-faced takes about the future or superheroes absorbed with an internal struggle of responsibility.
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But in reality, The Orville was something different. It wasn't a parody of Star Trek: The Original Series , it was a loving homage to it by a fan. That fan just so happens to be a guy who has made millions for Fox with gross-out humor and who not-so-tastefully sang a song at the Oscars about actress' boobs. The Orville wasn't the show we thought it was going to be, and that came as big suprise since MacFarlane's reputation is one that includes horny teddy bears.
Critics were probably the most shocked. They got first crack at early episodes of The Orville , and the reaction was overwhelmingly negative. Actually, it wasn't just your typical bad review, it was worse. It tries to be light and comedic, except when it's a morality play or an action hour or a hangout comedy set in space. Ryan's sentiments played like a broken record in negative reviews as MacFarlane's jokes about alien pee or synthesized pot brownies bookending life-or-death situations was the most common beef. The Orville wasn't a comedy and it wasn't a drama.
It seemed The Orville had set a course for disaster. But once the show actually premiered to tv audiences, and they immediately reminded us that what critics think doesn't mean much when it comes to a show's success. On the reviews aggregator Metacritic , The Orville has a critics' metascore of 36 out of By contrast, Metacritic users have given the show a sturdy 8. On Rotten Tomatoes , the disparity is even greater.
And that's not just the opinions of a few dozen viewers. That score is made from almost 6, reader reviews, which is almost 5, more than the new show with the next most user reviews. In short, viewers appear to love The Orville and can't wait to tell people about it, while critics appear to hate it. I wasn't really bummed by what the critics had to say because I knew there was a lot more that was coming.
The truth is, The Orville was never going to win over critics because it's a throwback and goes against everything modern television is. As a critic, I know that a show's sense of identity can directly correlate to whether I think it's good or not; with so much TV out there, and typically, when show doesn't seem to know what it is, it's not going to get very far.
