Jack Conway, Attorney General of Kentucky, William Bryan Jones, Assistant Attorney General, for Appellant.
Linda Roberts Horsman, Assistant Public Advocate, for Appellee.
The Commonwealth appeals from a Court of Appeals Opinion reversing the trial court's denial of Joseph William Parker's (Parker) motion to suppress. Having reviewed the record and the briefs and having heard the oral arguments of counsel, we reverse the Court of Appeals.
On February 5, 2009, Susan Martin (Martin) was in the parking lot of a Lexington Target store when Parker grabbed her purse and struck her in the face. Parker and a friend, Justin Dwayne Masengale (Masengale), fled into a nearby neighborhood.
Martin went into the Target store and sought assistance from a Target employee, who called the police and EMS. While awaiting the arrival of emergency personnel, Rodney Branham (Branham), the store manager, got Martin a chair, gave her some water, got a phone so Martin could contact her husband, and asked her about the incident. Martin said that two men had accosted her as she entered the store and that one punched her in the face and stole her purse. She described the men as having light complexions and buzz haircuts, and said both men were wearing blue jeans. Furthermore, she stated that one man wore a dark hooded sweatshirt with a dark shirt underneath and a red ball cap, and the other wore a white sweatshirt with a powder blue shirt underneath and a blue hat. Martin said both sweatshirts had numbers or writing " like skateboarders wear" on them. A Target asset protection employee overheard this description and told Branham that she had seen the two men hanging around the store entrance. Branham asked that employee to see if she could find the two men on the store's security video. She did, and she and Branham made several still photographs of the men from the video. Branham then showed the photographs to Martin, and, without hesitation, she said the men in the photographs were the men who stole her purse.
In the meantime, Lt. Van Brackel of the Lexington Police Dept. arrived at the scene. Martin told Lt. Van Brackel what had happened and gave him the same description of the men that she had given to Branham. Lt. Van Brackel broadcast the description to officers in the area and advised them to be on the lookout for the men. He then saw Detective Iddings, who had been shopping, and asked for his assistance.
While Lt. Van Brackel was broadcasting the description, Branham received a telephone call from a customer who had witnessed the purse snatching. Branham gave the telephone to Lt. Van Brackel. The witness explained to Lt. Van Brackel that he had not stopped immediately because he had his four-year-old son with him. However, he called to say that he had just seen the two men in his neighborhood.
Lt. Van Brackel broadcast this information and officers apprehended Masengale shortly thereafter. Lt. Van Brackel drove Martin to where Masengale was being held, and she identified him as one of her assailants. Masengale was then transported to the police station for questioning, during which he identified Parker as the other man. Officers later arrested Parker and found Martin's cell phone and iPod in his possession.
Masengale moved to suppress the out-of-court identification by Martin, arguing that it was tainted when Branham showed Martin the photographs and by pre-identification actions of the police. He also argued that the Commonwealth had failed to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Parker joined in Masengale's motion, arguing that, because Martin's identification of Masengale was tainted, Masengale's identification of him was likewise tainted.
During the evidentiary hearing on these motions, the Commonwealth stated that it would not be asking Martin to make an in-court identification of either Masengale or Parker. Therefore, the only identification issue before the trial court was whether the out-of-court identification of Masengale by Martin was defective. Martin did not testify during that hearing. The trial court expressed some concern about her failure to do so and offered to conduct a second hearing to give her an opportunity to testify. However, both defendants and the Commonwealth indicated that they believed the trial court had sufficient evidence to make a determination without Martin's ...