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United States v. Robertson

United States District Court, D. New Mexico

January 7, 2020


          Charles E. Knoblauch Paul Mysliwiec Attorney for Mr. Robertson.

          Eva M. Fontanez Assistant United States Attorneys.



         THIS MATTER is before the Court on Defendant Dashawn Robertson's Motion to Suppress Identification Evidence. Doc. 34. The government filed a timely Response in Opposition. Doc. 38. The Court then held an evidentiary hearing on the motion over the course of two days-November 4, 2019, and December 10, 2019-during which time it received exhibits and heard testimony from four witnesses. Having now considered the motion, exhibits, witness testimony, relevant law, and being otherwise fully informed, the Court finds that the motion is not well-taken and will accordingly be DENIED.


         This case arises from the shooting of Desmick Sharber on September 12, 2017. Doc. 38 at 2. While the defense does not dispute the fact that Mr. Sharber was shot, it contends that his identification of Defendant Dashawn Robertson as the shooter was mistaken due to unduly suggestive procedures used by the police. Doc. 34. At issue in this motion is whether the Court should accordingly bar evidence of the identification at trial under the Fifth Amendment's Due Process Clause or Federal Rule of Evidence 403. See Id. The following represents the Court's findings of fact, based on the exhibits submitted by the parties and the testimony received at the evidentiary hearing.[1]

         I. Facts

         At approximately 12:27 a.m. on the morning of September 12, 2017, officers with the Albuquerque Police Department responded to a report of a shooting in a parking lot near 1331 Ortiz Drive Southeast. Doc. 55 at 9:13-17 (Transcript of November 4, 2019 Evidentiary Hearing) (“Tr.”). Upon arriving, the responding officers learned that a male victim named Desmick Sharber had been shot eight times in the chest and had been taken to the Veterans Association hospital down the street. Tr. 9:21-10:7. Kacy Ramos, a Task Force Officer (TFO) working with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), arrived shortly thereafter and took over the investigation. Id. at 7:13-20; 10:11-12.

         TFO Ramos testified that he interviewed several witnesses at the scene of the shooting. Id. at 10:16. One was Miesha Benson, Mr. Sharber's girlfriend and the mother of his child. Id. at 10:19-11:4. Ms. Benson told TFO Ramos that she was asleep in her apartment when she heard several gunshots and the sound of a motorcycle. Id. at 11:4-6. She then ran down to the parking lot, where she saw Mr. Sharber lying on the ground unconscious. Id. at 11:6-10. Ms. Benson then loaded Mr. Sharber into the back of her vehicle with the help of several bystanders and drove him to the hospital. Id. at 11:12-13.

         Ms. Benson also told TFO Ramos that she believed the shooting was related to rumors on the street that Mr. Sharber had “snitched” on a person named Angelo Burdex several years earlier. Id. at 11:23-12:10. ATF Special Agent (SA) Erik Haanes testified about the history between the two men. In the fall of 2015, the ATF was investigating Mr. Sharber for distributing crack cocaine in the Albuquerque area. Id. at 91:11-24. Agents set up two controlled drug buys to bust him, and during those controlled transactions observed him interacting with a second man who appeared to be his supplier. Id. at 92-93. Mr. Sharber was subsequently arrested, and during a post-arrest interview identified the supplier as Angelo Burdex. Id. at 94:16-18. In November of 2015, a federal grand jury returned an indictment charging both Mr. Sharber and Mr. Burdex with conspiracy to commit drug-trafficking. Id. at 95:7-9. Both pled guilty, and Burdex was sentenced in 2016 to five years in prison. Id. at 95:15-16, 21-22; 12:13-15. Ms. Benson told TFO Ramos that she thought the shooting had to do with the Burdex case because one of Mr. Burdex's sisters had recently attacked her for dating Mr. Sharber, whom the Burdex family considered a “rat.” Id. at 13:22-24.

         In addition to providing TFO Ramos with a potential motive for the shooting, Ms. Benson also provided the name of the potential shooter. In a second interview at the hospital, she relayed that she had heard from friends and others on the street that the shooter was a person named “SS” or “Super Sport.” Id. at 15:4-5, 17-21. Ms. Benson also stated that she had seen SS at a mutual acquaintance's house two weeks earlier. There, he reportedly complained about Mr. Sharber sending Angelo Burdex to prison by ratting on him and said that he was “watching out” for Sharber, a statement Ms. Benson took as a threat. Id. at 18:3-9; 19:15-19. After Ms. Benson named “SS” as the potential shooter, TFO Ramos contacted a detective in the Albuquerque Police Department's gang unit who immediately identified him as the defendant, Dashawn Robertson. Id. at 20:1-7.

         TFO Ramos also interviewed a second witness near the scene of the shooting, a person referred to as “C.G.” Id. at 25:17-21. C.G. stated that he was standing on the balcony of an apartment building facing the parking lot when he heard a verbal altercation begin to take place. Id. at 26:1-4. He then reportedly heard someone say “I'm your bro” before several gunshots rang out. Id. at 64:4-21. C.G. then saw people scattering and observed a black male with a white shirt running from the area. Id. 26:6-8.

         Mr. Sharber could not be interviewed on the night of the shooting because he was taken into surgery immediately. Id. at 83:11-13. TFO Ramos instead planned to speak with him at the hospital the next morning, approximately 36 hours after the shooting. Id. at 83:20. Before leaving for the hospital, TFO Ramos pulled a driver's license photograph of Mr. Robertson from a police database, a copy of which has been admitted into evidence as Government's Exhibit 1. Id. at 20:13-21; 24:3. He then alerted Special Agent Haanes and another Task Force Officer, Tim Hotle, that he had identified a suspect. Id. at 20:13-15.

         Present at the hospital on the morning of September 13 were TFO Ramos, Special Agent Haanes, TFO Hotle, and Special Agent Nathan Campton. Id. at 28:18-19. The officers first showed the driver's license photograph to Ms. Benson, who was in the waiting room of the intensive care unit. Id. at 24:13-14. She identified the pictured individual as SS, the person rumored to be the shooter and whom she had seen making threatening statements about Mr. Sharber two weeks prior. Id. at 24:15-16. The officers then entered Mr. Sharber's hospital room after receiving permission to do so from a nurse. Id. at 82:8-14. The audio recording of the conversation that followed, as well as a transcript of it, were admitted at the hearing as Government's Exhibits 2 and 3. Id. at 30:2; 36:21. An enhanced version of the audio recording was also admitted as Defendant's Exhibit B. Id. at 125:22.

         After a brief period of small talk, SA Haanes started the questioning by stating: “I have my suspicions on how this happened. Is it back related to our deal? No?” Gov't Ex. 3 at 2:16-18. The transcript next shows an unidentified male speaker asking “Deshawn?” Id. at 19. In the enhanced version of the audio recording, however, the speaker can also be heard asking about another name as well: “Deshannon.” Def. Ex. B. Although “Deshannon” sounds close to Dashawn, TFO Ramos testified that it actually refers to Angelo Burdex, whose middle name is Deshannon. Tr. at 71:9- 11. In response to the unidentified speaker asking “Deshawn? Deshannon?” Mr. Sharber responded, “Yeah.” Gov't Ex. 3 at 2:20. Several moments later, the following exchange occurred:

SA Haanes: But he thinks you are. Who did this?
Sharber: I don't know his real name.
SA Haanes: What's his name?
Sharber: SS.
SA Hotle: SS?
Sharber: Super Sport.
SA Haanes: Super Sport?
Sharber: Yeah.
SA Hotle: Dwayne Johnson, Dashawn Johnson. ...

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