United States District Court, D. New Mexico
Charles E. Knoblauch Paul Mysliwiec Attorney for Mr.
Fontanez Assistant United States Attorneys.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
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
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.
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;
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.
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
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
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.
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.
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
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
Sharber: I don't know his real name.
SA Haanes: What's his name?
SA Hotle: SS?
Sharber: Super Sport.
SA Haanes: Super Sport?
SA Hotle: Dwayne Johnson, Dashawn Johnson.