(For all intents
and purposes, the victim of the following offense in this
case shall remain
anonymous and will be referred to as "victim" or "TH").
This offense stems from the kidnapping and subsequent robbery
of (TH) who was held up at gun point in the Cherry Creek Mall parking
garage and forced
to drive to a nearby
bank to withdraw
$1,000.00. After the perpetrator received
the money, the victim dropped
him off at a nearby
strip mall where he fled on foot subsequently ending
the episode.
STATEMENT OF THE FACTS:
On March 2, 2000, the victim of the aggravated
robbery and one kidnapping count,
went to the Cherry Creek Mall in Denver, accompanied by her mother, her grandmother, and her sister, and a friend.
(v 19, p40-41).
They were accompanied by the victim's
two-week old son, and her three-year old niece, the alleged victims
in the other kidnapping counts.
(Id.)
After shopping, the victim parted ways with her mother,
grandmother, sister and friend exiting the mall into the parking garage area and went to her minivan with her niece and son. (Id. At 78). After placing
the children inside the vehicle, the victim hears
a male voice say, "Excuse me, Miss." (Id. At
81). She turned around and saw a man with a gun who immediately went to the other side of the van and sat in the passenger
seat of the vehicle. (Id. At 81). The man told her to drive to her bank and cash a check for $2,000.00.
(Id. At 83).
The victim drove for approximately five minutes, pulling
up to a drive through
teller line. (Id. At 88). She ultimately
cashed a check for
$1,000.00 and gave it to the robber.
(Id. At 89). The robber grabbed both the money and her driver's license,
examining her license
and told her that he was memorizing her face and address
so that he could come after her if she went to the police. (Id. At 91).
Throughout the
encounter, the robber ordered the victim
not to look at him, and used his hand to
block his face. (Id. At 139-140). The victim
observed on his hand a large tattoo
of an image that looked like a sun. (Id. At 124-25). (See Victim's police
report pgs. 1-4). After receiving the money,
the victim dropped
the robber off at a nearby
strip mall where he fled on foot, thus ending
the episode. (Id.)
The robber
was inside the vehicle for approximately 22-25 minutes, wore no gloves,
and aside from handling the victim's license,
touched numerous places inside the vehicle. (vl9, pl61-62). However,
the police, though requested by the victim,
never checked the license or her vehicle
for fingerprints or tried to obtain any other physical evidence. (vlO, p225-30).
In the victim's own written statement given to the police later
that day, she wrote that she "did not get a good look" at the robber's face. (P. Ex. 33 at 4). She described him as a white male, 17-20 years old,
wearing a gray or tan ski cap with
folded brim, a gray or tan sweatshirt
(or jacket or sweater) and blue or black baggy nylon "parachute" sweat pants.
She said he might have had dark
hair underneath the ski cap.
(Id.) Over a week
later, however, she told police
detective that the robber was six feet tall, had a silver
gun, and dirty
blond hair. (vlO, p217).
(After observing a 9:00pm Channel
2 news report describing a suspect of a robbery/kidnap as a tall, thin white male with short cut hair, allegedly matching the description of Hogan at the time of his arrest, Investigator Nelson, the arresting
officer in Hogan's federal
case, (see
Preamble), contacted Detective White with the Denver Police Department informing him that she has the Cherry Creek robbery suspect in custody
Investigator Nelson offered
to provide a photo array
for him since Detective White
candidly admitted that the victim's
description of the suspect was so meager
that
he would not have been able to create
a
lineup from that
description. (v7, p27))
On March 10, 2000, detective White asked the victim to come in for an identification. (Id
at 2199) According to her mother and husband,
who accompanied her to the identification, the detective
said that an arrest had been made in the case. (v7, p71; vl9, p49; v20, p160). At the station, the victim was given a photo admonition, (P. Ex. 9), and shown
a photo array of six individuals. (P. Ex. 10). Prior to viewing
the photo array, the victim asked Detective
White if any of the men in the lineup have. a tattoo on their hand, to which
he responded that those
things are irrelevant because they can easily be taken off. (v7, p34).
Mr. Hogan DOES NOT have any tattoos
on his hands!
(see photo) 
However, despite this identifying mark that the victim believed
to be professionally done, Mr. Hogan was subsequently identified in the lineup as the perpetrator. In a section
of the admonition asking her to state her reasons,
she wrote "Flashback to face who pulled gun on me and I immediately
was drawn to photograph #3.
Coincidentally, On April 17, 2000, approximately one and a half months later,
the victim filled out
a victim assistance form where she described
how the kidnapping and robbery made her ''flashback" to a previous incident involving
her daughter. (v6, pg.14-15). Meanwhile,
in explaining her identification of Mr.
Hogan's photograph out of the array, she used the same term, stating that her identification was based upon a ''flashback”. This ''flashback" identification
was made despite the fact that the victim had stated
that she "did
not get a good look" at the robber's
face, and, indeed
was unable to describe his face at all.
For reasons
never explained, Detective White allowed both the victim's husband and her mother
to be in the room (standing over her
shoulder) as the victim made the identification. (v7, p69). It is alleged that the victim dropped the robber
off at a nearby strip mall. As they were pulling into the mall, her husband
allegedly caught a glimpse of her and the robber as he was exiting
the parking lot in a separate vehicle.
However, in the husband's initial
description to police,
all he was able to say was that he saw a "grungy" white individual in the passenger
seat of the vehicle, wearing
a ski hat and sweater,
but could offer no description of the suspect's
face. Even while
talking to a 911 operator,
when asked to describe the suspect, he was unable
to do so and deferred to his wife, stating that he
didn't see his face and that you would have to ask his wife. The Husband did not even see the man well enough
to tell the 911 operator
his age.
Surprisingly
though, the husband,
who barely caught
a glimpse, through
two windshields in passing, of someone in the vehicle,
who could offer no description of the suspect
in his police report, stated he did not see his face to the 911 operator, and never claimed he could
ID a
suspect in the future, testified
that upon seeing the photo
array, his eyes were "drawn" to Mr. Hogan's
picture in the #3 position
in the photo array. (Id. At
144) Furthermore, it must be noted that only after viewing the photo array was the husband able to "recall"
additional detail, saying the person he saw was male, in
his early 20's,
Caucasian, had facial hair and had no scars. However,
this so-called "recollection/identification" wasn't
reported to police
or made known until approximately 10 months later,
and only after having attended
several court hearings
in which the defendant, Mr. Hogan was present. (v19, p69).
Meanwhile, the victim's
mother claims, while
out shopping with her daughter
and others, they walked past two men, a taller and a shorter one. She remembered them because she saw the same two men the previous day while at a different
mall shopping. She observed them for a matter
of seconds while talking wither
own mother. And though she did not see
them again for the rest of the day, she described the taller of the two as wearing
a gray knot, "snow" hat and baggy clothes, but didn't notice anything about his hair, hair color, facial hair, or facial features. (v7, p77).
Amazingly though, the mother, who was not present
at any stage of the alleged offense,
and was in fact inside the mall when it happened, who never saw or witness any individual rob or kidnap her daughter,
and who never told police she could make an identification, testified that she had a "reaction" to Mr. Hogan's photo, and that she would have picked Mr. Hogan out of the same photo array shown to her daughter as the person who
robber her. (v19, p50).
Most notable, is that a no time prior to the victim's lineup
did the victim's husband or mother ever indicate that they could identify the perpetrator [in fact, they were unable to
provide an identification prior to the lineup, as evidenced by the grossly conflicting accounts contained in all their prior statements], never once did the victim's husband
or mother ever suggest to officers that they should also participate in the lineup identification.
The corrupting effect of the identification procedure, and the inconsistencies with prior statements are glaringly obvious.
After having attended
the lineup, and not saying anything at that time to the detective, but over a year later, the husband
and mother now claim that they
are able to identify Mr. Hogan is, quite frankly
unbelievable.
It is
incongruous that the court found only one identifying witness, yet after accompanying the victim to a
lineup, three suddenly appeared
at trial. The prosecution's case was hardly
overwhelming, consisting primarily of the testimony of a single
self-interested witness as to the identity of the perpetrator and identification of the weapon. There was no independent incriminating forensic or physical
evidence linking Mr. Hogan or the weapon to the offense. Yet somehow, the state turned
a photographic lineup
into three identification witnesses.
Meanwhile, the bank teller, (the only corroborating witness) who had a clear view of both the victim and the
robber, and in fact "met eyes" with the man in the passenger seat and described him as a young Caucasian male in his late teens or early twenties with blue eyes, wearing a grey snow hat, (CD 11115/01
pg 93,98,99, 103,
105) upon seeing
the photo array,
stated that "none of the persons
in the array looked familiar." (Id. at 101; Def. Ex. D).
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