Nathaniel Johnson - Mistaken Witness Identification

Johnson, Nathaniel; robbery; NRE: mistaken witness identification, prosecutor misconduct, withheld exculpatory evidence

Suggestibility issues

[930:362]; 4th Dept. 10/7/11; affirmed

"[W]e reject [Johnson's] contention that the verdict was against the weight of the evidence. The manager of the covenience store that was robbed...identified [Johnson] at trial as the person who committed the robbery. The manager also testified that he was able to observe [Johnson's] face when [Johnson] [ supposedly ] approached the manager before [Johnson] entered the store wearing a 'translucent' scarf over his mouth and nose.

"We further conclude that [County] Court properly refused to suppress the testimony of the manager with respect to the photo array in which he identified [Johnson]...There is no evidence in the record that the photo array drew the manager's attention to the photograph of [Johnson] or that the identification procedures employed by the police were unduly suggestive..."*

[* That's extremely misleading: As we shall see below, the events just prior to the photo lineup rendered the latter immensely suggestive.]

from NRE synopsis (By Maurice Possley):

"At 4:30 a.m. on April 23, 2009, a man with a pistol and a translucent scarf over his face held up a Wilson Farms store in Buffalo...and escaped with $3,000 in cash.

"A police officer who was pulling into the store parking lot saw a car leaving and took down the license plate number. When police ran a computer check on the license plate number, it came up registered to a car that did not match the car seen leaving the lot. Police believed they had the wrong license plate number and did not investigate further.

"The investigation soon focused on 40-year-old Nathaniel Johnson, who had a previous conviction for robbery. Police discovered that Johnson had been seen on a security video at another Wilson Farms store where his girlfriend previously worked. His girlfriend was concerned about locking up the store alone in the early morning hours, so Johnson regularly came by to be with her. The security video showed him in areas of the store where customers are prohibited, and as a result, Johnson's girlfriend had been fired.

"The manager of the store that had been robbed viewed this security video shortly before police came to him with a photographic lineup that included Johnson's photograph. The manager identified Johnson as the man who robbed him. Johnson was arrested May 12, 2009 and charged with armed robbery.

"Johnson went to trial in Erie County...in January 2010. The manager identified Johnson and testified that he saw Johnson's face just before he covered it with the scarf.

"Johnson's girlfriend also testified for the prosecution, saying that Johnson had once told her that Wilson Farms stores would be easy to rob. The prosecution failed to disclose to the defense that the girlfriend had a drug charge pending against her that was dismissed."

[This 'girlfriend' of Johnson's is a real piece of work. Because she had felt unsafe locking up the store alone in the wee hours of the morning, she'd asked Johnson to accompany her, which -- with grace as well as chivalry -- he did. That's the only reason why Johnson was on that earlier security video of another store in that chain, which the manager of the robbed store was shown just before the police came to him with a photographic lineup that included Johnson's picture, thereby 'priming' the manager to identify Johnson in the array. And then, probably due to a combination of her resentment at being fired due to Johnson being (at her request) where he shouldn't have been and wanting to wriggle out of a drug conviction, she sells out her boyfriend with a story about him supposedly saying these stores were easy to rob -- testimony which shouldn't even have been allowed in, given that it was far more prejudicial than probative.]

"During Johnson's trial, a police officer testified about the license plate, saying that the officer apparently got the wrong plate number because the plate turned out to be on a car that did not match the description of the getaway vehicle.

" A friend of Johnson's who was attending the trial, Kathleen Kuwik, had just become a licensed private investigator, and she went to the address linked to the license plate and saw two cars in the driveway. One of the cars had no license plates and matched the description of the robber's car. She believed the robber had taken the plates off the other car and put them on the getaway car for the robbery and then put them back on the other car after the robbery to avoid detection. When she returned to the courthouse to try to alert Johnson's defense attorney, she was too late -- closing arguments were completed.

"Johnson was convicted by a jury on January 14, 2010 and was sentenced to five years in prison.

"His conviction was upheld on appeal, but Kuwik and Johnson's appellate lawyers continued to investigate. They discovered that the car with no license plates was being used by a woman whose boyfriend, Jabari Spencer, had been arrested just a few months after Johnson was arrested. Spencer, who also had access to the car, was charged with two other armed robberies, on June 10 and July 3, 2009.

"He had been convicted of one of the robberies and sentenced to 10 years in prison.

"In 2012, Johnson filed a motion for a new trial and the Erie County [DA's] Office assigned the case to an investigator for review. In April 2013, after concluding that Johnson was innocent, the prosecution joined with the defense motion for a new trial. Johnson's conviction was vacated, the case was dismissed and he was released from prison."

[All emphases added unless otherwise noted.]