The defendants were members of the Hankton Enterprise, a gang led by Telly Hankton that sold drugs in the Central City neighborhood of New Orleans. In January 2004, a turf war erupted between the Hankton Enterprise and a rival gang led by Brian Broussard. The feud sparked several shootings and led to at least seven murders. In particular, four violent interactions form the basis of many of the defendants’ convictions: (1) the murder of Darnell Stewart, (2) the murder of Jesse Reed, (3) the attempted murder of a daquiri shop owner, and (4) the murder of the daquiri shop owner’s brother.
Stewart and Reed were members of Broussard’s gang; they killed Hankton Enterprise member George Hankton on December 17, 2007. A few months after George’s murder, Andre Hankton—with Telly Hankton riding in the passenger seat—tailed a vehicle driven by Stewart down the “neutral ground” of Claiborne Avenue. Shortly, Stewart exited his still-moving vehicle, which crashed into a dumpster, and took off on foot across the street toward a daquiri shop. Andre Hankton stopped next to Stewart’s vehicle, and Telly Hankton jumped out and gave chase. Before Telly Hankton could reach Stewart, Andre Hankton hit the gas and rammed his vehicle into Stewart, causing him to fly “end over end” into the air and collapse on the ground. As Stewart lay there, Telly Hankton stood over him and shot him approximately ten times before running away. With Stewart dead, Andre Hankton sped off in a different direction. After the murder, the owner of the daquiri shop, who witnessed the crime, provided video surveillance footage from the store’s security cameras to the police.
Biding time, Telly Hankton hired Walter Porter about a year later to murder Reed in further payback for George’s death. Because Porter did not know what Reed looked like, he met Telly Hankton and Kevin Jackson on June 20, 2009, to hunt for Reed together. When they found Reed outside a restaurant, all three men exited Telly’s vehicle and began shooting. Jackson shot into a crowd of people, Telly shot Reed’s legs, and Porter unloaded both of his clips from both of his guns in Reed’s face and body. Reed was shot 50 times and died from his injuries.
A few months later, Telly Hankton, who was in prison for his involvement in Reed’s murder, ordered the killing of the daquiri shop owner who provided the video footage of Stewart’s murder to the police. In October 2010, a Hankton Enterprise member shot the daquiri shop owner 17 times but did not kill him. A year later, Porter shot and killed the daquiri shop owner’s brother, ostensibly a revenge killing as well.
On June 19, 2014, a federal grand jury in the Eastern District of Louisiana indicted Telly Hankton, Andre Hankton, Walter Porter, Kevin Jackson, and nine others for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Federal Controlled Substances Act, the Federal Gun Control Act, and the Violent Crimes in Aid of Racketeering Act (VICAR) in a 24- count indictment. Two years later, the district court held a three-week trial that included dozens of exhibits and testimony from over 70 witnesses. The jury convicted the defendants on some charges and acquitted them on others.
On appeal, one issue involved whether a photo lineup was properly admitted. The District Court said that it was. The 5th affirmed on that issue.
During trial, the prosecution introduced two out-of-court witness identifications, derived from two six-person photo arrays, of Telly Hankton as the person who killed Stewart. Telly Hankton moved to suppress the Stewart murder identifications on the basis that the photo arrays were “unduly suggestive” because (1) the two witnesses who identified him were shown the same six photos, albeit in different order; (2) Telly Hankton appeared significantly smaller in his photo compared to the people in the other photos; (3) Telly Hankton’s photo was brighter than the other photos and, unlike the others, lacked a shadow in the background; (4) Telly Hankton had a lighter mustache and a fuller beard than the other individuals; and (5) Telly Hankton was wearing a sweatshirt while the other individuals were wearing t-shirts.
Telly Hankton emphasized that the lack of a full beard on the other individuals was significant because both witnesses had previously told the police that the man who killed Stewart had a beard, “the beard caught their attention, and the beard was “full” or “very thick.” The district court denied Telly’s motion without a hearing, concluding that neither of the photo arrays was impermissibly suggestive. The court determined that the photos contain differences that one would reasonably expect to see in six different photos of six different people, concluding that there were no incriminating features that caused Telly Hankton’s photo to stand out from the rest.
Preliminarily, Telly Hankton contends that the district court erred by ruling on his motion to suppress without first conducting an evidentiary hearing. Evidentiary hearings are not granted as a matter of course, but are held only when the defendant alleges sufficient facts which, if proven, would justify relief. The district court is left with a certain amount of discretion in deciding whether a hearing is warranted.
Turning to the merits, Courts apply a two- prong test to determine whether a photo array should be excluded. See Davis. First, this court asks whether the photographic array is impermissibly suggestive; if it was not, the inquiry ends. If the photographic array was impermissibly suggestive, we ask whether considering the totality of the circumstances, the photographic display posed a very substantial likelihood of irreparable misidentification.
Photo arrays may be suggestive if the suspect is the only person closely resembling the description, or if the subjects of the photographs are grossly dissimilar in appearance to the suspect. See Saenz. We review the district court’s conclusion that the photo arrays were not impermissibly suggestive for clear error.
On appeal, Telly Hankton contends that the photo array was impermissibly suggestive because Telly was the only individual in the array with a “full,” “very thick” beard, a physical characteristic highlighted by the identifying witnesses. The district court disagreed, and its conclusion is not clearly erroneous. All six men in the photo arrays have facial hair, and Telly’s beard is not significantly different from any of the other individuals’ facial hair. True, both of the identifying witnesses specifically referenced a beard. But because the subjects of the photographs were not grossly dissimilar in appearance to the suspect, we cannot say with a definite and firm conviction that a mistake has been committed.
Accordingly, we find no reversible error as to this issue.