Attorney wants to suppress ID in rape trial

PORTALES — An Albuquerque public defender wants to suppress an alleged rape victim’s identification of his client due to lack of reliable methods for identifying a suspect.

However, District Attorney Andrea Reeb claims there is plenty of material evidence linking Roy Brown to the June 2016 crime.

Brown, 29, of Portales, is accused of breaking into a woman’s home two miles south of Portales and attacking her as she slept on the couch.

He is charged with two counts of criminal sexual penetration, a second-degree felony, along with the felony charges of aggravated burglary and resisting, evading or obstructing an officer, and a misdemeanor charge of aggravated battery.

The victim testified in a motion hearing Wednesday that she tried to fight Brown off as he beat her with a glass bottle and raped her. She was able to stop the attack, she said, by telling Brown she needed to use the restroom. She said Brown took her to the restroom, and was confused with the situation for long enough that she was able to run away.

The victim said she looked back to ensure she was getting away from Brown, and she saw he had a balding or shaven head and was wearing a light-colored “wife beater” tank top.

Two deputies testified they found Brown two houses away, appearing as the victim had described and appearing to be intoxicated, smelling of alcohol with slurred speech and unable to keep his balance. Also, they said, he had fresh scratches on his arms and legs.

Public defender Craig Acorn argued to suppress the victim’s initial identification of Brown. The victim was hysterical and not speaking English, Acorn argued, and, “who knows what got lost in translation” when a neighbor relayed an account in English to deputies.

Acorn told District Judge Donna Mowrer that Brown willingly approached police the night of the incident, and noted the victim testified that she could not see her attacker until she was running away from him and a vehicle’s headlights illuminated him briefly in passing.

He also stated police dispatch called out the attacker as a white male, which Brown is not.

The victim claimed she never identified her attacker by race, and her account was confirmed by the deputies.

Acorn also argued Brown authorities led the victim down a path where she could only identify Brown as her attacker, based on showing only one cell phone photo of Brown. A deputy countered that upon presentation of the photo, the victim began sobbing and had a panic attack.

Acorn also made the argument that rather than having the victim identify Brown in a line up, they identified him by a “show up,” by showing just him to the victim, and deputies had the victim identify him from a cell phone picture one of the deputies had taken rather than in person.

One of the deputies testified that the victim began sobbing again and having a panic attack upon seeing the photo of Brown the night of the incident.

“They (deputies) found a male in a light colored ‘wife beater’ with little to no hair, in his underwear with scratches all over his body just two doors away,” Reeb countered. “That’s a lot of things that correlate with this crime.”

She added the misidentification of race was related to the incident occurring under nighttime conditions.

Mowrer told the two attorneys that she would send them both her answer to the motion by March 8.

Reeb said if the judge ruled for the defense, she would have to prove the attacker’s identity by other means. She is still awaiting DNA results from the state lab.