Superior Court Associate Judge Joseph N. Camacho denied yesterday murder suspect Joseph A. Crisostomo’s request to suppress the testimony of a former girlfriend who identified him as the male voice in the 911 call that bartender Emerita Romero made before she was killed.
“The totality of the circumstances surrounding the identification procedure indicates that the identification was reliable, despite the suggestive nature of the procedure,” Camacho said.
The judge ruled that there was no due process violation.
Camacho said the former girlfriend was very certain at the time of the identification and not only did she communicate verbally that she was certain, several witnesses also testified that she had a physical reaction immediately upon hearing the 911 recording.
“This degree of certainty supports a finding of reliability,” Camacho said.
Crisostomo’s court-appointed lawyer, attorney Janet H. King, had wanted all testimony regarding her client’s pretrial identification suppressed. King specifically asked the court to suppress the voice identification made by the former girlfriend where she identified Crisostomo’s voice on an audio recording made on the night of the crime.
King argued that the Federal Bureau of Investigation’s identification procedure was unduly suggestive, and violates Crisostomo’s right to due process of law.
Camacho heard the motion on Tuesday. Chief prosecutor Shelli Neal and assistant attorney general Brian Flaherty appeared for the government. King represented Crisostomo.
In his order, Camacho agreed that the procedure used to identify Crisostomo’s voice was unduly suggestive. In this case, Camacho said the former girlfriend was asked whether she recognized the voice on the recording.
The judge said that instead of just making the former girlfriend listen to the single sample against a clear backdrop, her attention was directed to Crisostomo when she was asked—before she heard the recording—about phrases that the defendant commonly used.
Camacho said it was unnecessary for the law enforcement officer to engage in this line of questioning before the former girlfriend identified the voice.
“Thus the procedure was unduly suggestive,” he said.
As to the totality of circumstances, Camacho said in this case, the former girlfriend was not present at the time of the crime. Instead, she made her identification by listening to a recording of a 911 call that Romero made.
Camacho said he heard testimony that the recording was about four minutes long and contained four voices: the voices of Romero and an unknown male assailant on one end of the line, and the voices of the female 911 dispatcher and a male police officer on the other.
Camacho said the unidentified male voice was quieter than the voice of the victim, but still audible.
Thus, the judge said, the former girlfriend had the opportunity to hear the voice of the assailant, and this factor weighs in favor of a finding of reliability.
Camacho said that in this case, where the identifying witness was asked to listen to a recording and tell the authorities whether she recognized a voice, the relevant inquiry is how familiar the witness is with the person she identified as the speaker.
Camacho said the identifying witness was in an intimate relationship with Crisostomo for about 17 years and she is abundantly familiar with his voice.
Further, the judge noted that the identifying witness explained that she was familiar with Crisostomo’s voice in circumstances similar to the recorded event.
“Therefore, this factor indicates that the identification was reliable,” he said.
The identifying witness testified that her relationship with Crisostomo ended around December 2006, and that she has had no conversations with him between December 2006 and the identification procedure that was conducted on Feb. 17, 2012.
While it had been several years since the former girlfriend had heard Crisostomo’s voice, Camacho said she is very familiar with it based on their 17-year intimate relationship.
Camacho said the former girlfriend gave her full attention to the recording, and was very certain in her identification.
Even though the former girlfriend’s attention may have been drawn to Crisostomo prior to the identification procedure, there is enough evidence that, given the totality of the circumstances, her identification was still reliable, he said.
“The court leaves this matter to the jury to determine the appropriate weight to give the identification,” Camacho added.
Crisostomo’s trial will start on Oct. 15, 2013.
FBI agents found the body of Romero at the former La Fiesta Mall in San Roque on Feb. 7, 2012, two days after she was last seen boarding a car near her house in Garapan.