Prosecutor Jack Schmidt couldn't mention a key piece of evidence during opening statements in the trial of Duwaine Price, 39, who stands accused of robbing two coffee shops five miles apart last October.
Schmidt opened his "tale of two robberies" Monday without telling the jury that the state connects the two robberies and associated assaults to Price because a victim, barista Stephanie Dennis, identified Price in a photo lineup.
Juneau Superior Court Judge Phillip Pallenberg ordered the claim kept from the jury of three men and 10 women until a hearing on the admissibility of it as evidence. The jury heard opening statements and were dismissed to allow the attorneys to hash out the issue.
Before siding with the state and allowing future admission of Dennis' testimony, Pallenberg called her earlier statements "inconsistent" and "difficult to comprehend."
Price is charged with two counts of robbery, one of theft and two of assault. As poised by the state, the overall criminal intent for both crimes relies, in part, on Dennis' claims.
The state alleges that Price walked up to the window of the Heritage Coffee stand near Western Auto and Marine and demanded money from Dennis. Schmidt said Price said, "Give me some money or I'll shoot you." Dennis fled behind a door with her tip jar and called police as the suspect walked away, Schmidt said.
About 17 minutes later another robbery call surfaced from Capitol Brew downtown, where a robbery was stopped mid-stride by the owner and employees who beat the suspect with a Maglite. Price was arrested and charged in the crime. He had a blood alcohol content of .30 at the time of his arrest.
Only Dennis' identification connects Price to the Heritage robbery.
Defense Attorney Eric Headland filed a motion last week to suppress the use of Dennis' identification of Price as testimony. She picked Price out of a lineup in the district attorney's office more than three months after the crime occurred and shortly before testifying before the grand jury, he said.
Dennis did not identify Price when showed a photo lineup containing a mug shot of Price on Oct. 1, 2007, the day the robbery occurred. The original lineup was lost or shredded according to police, who thought it of no use.
Pallenberg admonished the police department for losing useful evidence.
Headland said Dennis was cajoled into identifying Price through leading questions posed by Juneau District Attorney Doug Gardner in front of a secret grand jury on Jan. 11 in an effort to connect the two crimes. He threatened to call Gardner to the witness stand.
The identification of Price that resulted was not positive or creditable, according to Headland. He called it "tainted" evidence that should be suppressed.
Two Juneau police officers questioned during a hearing Monday said they couldn't recall exactly what Dennis said when identifying Price.
Headland said Gardner spoke for Dennis before the grand jury that indicted Price; she picked photo No. 3 and said "yeah," when told the photo "looks most like him."
Prosecutors and police have sold Dennis' testimony as a "positive ID," Headland said.
"But that's not what happened," he said.
Headland said Dennis was actually under the impression that she had not identified the robber.
Schmidt explained that nothing more had gone on beyond Dennis' ability to pick Price out of a lineup months after failing to do so once. That conclusion was not suggested to her, he said.
The trial picks up today with the first witnesses.