Thomas McGowan

• Eyewitness

• Cross Racial Identification
• Victim

• Lineup
• Photo array

Yes ● Suggestive remarks – told victim “You have to be sure” post-identification ● Suggestive line-up ● Victim not told attacker might not be in line-up

Describing the photos in the array, an exhibit at trial, the victim testified that three of the 7 photos were black-and-white photocopies or poor quality. Of the four color photos, all were mug shots with the defendants holding police department booking placards. One placard said “Garland Police Department” and three said “Police Department, Richardson Texas,”which was the city where the crime took place. McGowan was one of the just three photos of men who appeared to have been arrested in Richardson. When showing victim photo array, the Detective instructed her, “I just want you to look through this and see, you know, if the guy who did this to you is in here.” The victim testified: “They were handed to me. And I took the first one and put it behind the other one. Then I took this one, I looked at it and laid it aside. Then I took all the rest of the photographs and I shuffled them like this and looked at them quite a long time. And then when I got back to the beginning, I took this one and I looked at it. When I laid this one aside the first time, I said, ‘I think this is him.’ Detective [] said I have to be sure, and when I picked it up the second time, I said, ‘I know this is him.’" “. . . when I laid the second picture aside, I said, ‘This is – – I think this is him.” And he said, ‘You have to be sure.’ So I looked at therest of the pictures and put them all back together, and I handed him the picture. And I said, ‘I know this is him.’” “He said, ‘You have to be positive.’ And I said, ‘I’m very positive.’”

Yes ● Initial nonidentification ● Initially uncertain

Victim testified, “When I first saw them, I knew he wasn’t in there so I marked none. And then I told Detective [] that I thought one of them looked like him. And I told him the reason I was saying that is because I couldn’t – – I couldn’t accurately describe him the way he looked.So, I said number five or six looks like him. He said, “Well, you have to put what you think.” So, I marked six and I said this is not him but it’s similar to what he looks like.” “Because it would be easier for me to describe a black female, for some reason, than it would a black male. I just said he is black, he is this tall, and weights this much. I couldn’t – – I didn’t known how to accurately describe the way his face looked.”

• Jury Instructions
• Prosecutorial Misconduct
• State Law Evidence Claim

McGowan v. State, 729 S.W.2d 316 (Tex.App.‐Dallas,1987)