Beatty v. U.S.

• Decision Date: 14 July 1988
• Docket Number: No. 84-1527.,84-1527.
• Citation: 544 A.2d 699
• Parties: Dwight C. BEATTY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

544 A.2d 699

Dwight C. BEATTY, Appellant, v. UNITED STATES, Appellee.

No. 84-1527.

District of Columbia Court of Appeals.

Argued December 8, 1987.

Decided July 14, 1988.

Ronald A. Goodbread, Washington, D.C., for appellant.

Sharon A. Sprague, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell, Mary Ellen Abrecht and Robert K. Reed, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, ROGERS and STEADMAN, Associate Judges.

NEWMAN, Associate Judge:

Beatty contends the evidence identifying him as one of the two bandits who committed the armed robberies and related offenses at issue in this case was insufficient to sustain his convictions. We agree and reverse.¹

I

On November 11, 1981, two men committed armed robbery and related offenses at Shoe World, a ladies shoe store. Present in the store at the time and victimized by the bandits were the manager—Keith Smothers, two employees—Yvette Attaway and Michael Hawkins, and a customer—Pauline McDaniels. One of the bandits was armed with a pistol; the other carried a Safeway bag into which the robbery proceeds were placed. At trial, the government sought to prove that Beatty was the bagman.

After the robbery was completed and the bandits fled, the police were called. When they arrived, Smothers gave descriptions of both the robbers. He described the bagman as shorter than and not as heavy as the gunman (who he said was 6'-6'1", and weighed 175 pounds), dark complexioned and with a full hairstyle. He stated he did not think that the bagman had any facial hair.

On December 1, 1981, Smothers was shown an array of nine photographs. He identified Beatty's photograph saying: "This guy looks like him. His face rings a hell and he is the one without the gun." On April 15, 1982, Smothers viewed a videotape of a line-up. He twice identified Beatty as one of the robbers, saying he "looks like him" and "this looks like the guy,"

A photo array containing a picture of Beatty was shown to the others present during the robbery (Attaway, Hawkins, and McDaniels). Likewise, the line-up (or a videotape of same) containing Beatty was exhibited to these three witnesses. None or them were able to make any identification of the bagman.²

A pretrial hearing was held to suppress identification testimony; Smothers was present during some of that hearing. After the hearing, Smothers told a police detective that Beatty did not look like the person who was the bagman in the robbery, stating that Beatty was lighter complexioned than the bagman.

Smothers testified that he observed the two robbers for about 45 to 50 seconds. During this time, the gunman was facing him while the bagman was positioned cattycorner about four to five feet away. He stated that he was looking at the gunman rather than the bagman, but could see the bagman. Smothers said that at the time he made his pretrial identifications of Beatty, "I was pretty positive," and that he said Beatty "definitely" looked like the bagman. He was not asked by the government to make an in-court identification. When asked on cross-examination now that he had seen Beatty in person, was he sure that Beatty was the bagman, he answered "No, I'm not." He explained on redirect that his uncertainty was because he remembered the bagman to have been someone who was darker complexioned than Beatty, without facial hair and with a smaller nose than Beatty. He repeated that Beatty did not look like the bagman. When asked by the prosecutor whether he "wanted to recant" his pretrial identifications, he answered "No."

The other three persons present during the robbery (Attaway, Hawkins and McDaniels) each testified at trial and recounted the events. None was able to make any identification. However, when asked whether Beatty had participated in the robbery—specifically whether he was the bagman—Attaway described the bagman as about 5'6" to 5'7" (about 2 inches shorter than she is) as being "dark skinned" ("about my complexion") and medium build. A courtroom demonstration showed that Beatty was three to four inches taller than Attaway. She further testified that Beatty was noticeably lighter complexioned than she and the bagman. The government presented no other evidence tending to link Beatty to the armed robbery. Beatty presented an alibi defense which was unimpeached.

II

In determining the sufficiency of the evidence, we must view the evidence in its light most favorable to the government, leaving to the trier of fact the resolution of credibility and the right to draw justifiable factual inferences. McEachin v. United States, 432 A.2d 1212, 1218 (D.C. 1981). We can only determine that the evidence is insufficient if we conclude, as a matter of law, that no reasonable juror acting reasonably, could convict on the evidence presented. See Patterson v. United States, 479 A.2d 335 (D.C. 1984). Where the evidence of the identity of the perpetrator of the crime consists solely of the eyewitness testimony of one witness, the test is whether a reasonable person could find the identification convincing beyond a reasonable doubt, given the surrounding circumstances. Malloy v. United States, 483 A.2d 678 (D.C. 1984); Smith v. United States, 389 A.2d 1356 (D.C. 1978) (per curiam). In evaluating eyewitness identification testimony, we look to such factors as the ability of the witness to make a meaningful identification—the witness' opportunity to observe and the length of time of the observations, the lighting conditions, the length of time between the observations and the identification, the stimuli operating on the witness at the time of the observation, as well as the degree of certainty expressed by the witness in making the identification. See Crawley v. United States, 320 A.2d 309, rehearing en banc denied, 325 A.2d 608 (D.C. 1974). Where discrepancies exist between a description given of the perpetrator and the defendant's actual appearance, the conviction will still be affirmed if there is other evidence showing that the identification is reliable. Hill v. United States, 541 A.2d 1285 (D.C. 1988); United States v. Butler, 205 U.S.App.D.C. 19, 636 F.2d 727 (1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3010, 69 L.Ed.2d 392 (1981). It is within this legal framework that Beatty's claim of evidentiary insufficiency must be evaluated.

However, before we proceed to that evaluation, we pause to consider a related matter. That is, was the evidence of the extrajudicial identification of Beatty by Smothers possessed of sufficient reliability to be admissible at all, or in the alternative, to survive a motion to strike.³

At common law, testimony of prior extrajudicial identifications was generally inadmissible. See Annotation, Extrajudicial Identification of Defendant in Criminal Case, 70 A.L.R. 910, 915 (1931); see also Admissibility of Extrajudicial Identification As Substantive Evidence, 19 Md.L. Rev. 201 (1959). We have departed from this view. As we recognized in Morris v. United States, 389 A.2d 1346, 1350-51 (D.C. 1978), our previous decision in Mack v. United States, 150 A.2d 477 (D.C. 1959), rejected the traditional common-law rule and held the prior extrajudicial identification admissible to corroborate the in-court identification of the defendant as the perpetrator by the eyewitness. We likewise noted in Morris that we were bound by Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969) (where declarant testifies at trial, and is thus subject to cross-examination, evidence of prior extrajudicial identification admissible to corroborate the in-court identification made by declarant). Later, in In re L.D.O., 400 A.2d 1055 (D.C. 1979), we revisited the issue. We explained that the justification for admitting the prior identification was two-fold: (1) the declarant was available at trial for cross-examination, and (2) the reliability of the extrajudicial identification. In In re L.D.O., the victim/declarant (Russell) made an extrajudicial identification of the defendant from a photo array approximately one week after the robbery. According to Detective Miller, Russell selected L.D.O.'s photo, saying he was fairly certain of his identification since he was familiar with L.D.O. from the neighborhood. Russell testified at trial, thus satisfying the first prong of the test. He was not asked to make an in-court identification; he testified that his pretrial identification had been made while he was in the hospital, his vision was blurred and that he was not in the least bit positive when he made this identification. He stated that he told Detective Miller that he was less than forty percent certain of the identification. Detective Miller contradicted this testimony. We held that Russell's trial testimony sufficiently dissipated the reliability predicate to render the pretrial identification evidence inadmissible. We cited with approval Commonwealth v. Swenson, 368 Mass. 268, 331 N.E.2d 893 (1975) (prior extrajudicial identification not admissible where witness testifies that he did not give a "positive identification"), and Gibbs v. State, 7 Md.App. 35, 253 A.2d 446 (1969) (where an eyewitness says he was mistaken in his extrajudicial identification, that identification is completely lacking in evidentiary value). In our subsequent cases of Rice v. United States, 437 A.2d 582 (D.C. 1981) (per curiam), and Wilkerson v. United States, 427 A.2d 923 (D.C.) cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981), we held that the prior extrajudicial testimony was admissible even though the declarant at trial was not asked to make an in-court identification. We rejected appellants' reliance upon In re L. D. O., finding that case to be simply "inapposite."⁴

If after the uncertainties created by the trial testimony of Smothers, Beatty had objected to the evidentiary...