Brown v. United States

• Decision Date: 31 May 1978
• Docket Number: No. 11939.,11939.
• Citation: 388 A.2d 451
• Parties: Dexter M. BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

388 A.2d 451

Dexter M. BROWN, Appellant, v. UNITED STATES, Appellee.

No. 11939.

District of Columbia Court of Appeals.

Argued March 8, 1978.

Decided May 31, 1978.

Rehearing Denied July 19, 1978.

COPYRIGHT MATERIAL OMITTED

John P. Bankson, Jr., Washington, D. C., appointed by this court, with whom Jeffrey M. Petrash, Detroit, Mich., was on the brief, for appellant.

Frederick A. Douglas, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and Stephen R. Spivack, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, YEAGLEY and HARRIS, Associate Judges.

KERN, Associate Judge:

A jury found appellant guilty of first-degree burglary while armed, D.C. Code 1973, §§ 22-1801(a), — 3202; armed robbery, D.C.Code 1973, §§ 22-2901, — 3202; assault with intent to commit robbery while armed, D.C.Code 1973, § 22-501; and two counts of assault with a dangerous weapon, D.C.Code 1973, § 22-502.¹ Subsequently, he was sentenced to concurrent terms of incarceration of 15 to 45 years for the convictions of first-degree burglary while armed, armed robbery, and assault with intent to commit robbery while armed, and three to nine years on each count of assault with a dangerous weapon.

On appeal he contends (1) that the trial court committed reversible error by violating its own rule on witnesses in permitting the government to reopen its direct examination of an eyewitness to the crime following consultations between the witness, the prosecutor, and a police officer who became a subsequent witness for the government; (2) that the trial court erred by permitting counsel to conduct an initial voir dire of an 11-year-old eyewitness outside the jury's presence and then to pursue a similar voir dire in the presence of the jury; and (3) that the trial court abused its discretion by refusing to give a missing witness instruction with respect to an eyewitness to the offense who was not called to testify by the government. We affirm the convictions.

Sylvester Farmer testified at trial that at approximately 2:30 a. m. on January 27, 1976, he was awakened by someone knocking on his apartment door. Thinking that it was the brother of the woman with whom he lived, Farmer opened the door. Instead, an intruder forced his way into the unlighted apartment, placed a sharp object against Farmer's shoulder, and demanded "Farmer, give me the money under the bed." Farmer, who was 71 years old, attempted vainly to repel the assailant, but finally told the man that there was some money in his pants which were over a chair. The intruder then took $40 and unsuccessfully demanded additional money from Farmer's companion, Ellen Lancaster. He also pulled the mattress off the bed, at which time several envelopes in which Farmer had hidden money fell to the floor. Before the assailant could pick up these envelopes, however, there was a knock at the door of the apartment, and the intruder fled.

Frank Adams, the person who had knocked at the door, testified that he had been awakened that night by his daughter, Jewell, who said that she had heard noises like somebody falling in the apartment beneath them. Adams and his daughter, accompanied by Clarence West, a 70-year-old man who lived with them, went downstairs to the Farmer apartment, and Adams knocked on the door. Shortly thereafter, a man whom Adams did not recognize came out of the apartment with a pistol in his hand. Adams testified that the hallway was well-lighted and that he observed the intruder for two or three minutes while the man backed out of the apartment building.

Adams' daughter, Jewell, who was 11 years old, testified that she also watched as the man left the Farmer apartment. She saw the pistol and also observed that the man had a knife in his hand.

While the assailant was leaving the building, Farmer remained in his apartment and called the police. When the officers arrived, they questioned Farmer and his companion, Ellen Lancaster, but because the apartment had been dark, neither of the victims could describe the intruder. One of the officers, however, heard Frank Adams describe the person whom he had seen leaving the apartment and realized that the characterization matched a man whom he had seen entering a building a half-block away as he was responding to the robbery complaint. The officer attempted to locate this building, but he was unable to determine whether the person had gone into 317 or 319 18th Street, Northeast.

About a month later, a police detective reinterviewed Frank Adams.² No one had previously talked with Adams' daughter, Jewell, but at this time she revealed that on the night of the offense she had recognized the gunman as a friend of her brother who was named "Dexter" and who lived a half-block away. She then pointed out to the officer the house of the person whom she had recognized, 319 18th Street, Northeast.

Subsequently, a police detective obtained a picture which he believed to be that of the suspect and included it in a photographic array which he showed separately to Frank and Jewell Adams. Both of the witnesses chose the same photograph as someone whom they had seen in their neighborhood, but each stated that the person whom they identified had no connection with the Farmer incident. The officer later placed a picture of Dexter Brown in a photographic array which he presented separately to the witnesses, and both of them positively identified appellant as the person whom they had seen emerging from the Farmer apartment. Thereafter, Frank and Jewell Adams separately viewed a police department lineup at which they each identified appellant as the gunman, and both of them identified him at trial.

I

Appellant's initial contention on appeal is that the trial court committed reversible error in permitting the government, after the court apparently issued an order sequestering the witnesses, to reopen its direct examination of an eyewitness, Frank Adams, following consultations among (1) Adams, (2) the prosecutor, and (3) a police detective who became a subsequent government witness and testified concerning the steps taken by the police in investigating the crime. At this conference their discussion concerned the number of times the police had shown to the witnesses a photographic array in which the picture of appellant had actually appeared. The issue arose as follows.

Jewell Adams preceded her father on the witness stand. During her testimony she stated that she had been shown photographs on two different occasions. The first time she was shown a group of photographs, appellant's picture was not included and so she did not select anyone as the suspect; when she was shown a second set of photographs, in which appellant's picture was included, she identified Dexter Brown.

On direct examination, Frank Adams agreed during his first appearance before the jury that he had seen two photographic arrays; he asserted, however, that on both occasions he identified the same man. He further testified that he had made a lineup identification, and he pointed out appellant in court.

Following cross-examination by defense counsel, during which the photo identification issue was not raised, trial adjourned for the weekend. At this time, therefore, there was a direct conflict between the two eyewitnesses, i. e., the Adamses, concerning the number of times they had identified the suspect in a photographic array prior to trial.

As the prosecutor told the court when trial reconvened on Monday morning, from his previous familiarity with the case, he had been "convinced that in some way [Adams] was mistaken." Consequently, after court recessed on Friday, the prosecutor had spoken with Detective Miller, the person who had displayed the photographs. During these conversations, the prosecutor learned for the first time that during the initial photographic spread in which appellant's picture did not appear, both witnesses had identified a person other than appellant as someone whom they recognized from the neighborhood but who was not the suspect. Admitting that he "did not know how to resolve the situation," the government attorney then spoke to witness Adams who "again stuck to the story that he made two photographic identifications of Dexter Brown." The critical event occurred subsequently when the prosecutor "attempted to refresh [Adams'] recollection by having Detective Miller present at the time and discuss the exact ways those identifications were made." [Emphasis added.]

Even after this conversation, the prosecutor believed that the witness "still exhibited a lot of confusion about these two prior identifications," and so he spoke to Adams again on Monday morning. At this time the government attorney finally realized that when the witness stated that he had identified the same man twice, he was referring in the first instance to an identification from a photographic array and in the second situation to the showing at a witness conference of a photograph of a lineup.

The prosecutor pointed out that since defense counsel had not probed this issue on cross-examination, the confusion could not be corrected through redirect examination. He therefore asked the court to permit the government to reopen direct examination of the witness Frank Adams. Defense counsel noted that he had no objection to the fact that the prosecuting attorney had discussed the case with the witness but, in light of the court's admonition to the witnesses that they were not to discuss the case among themselves until the trial was over, he objected to the conversation in the prosecutor's presence between Adams and Detective Miller, a potential government witness. Despite the objection, the court granted the government's request.

When witness Adams was recalled to the stand, he testified that he met with the prosecutor and Detective Miller on Friday afternoon and that he also saw the government attorney on Monday...