Cunningham v. United States, s. 12541, 79-347,

• Decision Date: 04 December 1979
• Docket Number: Nos. 12541, 79-347,,s. 12541, 79-347,
• Citation: 408 A.2d 1240
• Parties: Michael A. CUNNINGHAM, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

408 A.2d 1240

Michael A. CUNNINGHAM, Appellant, v. UNITED STATES, Appellee.

Nos. 12541, 79-347,

District of Columbia Court of Appeals.

Argued October 30, 1979.

Decided December 4, 1979.

Nathan 1. Silver, Washington, D. C., appointed by the court, was on the brief, for appellant.

John H. Sturc, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., and John A. Terry and Paul L. Knight, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before GALLAGHER, MACK and PRYOR, Associate Judges.

PRYOR, Associate Judge:

Appellant and his codefendant, Charles Estes, were convicted by a jury of armed robbery, D.C.Code 1973, §§ 22-2901, -3202; subsequently he was sentenced to a term of ten to thirty years imprisonment. On appeal he contends the trial court erred (1) by denying his motion for acquittal on the grounds of insufficient evidence; (2) by failing to give the jury a cautionary instruction that evidence admitted against one defendant is to be considered only against that defendant;¹ (3) by not severing the trial despite defense counsel's failure to make a motion for severance.

Pursuant to D.C.Code 1973, § 23-110, appellant has also made collateral attack upon his conviction on the grounds of ineffective assistance of counsel. In both of these instances, we affirm.

I.

On an early afternoon in January 1976, Charlene Fogg, the assistant manager of Murry's Steaks, noticed two men walking across the parking lot towards the store. They entered and began to shop for meat. At one point, Donald Hayes, the store clerk assisted them in pricing some beef. After the other customers had left, the two men placed a box on the counter. The shorter of the two stood behind Mr. Hayes with revolver and the taller man told M. Fogg., "You don't want him to get hurt do you? Just be cool." While the shorter man directed Mr. Hayes to the rear of the store, Ms. Fogg placed the cash drawer oil the counter.

A few moments later, Edward Ekers, the manager of the store, entered and noticed "something funny" because the cash drawer, which belonged in the cash register, was on the counter. While he was watching the man at the cash register, the shorter man positioned himself behind Mr. Ekers and, partially exposing the gun, ordered the store manager to move to the rear of the store with Hayes. Ekers suggested that he and Hayes be placed in the large walk-in freezer and the shorter robber agreed Once inside the freezer, Ekers and Hayes pushed the silent alarm and waited The robbers took the money out of the cash drawer. After ripping the phone from the wall, they warned Ms. Fogg not, to pursue or call for help and fled.

A few days later, Detective Finch went to Murry's Steaks to determine whether any of the employees could identify the robbers from an array of photographs. arranged nine or ten black and white photographs in two rows on the counter. Shortly after Ms. Fogg began viewing the photographs she identified Mr. Charles Estes, appellant's codefendant, as one of the robbers. Before she had finished viewing the photographs, she was called away to serve some customers in the store. Detective Finch attempted to show the photographs to Donald Hayes. Initially, Hayes flatly refused to cooperate; later he shuffled through the pictures perfunctorily and stated that he did not recognize anyone. Heated words were exchanged between them, but Hayes adamantly refused to examine the pictures carefully. For whatever reason, Finch left the store without showing Ms. Fogg the remainder of the photographs that she did not see in the first instance

On January 1, 1977, Ms. Fogg attended a lineup in which both the appellant and the codefendant were presented. When asked whether shit recognized anyone, she identified Mr. Estes. The officer thanked her and she left the room. Moments later Officer Rose, who was standing in for Detective Finch at the lineup, dashed out of the lineup room into the hall and called out to Ms. Fogg, "Wait a minute; As fie approached her, she spontaneously blurted out that she also recognized one of the other men in the lineup as being the short robber. She identified him by his number and position in the lineup. The second individual identified was appellant. At trial, Ms. Fogg explained that she did not identify the appellant in the lineup room because she was under the impression that the lineup officer only wanted her to make one identification.

While they were still standing in the hallway, Offices. Rose pulled but an array of pictures, which included a picture of the appellant, and showed them to Ms. Fogg. She identified the, appellant again. Later when shown a picture of the lineup, she identified both the appellant and his codefendant. Finally, at trial, she positively identified Estes and the appellant as being the two men who robbed Murry's Steaks on January 10, 1976.

II.

Appellant contends that there was insufficient evidence to convict him. We can reverse on this ground only if it can be snown "there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Raymond v. United States, D.C.App., 396 A.2d 975, 978 (1979); Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967) To be sure, the main thrust of the government's case, in addition to some other circumstantial evidence, was the identification testimony of Ma Fogg. She was an eyewitness to the incident and identified appellant as one of the robbers on three occasions: (1) the photographic showing in the hall after the lineup; (2) the showing of the lineup photograph; and (3) the in-court identification. We are, of course, mindful of the dangers in situations where the prosecution's main evidence is an identification by one witness. See Smith v. United States, D.C.App., 343 A.2d 40, 42 (1975). In this instance, unlike those cases, the witness had several opportunities to make an identification. At each opportunity the response was clear and unequivocal. There was a reasonable basis for the jury's acceptance of her testimony. She was present during the entire robbery which lasted approximately twenty minutes. The store was well-lit. Her view was unobstructed and neither man was wearing a mask. In the jury's presence she was thoroughly cross-examined by each of the defense attorneys. The jury made its finding and we conclude that there is no substantial likelihood of irreparable misidentification, and thus will not disturb it.

III.

Appellant contends the trial court committed reversible error by failing, sua sponte, to sever the trial of appellant and his codefendant. We do not agree. When two or more defendants are charged with jointly committing a criminal offense, there is a strong presumption that they will be tried together. Christian v. United States, D.C.App., 394 A.2d 1, 20 (1978). The trial court has broad discretion to rule upon a motion to sever. Clark v. United States, D.C.App., 367 A.2d 158, 160 (1967). In order to reverse the trial court we must find that the trial...