Cureton v. United States
| Decision Date | 29 March 1978 |
| Docket Number | No. 12057.,12057. |
| Citation | 386 A.2d 278 |
| Parties | Cornelius A. CURETON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Michael J. McCarthy, Washington, D. C., appointed by this court, for appellant.
Earl J. Silbert, U. S. Atty., Washington, D. C., with whom John A. Terry, Michael W. Farrell, Edward C. McGuire and Reggie B. Walton, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before KELLY, KERN and YEAGLEY, Associate Judges.
Following a jury trial, appellant was found guilty of assault with intent to commit robbery while armed, D.C.Code 1973, §§ 22-501, -3202. On appeal, appellant makes four assignments of error; viz., (1) the trial court's refusal to suppress testimony concerning the complainant's spontaneous and unsolicited identification of appellant upon sighting him in a police station house hallway; (2) the trial court's refusal to suppress his in-court identification by the complainant; (3) the trial court's denial of his motion for a judgment of acquittal made at the close of the prosecution's case and renewed at the close of all of the evidence; and (4) the purportedly inconsistent jury verdicts which acquitted appellant of carrying a pistol without a license while convicting him of one count of assault with intent to commit robbery while armed.1 We affirm.
Because appellant's argument primarily focuses on an allegedly suggestive pretrial confrontation, and because of the unusual factual context from which this confrontation developed, we feel obliged to recount, at some length, the proceedings leading up to the trial and the in-court identification.2
During the early evening of January 15, 1975, Frank Robinson and his wife, Florence, were walking home from a birthday party for their grandchild. The couple was taking a shortcut through a schoolyard when they were approached by two young men armed with pistols. One of the men demanded the Robinsons' money. Frank Robinson, thinking the incident was "some kind of game," told his wife to keep walking. One of the men then grabbed Florence Robinson's purse. A brief struggle for the purse followed. The assailant then placed his pistol near Florence Robinson's head and threatened to "blow her brains out" unless she released the purse. As Florence Robinson relinquished her purse, Frank Robinson told his wife to run as he rushed her assailant, knocking him momentarily to the ground. This gunman, upon recovering, then fled the scene, purse in hand. While Florence Robinson was attempting to escape, the second assailant who had been holding Frank Robinson at gunpoint, fired four shots in her direction. The gunfire frightened Florence Robinson, causing her to cry out. Upon hearing his wife's cry, Frank Robinson mistakenly concluded that she had been wounded and, in an attempt to protect her, purposefully stepped into the gunman's line of fire. As a result, Robinson was shot once in his right shoulder.
Robinson, although wounded, attempted to approach the remaining gunman and disarm him. The assailant retreated some distance and then struck Robinson once in the face with his pistol. The gunman again demanded Robinson's money and his watch. In response to these demands, Robinson stated that while he was carrying no money, he did have some food stamps, which the gunman then demanded. Robinson threw the food stamps to the ground and, in an attempt to escape, kicked the assailant in the face as he stooped to retrieve them. The assailant then fled.
When interviewed at the hospital shortly after the robbery, Frank Robinson provided the police with a description of the two men.3 Florence Robinson, while able to corroborate her husband's rendition of these events; viz., that they were assaulted by two young black men, one of whom stole her purse while the other shot her husband, was unable to describe either assailant.4
The Robinsons, accompanied by their granddaughter, attended a lineup 12 days after the robbery. While his wife was unable to make an identification, Frank Robinson identified appellant as the assailant who robbed and shot him. The validity of this lineup identification, although the subject of a pretrial suppression motion below, is not challenged by appellant on appeal.5
Although appellant describes Frank Robinson's lineup identification as "hesitating," this characterization is not completely supported by the record. During the suppression hearing and at trial, Frank Robinson adamantly asserted that he identified appellant at the lineup as the man who shot, robbed, and struck him in the face with a pistol. Robinson also testified that he identified appellant at the lineup by both his facial features and his voice. According to Robinson's testimony, this identification occurred without hesitation.6
During trial and the suppression hearing, Robinson's testimony enumerated the factors underpinning his lineup identification of appellant. During most of the robbery, appellant was the gunman standing nearest to Robinson.7 Although some of the lights in the vicinity of the schoolyard were inoperative,8 at least three nearby street lights illuminated the area.9 Moreover, as Robinson struggled with the remaining assailant during the later stages of the robbery, the pair moved from a darker area of the schoolyard to a more illuminated location.10 According to Robinson, his food stamps were taken when he was "under the light." 11
Robinson's lineup identification is also bolstered by the fact that, according to his testimony, he observed appellant for at least 15 minutes during the robbery.12 These observations were made at close range. Robinson stated that the assailants were "close enough to put . . . [my] hand on one of them." During further testimony, Robinson noted that he and appellant were standing "face to face" when appellant "stuck the gun . . . in my nose." Finally, Robinson testified that he and appellant were in the most brightly-lit section of the schoolyard, at a distance of three to four feet, for approximately five minutes.
After he identified appellant in the police lineup, Frank Robinson, his wife, and granddaughter, were waiting in the station house hallway for an elevator. Appellant, in handcuffs and accompanied by a police officer, was in the process of being returned to jail. The policemen and appellant entered the elevator along with Florence Robinson and the granddaughter. Frank Robinson, engaged in a conversation with a policeman, did not enter the elevator along with appellant and the others; instead, he rode in the next elevator. Upon rejoining the two women in the lobby, Robinson asked his granddaughter whether she was acquainted with the prisoner in the elevator. She stated that appellant was a former classmate with whom she was casually acquainted. Robinson then replied "that's the boy who shot and robbed me."
A hearing on appellant's motion to suppress Robinson's lineup identification was held immediately prior to trial on December 8, 1976. The trial court concluded, inter alia, that the lineup conducted twelve days after the robbery was not impermissibly suggestive, and, hence, evidence of that identification would be admissible at trial. During the suppression hearing, Frank Robinson, age 75, was unable to identify appellant as the man who had robbed and shot him 23 months earlier:
Well . . . [the prosecutor] asked me if I saw anyone in the courtroom who robbed me. I told him the only guy I see in the room is the guy over there [the appellant]. I don't see anyone who participated in the robbery . . . the guy I picked out of the lineup, I don't see him.13
When Robinson's failure to identify appellant during the suppression hearing was probed by counsel, Robinson wavered somewhat and stated that he "couldn't be sure" whether appellant was the man he had identified at the lineup.
On December 9, 1976, additional testimony was heard on appellant's motion to suppress. Frank Robinson testified that after the December 8 suppression hearing, while he was waiting to be called as a witness at trial, he had observed outside the courtroom and in the courthouse cafeteria, the assailant who shot and robbed him. Although Robinson testified that this individual had
not been present in court during the December 8, 1976 suppression hearing, testimony of his granddaughter and others indicates that the person Robinson had encountered was the appellant. When cross-examined by defense counsel, Robinson testified that his belated recognition of appellant stemmed primarily from observations made while sitting in the courthouse cafeteria:
All I know is the one I saw out there today [in the cafeteria and hallway], I saw good, because I walked around in front of him and behind him — I got a good look both ways.14
At the close of the second day of testimony at the suppression hearing, the trial court ruled that Robinson would be permitted to attempt an in-court identification of appellant. The trial court also ruled that Robinson's granddaughter would be permitted to testify (1) as to Robinson's identification of appellant immediately following the lineup, and (2) as to Robinson's identification of appellant in the courthouse cafeteria.
At trial, the evidence adduced by the government was substantially similar to that presented during the two-day hearing on appellant's motion to suppress. While Florence Robinson was unable to make an in-court identification of appellant, Frank Robinson did identify appellant in court as the man who robbed and shot him 23 months earlier. Although Robinson was extensively cross-examined regarding his inability to identify appellant in person during the suppression hearing on December 8, 1976, he emphatically maintained that appellant was the man he had identified at the lineup as one of his assailants. The...
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