Douglas v. United States, 11438.

• Decision Date: 11 April 1978
• Docket Number: No. 11438.,11438.
• Citation: 386 A.2d 289
• Parties: Jefferson DOUGLAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

386 A.2d 289

Jefferson DOUGLAS, Appellant, v. UNITED STATES, Appellee.

No. 11438.

District of Columbia Court of Appeals.

Submitted January 25, 1978.

Decided April 11, 1978.

Dolores C. McCartney, Silver Spring, Md., for appellant.

Ann P. Gailis, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, and John L. Kern, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KELLY, KERN and NEBEKER, Associate Judges.

KERN, Associate Judge:

Appellant was convicted by a jury of taking indecent liberties with a child in violation of D.C.Code 1973, § 22-3501(b), and of sodomy in violation of D.C.Code 1973, § 22-3502, for which he was sentenced to concurrent terms of incarceration of two to six years on the first two charges and one to three years for sodomy. On appeal, he argues (1) that the trial court erred in refusing to suppress evidence which was alleged to be the result of a forceful entry and warrantless search of appellant's apartment, (2) that the trial court erred in admitting allegedly uncorroborated testimony of a child concerning a sexual assault, and (3) that the trial court erred in excluding testimony by a psychologist concerning appellant's incapacity to commit the type of sexual offenses with which he was charged. We affirm the convictions.

On Sunday morning, January 2, 1975, a twelve-year-old boy went to a Safeway store at Sixth and H streets, N.E., near his home, where he hoped to earn money by assisting customers with their parcels. At approximately 10:30 a. m., a stranger offered him $6.00 if he would move some boxes for an elderly woman on E Street, N.E. The child refused at first but agreed to help after the man persisted in his request. They walked for a number of blocks until they reached a green house, where the man led the way into a second floor apartment. There, the man took the boy into a bedroom where he showed him three photographs on top of a dresser in which the man himself appeared with some women. The boy was then allowed to watch television in the bedroom for a few minutes, until the man turned off the set and instructed him to look out the window for a white truck while the man put on a "costume." When the youngster turned away from the window, he saw that the man had removed his clothes and was wearing only a pair of women's "stocking underwear." The man then sexually assaulted the boy and committed oral sodomy.

After the incident, the man gave the boy $1.00 and warned him not to tell anyone what had happened. As the boy left the house, he observed the address.

Shortly thereafter, a young acquaintance saw the boy running along H Street in the direction of his home. When he was asked what was wrong, the boy replied that there was something important which he must tell the police. The friend flagged down a passing patrol car which was driven by Metropolitan Police Officer George Hawkins II. Officer Hawkins listened to the boy's story and took him to the police station where the youth told Detective Robert Catlett what had happened. He described the apartment and the location of the photographs and told the detective that he thought the incident had occurred at 714 17th Street, N.E. They got into a police cruiser to locate the apartment but could find no such address. Ultimately, the detective asked the boy to close his eyes and write the number just as he had seen it. The child wrote 1714. There was no 1714 17th Street, N.E., so they began checking cross-streets, and the boy identified 1714 E Street, N.E., as the place the offense had occurred.

Accompanied by the boy, Detective Catlett knocked on the door of the second floor apartment and announced that he was a police officer. Although no one answered, the detective thought he heard something in the apartment. He therefore tried the door and succeeded in unlocking it with his pocket knife.¹ They entered the apartment, and the boy showed the detective the back bedroom where he had been molested, with the television and the photographs of his assailant on the dresser, as he had previously described. While they were in the apartment the detective saw traffic violations bearing a name later identified as that of appellant.²

The next morning Detective Catlett told Officer Hawkins that he knew what the boy's assailant looked like, but he was not certain of his name. Hawkins went to the apartment and told appellant's wife that a person supposedly living at that address had traffic warrants outstanding against him. By this means he secured appellant's name, which he relayed to Detective Catlett. That same day the detective obtained a police department photograph of appellant, which had been taken as a result of a previous traffic arrest, and included it in an array of photographs which he showed to the boy. Appellant's picture was identified as the assailant. Appellant was arrested later that day, and the child identified him again from a lineup a week later.

At the time of the arrest, appellant told Detective Catlett that he had been home alone during the entire morning of the offense. At trial, however, he presented an alibi defense, stating that around 8:30 a. m. that day a neighbor helped him move a rug into his apartment. Then, at approximately 9:45 or 10:00 a. m., a friend came by and they went to a local sandwich shop where appellant talked with a waitress for about 30 to 45 minutes. From there the two men went to the home of appellant's sister where they watched television for approximately an hour and a half, and then they went to two bars at which they watched a football game. Although appellant's sister did not testify at trial, the neighbor, appellant's companion, and the waitress all appeared for the defense. Appellant's companion essentially corroborated his story, although he disagreed with appellant about the time they went home.³ The waitress at the diner also testified that appellant and his companion had come into the place where she worked one day during November of 1975.⁴

Appellant's first contention on appeal is that the trial court erred in refusing to suppress evidence which was alleged to be the result of the forceful entry and warrantless search of appellant's apartment by Detective Catlett on the day of the offense. Appellant's particular assertion is that a photograph album was seized at that time, and that pictures from this album were used the next day in the photo array from which the complainant identified him as the assailant. This argument is factually inaccurate, however, for the record establishes that although the detective did remove a photograph from the apartment, it was not included in the identification array; instead, a photograph from the files of the Metropolitan Police Department was used. Thus, the police in no way made use of the illegally seized photograph. Because, therefore, the photograph seized had no role in the subsequent identification procedure, there simply was no specific tainted evidence for the court to suppress. See Bynum v. United States, 107 U.S.App.D.C. 109, 274 F.2d 767 (1960), cert. denied, 379 U.S. 908, 85 S.Ct. 202, 13 L.Ed.2d 180 (1964).

Appellant also argues generally that the warrantless search was in violation of his Fourth Amendment rights, and that "anything obtained or used against him as a result was inadmissible as evidence." We therefore consider the issue whether the discovery of appellant's name itself, and consequently all subsequent identifications, resulted from an illegal search and should have been excluded. The trial court ruled that suppression was not required since even if Detective Catlett had learned appellant's name by seeing the outstanding traffic tickets during the warrantless entry into the apartment, the appellant's identity had been subsequently acquired by Officer Hawkins through a means which was independent of the entry.

We agree with the trial court that the police obtained appellant's name through the efforts of Officer Hawkins rather than from the illegal search by Detective Catlett. Clearly, the address of appellant was known to the police through the complainant's identification of the place of the offense on the previous day. Testimony at trial indicated that Officer Hawkins probably was not aware of the name of the accused when he went to the apartment to determine the identity of the householder, nor of actual traffic tickets outstanding against this person. ⁵ Although Officer Hawkins alluded to hypothetical traffic warrants as an excuse for obtaining appellant's name without arousing the suspicions of the person whom he questioned,⁶ the incidental use of this excuse cannot be said to have facilitated the police in securing the critical information, viz., the appellant's name. Thus, in this case the government has sufficiently demonstrated that the appellant's identity was derived from a source which was independent of the illegal search of appellant's apartment. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Silverthorne v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

The trial court also refused to suppress pretrial and in-court identifications of appellant by the victim, on the ground that the boy had had a good opportunity to observe his assailant during the incident,⁷ and that there was thus a source for his identification which was independent of anything suggestive which he might have seen during his visit to the apartment with Detective Catlett. This conclusion is supported by the record and therefore will not be overturned on appeal. See Clemons v. United States, 133 U.S.App.D.C. 27, 38, 43, 408 F.2d 1230, 1241, 1246 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). See also D.C.Code 1973, § 17-305(a).

Appellant's second contention is that the trial court erred in admitting testimony of the victim — a twelve-year-old-boy —...