Dyas v. United States

Decision Date25 July 1977
Docket NumberNo. 9845.,9845.
Citation376 A.2d 827
PartiesJohn DYAS, a/k/a John L. Dyas, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Michael B. Waitzkin, Public Defender Service, Washington, D. C., for appellant. Frederick H. Weisberg, Public Defender Service, Washington, D. C., also entered an appearance for appellant.

Andrea L. Harnett, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William J. Hardy, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, GALLAGHER and YEAGLEY, Associate Judges.

KERN, Associate Judge:

A jury convicted appellant of armed robbery, D.C.Code 1973, §§ 22-2901, -3202, and possession of a prohibited weapon, D.C.Code 1973, § 22-3214(b). Appellant contends now that the judgment of conviction and his sentence of ten to thirty years' imprisonment must be set aside because (1) the police procedure resulting in the complaining witness' identification of him was so deficient as to violate due process, and (2) various errors by the trial judge and the prosecutor during trial were so prejudicial as to require a new trial.

The complainant, Mr. Schools, testified that while he was pumping fuel oil from his delivery truck1 parked in an alley behind 18th Street and Park Road, N.W., around 4 p. m. on March 31, 1974, appellant suddenly appeared and demanded at gunpoint all the cash he was carrying. Mr. Schools gave him $110 and appellant then ran down the alley and disappeared. Police officers arrived several minutes later and received a detailed description of the robber from Mr. Schools including the fact that the man had been wearing a gold earring.

Several days after the robbery, a Detective Mack, who was in charge of this particular robbery investigation, showed Mr.

Schools an array of nine photographs. Mr. Schools selected the photograph of appellant who was the only person depicted in the array wearing an earring. On April 14th, Mr. Schools identified appellant in a lineup and subsequently identified him in court during the trial. Appellant now challenges this identification procedure which he claims was tainted by Mr. Schools' initial viewing of a suggestive photo array that resulted in a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

The defense prior to the trial sought unsuccessfully to bar both the in-court and the lineup identification of appellant by Mr. Schools. At the pretrial suppression hearing Mr. Schools and the two detectives assigned to the case, Klepfel and Mack, testified at some length concerning the identification process followed in this case. The trial court did order suppressed as evidence Mr. Schools' identification of appellant's "earring photograph" because the court concluded the array had been unduly suggestive (Record at 107).2 However, the court found that Mr. Schools had an independent source of identification as an eyewitness based on his clear observation of appellant during the robbery (Record at 106) and therefore concluded that Schools' subsequent identifications of appellant at the lineup and in court were not tainted by his viewing of the impermissibly suggestive photographic array (Record at 107-08, 124).

Appellant now attacks this conclusion by the court, arguing that the lineup and incourt identifications by Schools did not rest upon what he had observed at the scene, but rather on the suggestive photo array he had viewed after the crime and before the lineup. The issue now is whether the trial court erred in its conclusion that Mr. Schools had an independent source of identification, thereby allowing his lineup identification into evidence and permitting him to identify appellant at trial.

The Supreme Court in United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), set forth the following test to be used under these particular circumstances:

[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged by the primary taint. (Maguire, Evidence of Guilt 221 (1959). [Emphasis added.]

The government must come forward with clear and convincing evidence that there is a independent source of identification based on the "totality of the circumstances" before the court can allow either subsequent lineup or in-court identification by the witness. Manson v. Brathwaite, ___ U.S. ___, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; United States v. Gambrill, 146 U.S.App.D.C. 72, 77, 449 F.2d 1148, 1153 (1971).

The Supreme Court has suggested the following factors to be considered by a court in determining whether identification testimony is admissible after there has been an unnecessarily suggestive identification of the accused:

[R]eliability is the linchpin in determining the admissibility of identification testimony. . . . The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson v. Brathwaite, supra, ___ U.S. at ___, 97 S.Ct. at 2253, citing Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375.]

Applying these factors in this case, we are persuaded that the trial court did not err in admitting the lineup and in-court identifications of appellant. Mr. Schools testified (Record at 57, 67, 69, 71-2) that it was a clear day and he had no impediments to his observation of appellant during the two to three minutes they were confronting each other at a distance of three feet.3 Mr. Schools gave a detailed and essentially accurate description of appellant at the scene of the crime. The record does reflect a discrepancy between the witness' initial description of appellant's height to police officers at the scene (Record at 311), and appellant's actual appearance at trial. The discrepancy, however, was explained adequately by Mr. Schools at trial when he testified that at the time of the offense, appellant was wearing platform shoes.4 We note that less than two weeks lapsed between the crime and the lineup which was conducted in a proper procedural manner. Mr. Schools did not hesitate in his identification of appellant and the trial court found that at no time did Mr. Schools either identify another person as the perpetrator of the crime or fail to identify appellant. Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375. We are persuaded that the government met its burden of showing by clear and convincing evidence that an independent source of identification by the eyewitness existed. We conclude that these "indicators" of reliability are "[not] outweighed by the corrupting effect of the suggestive [photo array]." Manson v. Brathwaite, supra, ___ U.S. at ___, 97 S.Ct. at 2253.

Appellant argued to the trial court that improper police procedure prevented him from presenting to the court at the suppression hearing significant evidence on the issue of independent source of identification. This argument rests entirely on testimony at the suppression hearing by complainant that he was shown three photographic arrays by the police (Record at 73-9). The first viewing, according to him, occurred on April 5, 1974, six days after the robbery and contained the suggestive photograph of appellant wearing a gold earring. He testified that a second array was shown to him by plainclothes police officers at a gas station some days later, before the lineup, and he was unable to select anyone in that array of photographs. (Record at 85.) Mr. Schools testified that a third array was shown to him after the lineup and although he was not sure where the viewing occurred, he selected the picture of a man whom he thought was appellant wearing a "corn row" hair style. (Supplemental Record I at 33-4.) The government was unable to account for and produce either the second or third arrays at trial. (Record at 127.) Detective Mack testified that he showed Mr. Schools only one array (Supplemental Record I at 40) and that he did not know of any other police officer who might have shown an array to Mr. Schools. The trial court concluded, upon hearing all the evidence, that the only array shown to Mr. Schools (Record at 131) was the one he had suppressed as evidence. Under the circumstances the trial court is best equipped to assess the credibility of the witnesses and its finding that the detective did not show other arrays to Mr. Schools nor could he locate an officer who might have shown the arrays, is not clearly erroneous and will not be disturbed on appeal.5 United States v. Gambrill, supra; 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).

We turn now to the improprieties asserted by appellant to have occurred at trial. First, appellant argues the trial court deprived him of his constitutional right to present his defense by erroneously refusing to permit the jury to hear testimony from a psychology professor who was proffered as an expert witness on eyewitness identification. The trial court so ruled after testimony by the witness (Supplemental Record II at 31) before the trial that "my testimony only would go up to [the] point of...

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