Garris v. U.S., 86-1098.

Decision Date31 May 1989
Docket NumberNo. 86-1098.,No. 86-1518.,86-1098.,86-1518.
Citation559 A.2d 323
CourtD.C. Court of Appeals
PartiesRonald E. GARRIS and Benny L. Walker, Appellants, v. UNITED STATES, Appellee.

Richard Seligman, Washington, D.C., was on the brief for appellant Garris.

Steven R. Kiersh, Washington, D.C., was on the brief for appellant Walker.

Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Mary Ellen Abrecht, Thomas J. Motley, Washington, D.C., and Oliver W. McDaniel, Asst. U.S. Attys., were on the brief for appellee.

Before ROGERS, Chief Judge, and TERRY and STEADMAN, Associate Judges.

ROGERS, Chief Judge:

These appeals from appellants' convictions by a jury of armed robbery, D.C.Code §§ 22-2901 (1981), 22-3202 (1988 Supp.), and appellant Garris' conviction of assault with intent to commit armed robbery, id., §§ 22-501 (1981), 22-3202, challenge the trial judge's denial of appellants' pretrial motions to suppress identification testimony, Walker's motion to suppress his written statement to the police, and Garris' motion for a severance under Super.Ct.Crim.R. 14.1 We hold that (1) the show-up identification held twenty-four hours after the first robbery was permissible because it took place right after two men, fairly described as appellants, attempted to rob the same place the following day; (2) notwithstanding an answer in Walker's statement indicating it was not given voluntarily, the evidence supports the trial judge's finding of voluntariness given the totality of circumstances; and (3) the trial judge did not err in finding that a severance was not required even though there was a measure of irreconcilability between Garris' defense of misidentification and Walker's defense of innocent presence, and given that the misuse of Walker's redacted statement was harmless. Accordingly, we affirm.

I

The government presented evidence that on December 23, 1985, at 11 a.m., appellants entered the Chevron Inn and approached James Bradley, the assistant manager, who was sitting at the front desk. Both men attempted to take pistols from their pockets; Garris' gun dropped on the counter. Appellants demanded money and took approximately $330 from Bradley. Judy Mabilog, a secretary to the general manager, was walking out of the lobby when the two men entered, and she observed some of their actions from outside the Inn. Twenty-four hours later, on December 24, 1985, Garris and another man who fit Walker's description returned to the Chevron Inn, and Garris pointed a gun at Bradley and demanded money. When Vina Tavedikul, a gift-shop worker, entered the lobby, the two men fled without taking any money. Forty-five minutes later, Garris was brought back to the Inn where Bradley identified him as one of the men involved in the two incidents. Fifteen to twenty minutes after that, Walker was brought back to the Inn and Bradley identified him as the second man involved in the December 23rd incident. Bradley was uncertain whether Walker also was involved in the December 24th incident since Bradley had not seen the second man's face and Walker's clothes were different from those which the second man was wearing.

Walker testified that Garris drove him and another man named Earl to the Inn on both days in a car owned by Garris' mother, but claimed that he had been told to stay in the car while the others went into the Inn, and, consequently, he had no knowledge of any criminal activity on either day. Walker explained that on December 24th he fled with Garris because he was afraid and did not know what had happened. Garris did not testify, but presented evidence through his mother that he did not have keys to her car. He also called Officer Sullivan who testified that on December 24th he advised James Bradley that the police were bringing a subject back to the Inn. Officer Sullivan told Bradley that he wanted him to try to identify the subject as the man who had attempted to rob the Inn earlier.

II

Appellants challenge the trial judge's denial of their pretrial motions to suppress identification evidence. They contend that Bradley's identification of them was impermissibly suggestive and unreliable because of the more than twenty-four hour delay between the first offense and the show-up identification; Officer Sullivan's statement to Bradley before bringing appellants back to the Inn for identification; the short time Bradley viewed Walker on December 23rd and Garris on December 23rd and 24th; and other shortcomings in Bradley's identification, such as his focus on appellants' clothing as opposed to their facial characteristics. Garris also relies on the suggestive manner in which he was presented, in handcuffs, to Bradley for identification.

The trial judge found that Bradley's identification of Walker with respect to the attempted robbery on December 24th was unreliable because Bradley admitted that Walker was dressed differently from the man who was with Garris in the lobby of the Inn that day, and granted Walker's motion for judgment of acquittal of assault while armed with intent to rob. Regarding the robbery on December 23rd, the judge found that the time between the `confrontation and the show-up was unusually long, but that the delay was understandable since the officers were responding to the second incident at the Inn. The judge also found that Officer Sullivan's words in soliciting Bradley's identification were only somewhat more suggestive than usual, and that Bradley's overall identification was reliable. The trial judge thought that the reliability of Bradley's identification of Walker as the perpetrator of the crime on the 23rd was enhanced by his admission that he could not say whether Walker was involved in the attempted robbery on the 24th. The judge also concluded that Bradley's identification of Garris as the man involved on both days was not unduly suggestive and was reliable.

This court stated in Jones v. United States, 277 A.2d 95, 98 (D.C.1971), that "it is impossible to fix any precise time limit measured by a specific number of minutes from the commission of the crime within which all on-the-scene confrontations must take place." Although at some point the nexus of time and place between the offense and the identification will become too attenuated to outweigh the risk of irreparable misidentification, McRae v. United States, 137 U.S.App.D.C. 80, 87, 420 F.2d 1283, 1290 (1969), this does not mean that show-ups cannot be conducted upon a second-sighting which occurs after the original confrontation. See, e.g., United States v. Evans, 141 U.S.App.D.C. 321, 438 F.2d 162, cert. denied, 402 U.S. 1010, 91 S.Ct. 2196, 29 L.Ed.2d 432 (1971) (upholding show-up held thirteen days after burglary as "chance event," where victim recognized offender on the street). Relying on Evans, this court in Jackson v. United States, 354 A.2d 869, 872 (D.C. 1976), upheld a show-up where the victim of a burglary and armed robbery had a chance encounter with the offender on the street three weeks after the crime. The court was influenced by the fact that the arresting officers were responding to an emergency situation, the person arrested was taken to the complainant within minutes, and the victim had had ample opportunity to view the person during the crime. Similar circumstances are present in the instant case, and, consequently, we reject appellants' argument that the police should have conducted a line-up identification because of the amount of time that had passed. The police had the responsibility to ascertain quickly and reliably whether the men they had arrested on December 24th were the perpetrators of the crime that occurred that day. Although the police knew that the arrested men might also be the same men involved in the incident on the 23rd, this knowledge did not taint the show-up since the police apprehended the men in response to the offense on the 24th, and the subsequent identification was a chance event.

The appearance of being in custody also does not necessarily render a showup so suggestive as to give rise to a substantial likelihood of misidentification, Singletary v. United States, 383 A.2d 1064, 1069 (D.C.1978); see also Lyons v. United States, 514 A.2d 423, 431 (D.C.1986); Fields v. United States, 484 A.2d 570, 575 n. 4 (D.C.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2144, 85 L.Ed.2d 501 (1985); Jones, supra, 277 A.2d at 97, particularly where the identification takes place at the scene of the crime within a short period of time after the incident. See Lyons, supra, 514 A.2d at 426, 431; United States v. Lee, 158 U.S.App.D.C. 296, 485 F.2d 1075 (1973). In any event, the trial judge's finding that Bradley's identification was reliable in light of the totality of circumstances is supported by the record.2 Bradley had sufficient opportunity to observe appellants' faces, physical characteristics and dress.3 The lighting conditions both during the crime and during the identification, which took place shortly after the incident on the 24th, were more than adequate. Bradley's descriptions were accurate, and he exhibited a high degree of certainty in identifying both men, notwithstanding the fact that he did not specifically describe their facial characteristics. See Nichols v. United States, 343 A.2d 336, 344 (D.C.1975).

III

Appellant Walker contends that his statement to the police was not voluntarily made and that, consequently, the trial judge erred in denying his pretrial suppression motion. Alternatively, he contends that the trial judge made insufficient findings on the issue of voluntariness.

An allegedly coerced confession is inadmissible for any purpose unless the trial court determines, by a preponderance of the evidence, that it was given freely and voluntarily. Wells v. United States, 407 A.2d 1081, 1089 (D.C.1979). Whether a defendant's confession was voluntary turns upon the trial judge's appraisal of the totality of the circumstances,...

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