Hager v. United States
| Decision Date | 24 October 2013 |
| Docket Number | 10–CF–66.,Nos. 09–CF–1405,10–CF–65,10–CF–67,s. 09–CF–1405 |
| Citation | 79 A.3d 296 |
| Parties | Tywon M. HAGER and Devon Davis, Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Bruce A. Johnson, Jr., for appellant Hager.
Jenifer Wicks, Washington, DC, for appellant Davis.
Elizabeth Gabriel, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Reagan M. Taylor, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and OBERLY, Associate Judges, and REID, Senior Judge.
Devon Davis and Tywon Hager were convicted of armed robbery,1 assault with intent to commit robbery,2 and possession of a firearm during a crime of violence (“PFCV”) 3 in connection with an incident on the early morning of July 1, 2008. Davis was separately convicted of escape 4 and violating the Bail Reform Act (“BRA”).5 In addition to mounting a constitutional challenge to his exclusion from the voir dire process, Davis raises evidentiary challenges to his convictions for armed robbery, assault with intent to commit robbery, and PFCV. Davis does not separately challenge his escape and BRA convictions. We find no merit to Davis's evidentiary arguments. Because we find that the trial court committed reversible error by denying Davis his right of presence during voir dire, however, we reverse the judgment against him and remand his case for a new trial. Hager does not challenge the conduct of voir dire without his presence, but argues only that the trial court erred in admitting evidence of his pretrial identification by the complainants and that there was insufficient evidence presented at trial to support his convictions. As in Davis's case, we find Hager's evidentiary arguments without merit and affirm the judgment against him.
At approximately 1:30 on the morning of July 1, 2008, Jamar Harrison, his mother Rhonda Harrison, and two of his friends, Corey Sheppard and Charles Ford, were returning from a 7–Eleven and parking their car when they saw a black Mercedes Sport Utility Vehicle (“SUV”) stop in the middle of the street in front of them. Three men jumped out of the SUV and approached them with guns as they got out of their car. After taking cash and cell phones from the victims, the three men returned to the SUV and drove away. The victims reported the robbery to police and gave descriptions of their attackers. The description of one of the attackers was of a heavily built black male with “long dreads” wearing a green shirt and blue jean shorts.
The police tracked Jamar Harrison's stolen cell phone to an alley where three or four black men were seen talking among themselves. Upon approach, the men ran from the police. In the alley, the police found a black Mercedes SUV and a second stolen cell phone that was determined to belong to Ford. Jamar Harrison's wallet was in the SUV. Appellant Davis's fingerprint was found on the phone in the alley. Shortly thereafter, three men generally matching the description of the robbers were spotted running along a fence line near the alley and into an apartment building. A police dog tracked human scent from the black Mercedes SUV in the alley to the same apartment building. Once inside the building, the dog led the police to an apartment where Davis's mother lived.
The police found Davis, Hager, and a third man in the bedroom of Davis's mother's apartment. Hager, a black male wearing his hair in long dreadlocks, was wearing blue jean shorts and a green t-shirt somehow wrapped around his body. A “man-sized” green shirt was later collected by police on a pile of clothes that contained no other “man-sized” clothing near the same bedroom. Jamar Harrison's cell phone was found on a dresser in the bedroom. When arrested, Hager was in possession of $801.
Later the same morning, Jamar Harrison, Sheppard, and Ford were separately shown photo arrays for both Hager and Davis. Sheppard was unable to make an identification of Hager. Jamar Harrison selected Hager's photo and said, “Maybe number 1, he looks like the driver.” Ford also chose Hager's photo and stated, “This looks most like the dude with the dreads.” When shown a photo array for Davis, Ford was unable to make an identification. Sheppard selected Davis's photo and said, “This face looks familiar.” Harrison also picked Davis's photo and said, “Maybe number 3, it looks like the person who checked me.”
At trial, both Hager and Davis moved to suppress the identifications on due process grounds. The trial court denied the motions, concluding that the circumstances of the identifications were not unconstitutionally suggestive. In court, none of the complainants identified Hager or Davis as their attackers. Jamar Harrison testified that he would recognize his robbers if he saw them again, but when asked if he saw any of them in the courtroom, he answered “No.” On cross-examination, when asked why he picked Davis's picture from the array, Sheppard testified that he Sheppard further testified that he did not see any of the perpetrators in the courtroom. Ford testified on cross-examination that the person he picked in the photo array looked most like the robber with dreadlocks, but he was not sure that the robber was in the photo array at all. Ford denied seeing any of the robbers in the courtroom. The trial court permitted the government to introduce, over objection, the photo arrays and the pretrial identifications.
During trial, the government moved to admit Ford's stolen cell phone that had been found in the alley near the SUV. The cell phone provided significant forensic evidence against Davis because his fingerprint was identified on the phone's glassy surface. The crime scene officer who collected Ford's phone testified that after processing the phone for fingerprints, she placed the phone in an evidence bag and submitted the fingerprint evidence to the Evidence Operation Center for analysis. The same crime scene officer authenticated the phone on the stand by recognizing her name and badge number on the sealed evidence bag that held the phone.
Ford could not specifically identify the phone as his when testifying. However, he stated that the phone in evidence was of the same type. Another police witness testified that he had matched the serial number on the phone with Ford's phone records in order to confirm that the phone belonged to Ford. Over several different types of objections, the trial court permitted the government to introduce Ford's cell phone and the accompanying fingerprint testimony.
The government called the two police officers who had found Hagar, Davis, and a third man in the bedroom of Davis's mother's apartment. The first officer testified that he saw a cell phone on a dresser in the bedroom. The officer called the phone number that had been given to the officer by Jamar Harrison for his stolen phone. When the phone rang, the officer knew that he had found the right phone. A different officer collected the phone and authenticated it for evidentiary purposes at trial. The trial court admitted the cell phone and testimony about where it was found. Davis later filed a motion to strike this evidence which the trial court denied.
Prior to the beginning of voir dire, defense counsel for Davis and the trial court engaged in the following colloquy:
The trial court conducted voir dire by asking a series of questions to the jury panel as a group. The court then called prospective jurors to the bench, as deemed necessary, to give their individualized answers. Any follow-up questions by the trial court and counsel were also asked and answered at the bench. Prior to the beginning of individual voir dire, the trial court ran a functionality test of the headsets. After it became clear that the headsets were not working properly, the court stated Without any perceivable break in the proceedings, the trial court then began interviewing jurors. Five panel members were interviewed before the court checked to see if the headsets were working. At least once more during voir dire, Davis's defense counsel complained that the defendants were having trouble hearing the panel members. In all, voir dire was conducted on 71 jurors totaling 170 pages of transcript. All of it was conducted at the bench without the defendants.
Super. Ct.Crim. R. 43(a) provides, in pertinent part: “The defendant shall be present at the arraignment, at the time of plea, [and] at every stage of the trial including the impaneling of the jury....” A defendant's Rule 43(a) rights...
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...from his constitutional rights to be present at his own criminal proceedings under the Fifth and Sixth Amendments.” Hager v. United States, 79 A.3d 296, 301 (D.C.2013).Rule 43(a) encompasses “the right of the defendant to be present, upon request, at the bench as voir dire is proceeding.”Id......
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