Harvey v. United States

• Decision Date: 28 November 1978
• Docket Number: No. 11213.,No. 12693.,11213.,12693.
• Citation: 395 A.2d 92
• Parties: Paul J. HARVEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 92

395 A.2d 92

Paul J. HARVEY, Appellant, v. UNITED STATES, Appellee.

No. 11213.

No. 12693.

District of Columbia Court of Appeals.

Argued September 14, 1978.

Decided November 28, 1978.

Rehearing and Rehearing En Banc Denied March 7, 1979.

Thomas C. Devlin, Washington, D.C., appointed by this court, for appellant.

David S. Krakoff, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Peter E. George, Bernard J. Panetta, II, and Richard W. Goldman, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before GALLAGHER, NEBEKER and MACK, Associate Judges.

MACK, Associate Judge:

Following a jury trial, appellant was found guilty of second-degree burglary (D.C.Code 1973, § 22-1801(a)); armed robbery (id. §§ 22-2901, -3202); assault with intent to kill while armed (id. §§ 22-501, -3202); and malicious disfigurement (id. § 22-506). On appeal, he assigns as error 1) the trial court's refusal to suppress lineup and subsequent in-court identifications which occurred after an allegedly suggestive confrontation; 2) his reindictment to include additional charges; 3) the fact that the grand jury which reindicted him heard only hearsay evidence through the reading of the first grand jury minutes; 4) a purportedly impermissible inference in the prosecutor's closing argument; and 5) the denial of his motion for a new trial on the basis of ineffective assistance of counsel.¹ We affirm.

Because appellant's argument primarily focuses on the allegedly suggestive pretrial confrontation, we will recount, at some length, the evidence bearing upon identification.

THE ROBBERY

At approximately 6:15 p.m. on September 30, 1975, Mrs. Mary Turner was cleaning offices on the second floor of the Department of Agriculture. She kicked open the door to a darkened room and saw the head of a man rising from behind the desk. She screamed for help and backed approximately forty feet down a hallway. Due to the energy crisis, every other light was out in the hallway. However, Mrs. Turner was directly under the light in front of the elevator when her assailant grabbed her and dragged her back into the darkened room. Mrs. Turner saw the face of her assailant from the time he dragged her from the hall back into the office.² The assailant then proceeded to beat her with an iron pipe and robbed her of her wallet. Finally, he made his escape through the halls and stairways of the building.

A fellow worker, Mr. Reggie Patterson, chased the assailant for approximately twenty minutes. Although the assailant had his back to Mr. Patterson during the chase, he confronted Mr. Patterson twice. Mr. Patterson was approximately eight feet from the assailant when he pulled a pipe from his sleeve and told Mr. Patterson to stay away from him. Mr. Patterson maintained his distance but continued to pursue him into another wing of the building where the assailant picked up a bottle and threw it at him hitting him on the wrist. During the chase, John English, another cleaning employee, saw the assailant on the other side of a glass door and then viewed him as he pushed the door open and ran by him. Mr. English joined the chase until the assailant threatened Mr. Patterson with the pipe.

Finally, two other employees also encountered the assailant. Milton Coles, the supervisor of the cleaning crew, saw the side of assailant's face from a distance of approximately ten feet but lost sight of him when he immediately turned the corner. Janice Melvin saw the assailant as he ran past her nearly pushing her into a bucket of scrub water. She testified she saw his face for approximately five or ten seconds as he glanced at her while running.

IDENTIFICATION

On October 5, 1975 Mr. Patterson identified a photograph of appellant after being shown over 700 slides. On December 5, 1975 Mrs. Turner sat with Mr. Patterson and Mr. English outside the lineup room of the police department waiting for the other witnesses to arrive for the lineup.³ They were approximately fifty feet from the elevator when the door of the elevator opened and Mr. Coles emerged from the elevator. As he walked toward them they saw the appellant, who had been released on his own recognizance, step off the crowded elevator. Mrs. Turner and Mr. English immediately identified the appellant. At this point there is some conflict in the testimony. Mrs. Turner testified that she was the only one who said anything and no one else saw the appellant. She stated that she said, "Look" and Mr. Patterson said "I know who it is, I don't have to look. I can smell him a mile away." Mrs. Turner then testified that Mr. Coles asked her what she was looking at and when she told him it was her attacker, Mr. Coles turned to look but the appellant had gone into another room. However, Mr. Patterson testified that he told Mrs. Turner "There's my man" and they both tried to attract Mr. Coles' attention to him but were unsuccessful.⁴ Mr. English did not hear either one say anything until Mrs. Turner told Mr. Coles that he had been on the same elevator as her attacker. It is clear however that neither Mr. Coles nor Ms. Melvin saw the appellant in this encounter in the police station hall.

The officers directing the lineup explained the procedure to be followed to each witness who then individually viewed the lineup and was kept separate from those who were yet to see it. Each of the five witnesses made a positive identification of the appellant in the lineup and also an in-court identification at the time of trial.

I.

Appellant's contentions stem from the trial court's refusal to suppress a lineup and subsequent in-court identification which occurred after a confrontation between the witnesses and appellant in the hallway of the police station outside the lineup room. Appellant argues that this hallway confrontation irreparably tainted the witnesses' subsequent identifications and under the "totality of circumstances test" the lineup and in-court identifications are not reliable. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In Cureton v. United States, D.C.App., 386 A.2d 278 (1978), this court recently considered the ramifications of a spontaneous identification, resulting from an inadvertent encounter of a handcuffed defendant in a police department elevator following a lineup. We held that

[T]he introduction of an in-court or out-of-court identification made under conditions similar to those of the instant case will be found to comply with the mandates of due process provided (1) the confrontation is inadvertent, accidental, or unplanned, (2) the identification is spontaneous and positive, (3) the police and prosecution did not intend that an identification be attempted, (4) no one pointed out the accused to the witness, and (5) the witness is cross-examined fully at trial concerning the basis of the identification. [Id. at 288 (footnote omitted).]

Initially, appellant attempts to distinguish this case on the basis that the spontaneous identification occurred prior to the lineup and thus the lineup was influenced by the inadvertent encounter. In Cureton,⁵ we cited decisions of six federal circuit courts of appeal^5a collectively supporting the conclusion that a later in-court identification of the defendant subsequent to a spontaneous pretrial recognition was not barred on due process grounds even though no untainted identification preceded the challenged confrontation (as in Cureton).⁶ We perceive no difference in analysis as to the admissibility of an in-court identification after an allegedly suggestive encounter as in Cureton and the admissibility of a lineup and in-court identification after an allegedly suggestive encounter. The facts of this case demonstrate that it is precisely the situation where the standards which emerge from Cureton should be applied.

Furthermore, the most recent Supreme Court case in this area, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), involved the suggestive presentation of a single photograph for identification to an undercover police officer prior to the in-court identification. The Supreme Court held that the pretrial photographic identification was admissible in the face of a due process challenge if "under the totality of the circumstances" the identification was reliable. Id. at 113-14, 97 S.Ct. at 2252. The standards articulated in the Cureton decision were based on the reliability analysis⁷ involved in Manson v. Brathwaite, supra. Therefore, if the Cureton standards are satisfied, the introduction of this evidence comported with the requirements of due process.

Application of the five factor analysis to the facts of this case persuades us that due process was not offended by the admission at trial of the testimony involving the lineup identification and the witnesses' subsequent in-court identification.

There is no dispute in the record that the hallway confrontation was not planned but was accidental and inadvertent. Mrs. Turner, Mr. Patterson and Mr. English testified that they spontaneously and positively recognized appellant immediately after he descended from a crowded elevator. Unlike the situation in United States v. Matlock, 491 F.2d 504 (6th Cir.), cert. denied, 419 U.S. 864, 95 S.Ct. 119, 42 L.Ed.2d 100 (1974); Mock v. Rose, 472 F.2d 619 (6th Cir. 1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2165, 36 L.Ed.2d 693 (1973) and United States v. Hamilton, 469 F.2d 880 (9th Cir. 1972), there was nothing about the defendant's appearance or condition at the time of the out-of-court identification, such as being in prison garb or handcuffed, to suggest that he was a defendant in a criminal prosecution.⁸ The elevator was open to the public and the appellant had been released on his own recognizance. The identification by the witnesses of the appellant departing from a crowded elevator stemmed from the witnesses' spontaneous recognition of the appellant based on...