Hill v. United States, 5649.

• Decision Date: 23 August 1971
• Docket Number: No. 5649.,5649.
• Parties: Johnny Alonzo HILL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 925

280 A.2d 925

Johnny Alonzo HILL, Appellant, v. UNITED STATES, Appellee.

No. 5649.

District of Columbia Court of Appeals.

Argued June 28, 1971.

Decided August 23, 1971.

Everett J. Santos, Washington, D. C., appointed by this court, for appellant.

Leonard W. Belter, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Richard L. Cys, Asst. U. S. Atty., also entered an appearance for appellee.

Before PAIR, REILLY and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

In this appeal from a jury conviction of petit larceny,¹ appellant claims that the

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identification procedure on which the Government's case depended, "was so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellant] was denied due process of law" and accordingly that it was error for the trial court to overrule his motion for judgment of acquittal.

The evidence reflected that on September 26, 1970, a cash register on the lunch counter in the Trailways Bus Terminal, at 12th Street and New York Avenue, N.W., was pilfered by four young men who fled on foot. Of the four, only appellant was apprehended. About 15 minutes after the larceny occurred, appellant was brought back to the bus station where Miss Smith, the cashier whose register had been rifled, identified him. She also subsequently identified him at a lineup and in court.

Defense counsel did not object at trial to the on-the-scene identification procedure which was thoroughly described in the testimony of the arresting officer and Miss Smith, nor did he move to suppress that testimony. The grounds for appellant's motion for acquittal at trial were that "the government [had] not carried its burden of proof beyond a reasonable doubt." Appellant argues for the first time on this appeal that even though his present concern with the propriety of the identification procedure was not raised below, it was error for the trial court to overrule his motion for acquittal since the identification procedure was so prejudicial as to deny appellant due process of law.

However, such a motion does not serve to question the propriety of the identification procedure. The trial court, in deciding a motion for acquittal, need only consider "whether there is sufficient evidence to allow the jury to find guilt beyond a reasonable doubt." Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967).

Therefore, it remains for us to determine whether the identification procedure now complained of amounted to plain error² of the sort which we should consider on appeal.

The power of this court to notice errors raised for the first time on appeal is discretionary and it has long been held in this jurisdiction that "[a]bsent a clear showing of prejudice, we are not disposed to notice alleged errors which are raised for the first time on appeal." Harris v. United States, 112 U.S.App.D.C. 100, 101, 299 F.2d 931, 932 (1962) quoted with approval in Bunter v. United States, D.C.App., 245 A. 2d 839 at 841 (1968).

As to procedural issues raised for the first time on appeal, it has been said that: "Federal courts, including the Supreme Court, have declined to notice errors not objected to below even though such errors involve a criminal defendant's constitutional rights." United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

The reason for requiring that specific objection be made to the alleged error at trial is to give the judge an opportunity to correct the error and thus to avoid the necessity of future proceedings. United States v. Indiviglio, supra at 280. Furthermore, a timely objection would alert the prosecution to the defendant's claim of error and afford it the opportunity of clarifying the record on the issue raised.

Appellant has not pointed out any exceptional or unusual circumstances surrounding the on-the-scene identification which might indicate that the procedure was so unduly suggestive and prejudicial as to have constituted a denial of due process.

In determining whether the identification procedure was so unnecessarily suggestive as to deny appellant due process of law, the critical issues to resolve are whether there was sufficient proximity of time between the...