In re FG
| Decision Date | 26 June 1990 |
| Docket Number | No. 85-1265.,85-1265. |
| Citation | 576 A.2d 724 |
| Parties | In re F.G., Appellant. |
| Court | D.C. Court of Appeals |
Jennifer P. Lyman, Public Defender Service, with whom James Klein and Maureen T. Cannon, Public Defender Service, were on the briefs, for appellant.
Mary L. Wilson, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time the original brief was filed, Frederick D. Cooke, Jr., Corporation Counsel at the time the petition for rehearing was filed, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager and Michele Guiliani, Asst. Corp. Counsel, were on the briefs, for the District of Columbia.
Mary Ellen Abrecht, Asst. U.S. Atty., with whom Timothy J. Reardon III, Principal Asst. U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, were on the brief, for U.S. as amicus curiae.
Before ROGERS, Chief Judge, NEWMAN, FERREN, BELSON, TERRY, and STEADMAN, Associate Judges, and MACK, Senior Judge.*
On Rehearing En Banc
Appellant was adjudicated delinquent for distribution of phencyclidine (PCP) and marijuana, D.C.Code § 33-541(a) (1988). He contends the trial court erred in refusing to conduct a pretrial evidentiary hearing on his motion to suppress evidence of his showup identification by an undercover police officer. We agree. Under our supervisory power over the administration of criminal justice in the District of Columbia,1 we hold that every defendant is entitled to an evidentiary hearing on a motion to suppress a showup identification unless it clearly appears from informal discovery that the defendant is seeking a hearing in bad faith. We therefore reverse the adjudication and remand for an evidentiary hearing on the motion to suppress.2
Following an undercover purchase of marijuana laced with PCP on April 12, 1985, Officer Gerald Awkard radioed the location and description of the seller to two other officers of the Metropolitan Police Department. The description identified the seller as wearing a white T-shirt, dark blue sweat pants, and light blue tennis shoes. The two officers found appellant sitting on a car directly in front of his home. They detained appellant until Officer Awkard drove by and identified appellant as the person who had sold him the drugs about four minutes earlier. A search incident to arrest uncovered neither PCP nor the pre-recorded funds used by Awkard to make the purchase.
In his pretrial motion to suppress Awkard's identification testimony, appellant argued the showup identification was unduly suggestive and unreliable. Appellant alleged no unusual facts about his particular identification, however; rather, he argued that showup identification procedures are inherently suggestive. At a pretrial hearing on the motion, appellant maintained he was entitled to an evidentiary hearing because only through cross-examination of the government's witnesses could he discover additional facts which might support the motion to suppress.
The motions court denied appellant's motion without an evidentiary hearing. In a written opinion supporting its ruling, the court first noted that it is common practice in this jurisdiction to hold a pretrial evidentiary hearing on a motion to suppress an identification. 113 Daily Wash.L.Rptr. 1445, 1451 (June 4, 1985). The court then emphasized, however, both the extreme unlikelihood of success for such motions and the strain on judicial resources caused by evidentiary hearings. Id. The court relied substantially on Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981), in which the Supreme Court held that the due process clause does not require a hearing out of the jury's presence whenever a defendant claims an identification was obtained improperly. 113 Daily Wash.L.Rptr. at 1451. While the court acknowledged that showup identifications are inherently suggestive, it stressed the reliability of on-the-scene identifications by trained police officers and concluded that any suggestivity was not impermissible. Id. at 1451-52. The court added that appellant was not prejudiced from its denial of his motion without a hearing because appellant could attack the reliability of the identification at trial. Id. at 1452.
Jackson, 420 A.2d at 1206 (quoting Duddles, 399 A.2d at 63).
The government believes there is no relevant distinction between a showup identification and a lineup identification and, therefore, contends the Duddles-Jackson test should apply here—i.e., the defendant should have to make factual allegations warranting relief before an evidentiary hearing is required. We disagree. Duddles expressly premised its test on the availability to the defendant of evidence about the government's actions "discovered from the government" or "proffered from the defendant's own view of the case." Id. In challenging a showup identification, however, a defendant has little access to the evidence necessary to make factual allegations warranting relief, in contrast with the typical lineup identification and fourth amendment seizure situations.
As Judge Newman noted in his dissent in this case at division:
At a lineup, the accused has a right to counsel, whose primary function is to observe the procedure so that facts indicating suggestivity and/or unreliability may be later proven at trial. Citation omitted. The accused is, in other words, privy to the facts which might form the basis of a challenge, and can allege them with some specificity in his motion papers.
In re F.G., 534 A.2d 297, 307 (D.C.1987) (Newman, J., dissenting). Such is the case also in most typical fourth amendment contexts. As Judge Newman explained:
Id. at 307. As a result, even if he had a meritorious claim, appellant would probably not be in a position—absent guaranteed, adequate discovery or an evidentiary hearing for which he could subpoena government witnesses—to make factual allegations which, if established, would warrant suppression of the showup identification.
In Clemons v. United States, 133 U.S. App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), the United States Court of Appeals for the District of Columbia Circuit stated:
Whenever the prosecution proposes to make eyewitness identification a part of its case, the defense is entitled to know, through disclosure by the prosecution or by evidentiary hearing outside the presence of the jury, the circumstances of any pre-trial identification. Footnote omitted.
At oral argument, the government maintained that informal discovery is normally available from the prosecutor sufficient to reveal the type of information necessary to prepare—or in good faith to forego—a suppression motion satisfying the Duddles-Jackson test. Unlike the dissent,3 we are unwilling to assume that the prosecutor's offer of informal discovery will provide in every case enough relevant information for proper evaluation of a possible motion to suppress a showup identification. The government has provided no guarantee that adequate discovery will be available with the kind of certainty attributable to information discoverable as of right. The government has not conceded, for example, that it would be willing to disclose before trial the names of police witnesses. In short, the government has not proffered a guaranteed discovery formula on which a defendant—or this court—assuredly can rely. Accordingly, we cannot be confident that a defendant subject to a showup identification will have the material essential for a timely pretrial Duddles-Jackson motion. Absent such guaranteed discovery, the only proper course is to guarantee a pretrial evidentiary hearing for a defendant's challenge to a showup identification at which government witnesses are made available.
The government worries that an evidentiary hearing will turn into a burdensome fishing expedition opening the "floodgates of discovery." In view of its assurances that the prosecutor will volunteer adequate discovery, this concern is ironic—unless the government intends to hold back. In any event, the "floodgates" argument will wither away if the government volunteers through informal discovery enough information to preclude the appropriateness of a suppression motion, or if the trial court exercises proper control—strictly limiting any hearing to facts pertaining to suggestivity and reliability of the showup identification.
The government also argues that a defendant's need can be met...
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