In Re T.C.

Decision Date15 July 2010
Docket NumberNo. 08-FS-1448.,08-FS-1448.
Citation999 A.2d 72
PartiesIn re T.C., Appellant.
CourtD.C. Court of Appeals

COPYRIGHT MATERIAL OMITTED

Kyle A. McGonigal, Washington, DC, for appellant.

John J. Woykovsky, Assistant Attorney General for the District of Columbia, with whom Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for the District of Columbia.

Before FERREN, TERRY, and SCHWELB, Senior Judges.

SCHWELB, Senior Judge:

On September 16, 2008, following an evidentiary hearing in the Juvenile Branch of the Family Court, T.C., then aged 17, was found involved in two counts of armed robbery,1 one count of carrying a pistol without a license (CPWOL),2 and one count of possession of a firearm during the commission of crime of violence (PFCV).3 T.C. was found not involved with respect to one count of possession of a prohibited weapon (PPW (b)) 4 and one count of unlawful possession of ammunition.5 T.C. was placed on probation for one year.

On appeal, T.C. claims that the evidence was insufficient as a matter of law to prove that he was the person who committed the charged offenses, that the trial judge's conduct of the evidentiary hearing was not impartial, and that several of the judge's other rulings constituted reversible error. In our view, there was at least one significant discrepancy in the evidence, which T.C.'s counsel and the judge both failed to detect, and which made the question of guilt or innocence somewhat closer than it would otherwise be. In addition, the judge erred in several of her evidentiary rulings, and although we are confident that she did her best to be fair and to discern the truth, she took an unusually active part in the questioning of defense (but not government) witnesses. Under the circumstances, in our view, the judge might appropriately have paid greater attention to preserving the appearance of impartiality. Nevertheless, we discern no reversible error. Accordingly, we affirm.

I.THE TRIAL COURT PROCEEDINGS

At about 10:00 p.m. on July 2, 2008, Vincent Cartwright and Kevin Amato were robbed at gunpoint by two youths who appeared to be in their teens. The robbers took a bank card and keys from Cartwright and three crisp twenty dollar bills from Amato. Amato had obtained the three twenty dollar bills from an Automatic Teller Machine (ATM) a short time before the robbery.

The robbers fled down an alley, and one of the victims called the police on his cell phone. Officers arrived within a few minutes, and the victims provided reasonably detailed descriptions of the two robbers. Soon thereafter, police detained five young men as possible suspects. One of those detained was T.C.

At a show-up conducted approximately twenty-five minutes after the robbery, both Cartwright and Amato positively identified T.C. as one of the youths who had robbed them. Specifically, they stated that he was the gunman, and that the gunman's confederate had been wearing a mask. T.C. had three fresh twenty dollar bills in his possession. No other fruits of the robbery were recovered from T.C. or found in the surrounding area, and the handgun used in the robbery was never found.

Three of T.C.'s friends, as well as T.C. himself, testified for the defense. According to the defense witnesses, T.C. was not and could not have been the robber. All four young men stated that they and a number of their friends had been playing basketball for several hours at a nearby school. A short time before they left, they saw two other young men running past the scene. Thereafter, police arrived, and the young men who had been playing basketball scattered in different directions. Essentially, T.C.'s friends claimed to have been in his presence until shortly before his arrest, thus providing the basis for an alibi defense.

T.C.'s father, the Program Manager for Intake at the District's Child and Family Services Administration (CFSA), also testified for the defense. The father stated that on July 1, 2008-the day before the robbery-T.C. had withdrawn $143.00 6 from his summer youth employment account at the Chevy Chase Bank. The father further asserted that after T.C.'s arrest, he (the father) had found $80.00 in T.C.'s dresser drawer.7 In response to a question from the court, the father acknowledged that he had not personally observed his son make the withdrawal, but he stated that T.C.'s mother had told him that T.C. had done so. The trial judge immediately sustained her own objection to this testimony as hearsay. T.C. testified in his own behalf, denied any involvement in the robbery, and stated that he had indeed withdrawn approximately $140.00 from an ATM on July 1, and that he had taken $60.00 with him the following day, leaving the rest of the money in a drawer.

The judge, who had interrogated the young defense witnesses in some detail, did not credit their testimony, and she ruled inter alia, as follows:

Now the court heard from the respondent's friends, C.S., J.R. and Ronald Wright, and the court also heard from T.C. And if the court were to believe their testimony, the court would have to believe that they were playing basketball from 5:30 until 10:00, that they were wearing jeans, playing basketball with no basketball, in the dark, and played basketball after they smoked marijuana.
Mr. Wright said that they had played basketball for four to five hours, they then smoked marijuana and then played basketball again, which seems unlikely. The testimony is contradicted by Officer Small,[8] who said that there was no basketball, and the court was dark, and that there was no sporting equipment on the scene, and that he had in fact searched the area.
We have two eyewitnesses who identifi[ed] the respondent, based not just on clothing but also his facial features and his hair, his wristbands and that the respondent was stopped in a short time and within a short distance of the robbery, following the same path of flight identified by Mr. Amato and Mr. Cartwright.

On this evidence, the court finds beyond a reasonable doubt that the respondent took the property that was of value from the two complaining witnesses, that he did so from their immediate actual possession. That he used force and violence to take their property. That he carried the property away without a right to it with the specific intent to steal it. And that at the time he took the property, he had a weapon.

Presumably as a result of her ruling excluding the bank record, the judge made no mention of the testimony of T.C.'s father or of the defense's innocent explanation of the presence of the three twenty dollar bills in T.C.'s pocket, namely, his claimed ATM withdrawal of the previous day. The judge found T.C. involved in armed robbery, PFCV, and related weapons offenses. On October 21, 2008, the judge placed T.C. on juvenile probation for one year. This appeal followed.

II.EVIDENTIARY SUFFICIENCY

T.C. claims on appeal that the evidence against him was insufficient as a matter of law. We disagree.

In assessing claims of evidentiary insufficiency, we view the record in the light most favorable to the District, and we “give full weight to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences.” Poulnot v. District of Columbia, 608 A.2d 134, 137 (D.C.1992); see also In re R.H.M., 630 A.2d 705, 707 (D.C.1993). Although we have recognized that, depending on the circumstances, eyewitness identification of strangers can be unreliable see e.g., Benn v. United States, 978 A.2d 1257, 1265 (D.C.2009) ( Benn II ); Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993),9 that is a consideration that must be evaluated by the trier of fact. Even “the testimony of a single eyewitness can be sufficient to support a conviction so long as a reasonable person could find the identification convincing beyond a reasonable doubt.” Benn II, 978 A.2d at 1265 (quoting Peterson v. United States, 657 A.2d 756, 760 (D.C.1995)) (internal quotation marks omitted).

In this case, positive identifications were made by two witnesses 10 at a show-up held some twenty-five minutes after the robbery. Although such “show-ups” necessarily involve a measure of suggestivity, we have also recognized their utility and reliability. See, e.g., United States v. Hunter, 692 A.2d 1370, 1376 (D.C.1997). Cartwright testified that he recognized T.C. not only by his facial features and dreadlocks, but also because he was wearing the same wristbands that the person who robbed us did.” Amato stated that he identified T.C. on the basis of his dreadlocks and facial features, and like Cartwright, he professed to have no doubt about the accuracy of his identification.

Aside from the identifications, the District relied heavily on the evidence that police found three apparently brand new twenty dollar bills on T.C.'s person, and that shortly before the robbery, Amato had obtained three such bills “from the 711 ATM up the block.” In most instances, and perhaps in this case, such evidence should, to use the vernacular, “seal the deal.” It would surely be a remarkable and improbable coincidence if Amato had been robbed of three brand new twenty dollar bills and if a short time later, a young man identified by the victims as the robber had in his possession three different brand new twenty dollar bills. “Coincidences happen, but an alternative explanation not predicated on happenstance is often the one that has the ring of truth.” Poulnot, 608 A.2d at 139.

In this case, however, there is an unusual quirk. Both complainants identified T.C. as the gunman, and they agreed that T.C.'s fellow-robber was wearing a mask. Cartwright testified that Amato gave the three twenty dollar bills to the masked accomplice, not to the gunman, and he expressed no doubt on that subject. Cartwright stated:

[M]y friend then showed his wallet, to show that there
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2 cases
  • Plummer v. United States
    • United States
    • D.C. Court of Appeals
    • May 10, 2012
    ...of bias at the hearing just before the discretionary, virtually non-reviewable act of sentencing takes place”); see also In re T.C., 999 A.2d 72, 79 n. 13 (D.C.2010) (acknowledging that “it would have been difficult to object to the judge's questioning when to do so would have risked irrita......
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