Lucas v. United States, 83-692.

• Court: D.C. Court of Appeals
• Writing for the Court: Belson
• Citation: Lucas v. United States, 497 A.2d 1070 (D.C. 1985)
• Decision Date: 29 August 1985
• Docket Number: No. 83-692.,83-692.
• Parties: Victor C. LUCAS, Appellant, v. UNITED STATES, Appellee.

Page 1070

497 A.2d 1070

Victor C. LUCAS, Appellant, v. UNITED STATES, Appellee.

No. 83-692.

District of Columbia Court of Appeals.

Argued April 2, 1985.

Decided August 29, 1985.

Randy Hertz, Public Defender Service, Washington, D.C., with whom Mark S. Carlin and James Klein, Washington, D.C., were on brief, for appellant.

Wendy Bebie, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Judith Hetherton and Barry M. Tapp, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before FERREN, BELSON and ROGERS, Associate Judges.

BELSON, Associate Judge:

Appellant was convicted of kidnapping while armed, D.C.Code §§ 22-2101, -3202 (1981 & 1984 Supp.), rape while armed, id. §§ 22-2801, -3202, carnal knowledge, id. § 22-2801, and two counts of sodomy, id. § 22-3502. Appellant challenges on appeal the trial court's denial of his motion to bifurcate the merits and insanity phases of his trial. We affirm.

I

A man, later identified by the complainant as appellant, abducted, sodomized and raped the complainant, a 14-year-old girl. Complainant was walking along a path on the afternoon of September 7, 1982, when appellant passed by. Appellant then suddenly approached complainant, held a piece of broken glass to her throat, and pulled her into the nearby woods. Complainant resisted by screaming and hitting appellant. She stopped resisting after appellant stuck his fingers into her throat and told her to shut up. Appellant directed complainant to pretend that they were boyfriend and girlfriend. When complainant saw a group of young male friends in the woods, she furtively tried to tell them to get her mother. When the boys again encountered appellant and complainant, appellant again instructed her to act as if they were boyfriend and girlfriend. As the boys approached, appellant threatened that if they came nearer he would kill complainant. The boys left to summon help.

Appellant forced complainant to run farther into the woods, where he directed her to lie down. After placing his hat over her face, he sodomized her. At the sound of sirens, appellant ran with complainant until they came to the basement of a vacant building. In the basement, which was extremely dark, appellant stated "since I'm going to get accused of doing it, I might as well do it" Appellant raped complainant twice and again sodomized her. Appellant thereafter permitted complainant to leave. She ran until she met some police officers. Their initial search failed to locate appellant.

Complainant described appellant to the police as between 5'9" and 6', with a husky build, brown eyes, and a complexion similar to complainant's. The assailant had a round face, a wide nose, medium lips, a chipped tooth, and a short mustache. He wore a blue hat, a blue jacket with a horse insignia, blue jeans, and "All-Stars" tennis shoes.

Two days after the offense, a detective showed 10 slides to complainant at the police station. When she saw appellant's picture, complainant told the detective that the body, build and, face looked familiar, but that he was not the assailant. After leaving the station, however, complainant told her godmother that she thought appellant was her attacker. Complainant rejected her godmother's suggestion that she promptly inform the detective, preferring to check the pictures carefully the next time. Complainant explained at trial that she did not identify appellant initially because she was trying to visualize her assailant without a sweaty face.

The next day, another detective brought 12 pictures to complainant's house. Complainant selected appellant's photograph and stated that from the side he looked just like her assailant.

On September 10, complainant attended a line-up. Complainant asked if the man that she had selected from the photographs would be in the line-up. A detective answered that he might be. Complainant immediately identified appellant at the lineup, stating that she could not forget the person who had assaulted her.

II

Appellant filed several pretrial motions, including a motion to suppress complainant's identification and a motion to bifurcate the merits and insanity phases of the trial. We will discuss the suppression hearing because it afforded the trial judge an opportunity to assess the strength of appellant's misidentification defense, a circumstance that is important to our disposition of this appeal. In support of that motion, appellant argued that complainant's identification should be suppressed because only appellant figured in all three identification sessions; only he met complainant's general description; his photograph stood out because it was new; the police indicated that the person she had selected from the photographs might be in the line-up, and complainant initially did not identify appellant. Although he acknowledged complainant's ordeal was fairly lengthy, appellant pointed out at the two critical times complainant's face was either covered or she was in the pitch dark basement.

The trial judge heard at length the testimony of complainant concerning the entire course of events during which he had the opportunity to observe appellant and the circumstances under which she identified him. He heard the testimony of a detective as well. The trial judge then denied appellant's motion to suppress complainant's identification. He noted that there is "some degree of suggestiveness when a police officer indicates to a witness that a suspect's picture is among the photographs in an array or in a line-up." He observed, however, that such a statement may be relatively harmless, as the victim could be expected to realize that she would not be asked to view the line-up if a suspect were not present. The court concluded that the identification procedures were not unduly suggestive and appeared to indicate that complainant's identification was reliable. On appeal appellant does not contest this ruling.

The trial judge initially agreed to grant appellant's motion for bifurcation. Upon reflection and further argument, however, he denied the motion.¹ In light of the court's decision to proceed with a unitary trial, appellant announced that he would not contest the issues of whether complainant was criminally assaulted and whether appellant was the assailant.² Trial proceeded. The jury rejected his insanity defense and found appellant guilty on all counts.

III

Appellant contends that the trial court abused its discretion in denying the motion to bifurcate the trial into separate phases on the merits and insanity. We disagree.

Bifurcation occurs when the court divides the trial into two parts: a trial on the merits, and a trial on the insanity defense. During the merits phase the government must bear its usual burden of proving that the defendant committed all the elements of the crime charged. The trial judge then "submit[s] to the jury issues raised by the not guilty plea." Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F.2d 281, 283 (1966). If the jury reaches a not guilty verdict, the insanity defense becomes moot. If, however, the jury returns a guilty verdict, the trial proceeds to the insanity phase.³

A defendant may be prejudiced by "the simultaneous trial on the pleas of insanity and `not guilty.'" Holmes, 124 U.S. App.D.C. at 153, 363 F.2d at 282. The bifurcation procedure serves to mitigate two types of prejudice that might occur in a unitary trial: "(1) prejudice to a defendant's insanity defense arising from the evidence on the merits, and (2) prejudice to a defendant's defense on the merits arising from the insanity evidence." Jackson v. United States, 404 A.2d 911, 925 (D.C. 1979). The burden is upon the defendant to demonstrate the need for a bifurcated trial, Higgins v. United States, 130 U.S. App.D.C. 331, 333, 401 F.2d 396, 398 (1968), by making a "substantial proffer both on the merits and the issue of responsibility." Kleinbart v. United States, 426 A.2d 343, 354 (D.C. 1981). When the defense on the merits is insubstantial or nonexistent, however, a unitary trial does not prejudice the defendant. When the defendant decides to forego an insubstantial defense on the merits, he or she does "not sacrific[e] anything of value." Contee v. United States, 133 U.S.App.D.C. 261, 263, 410 F.2d 249, 251 (1969); accord Harried v. United States, 128 U.S.App.D.C. 330, 333, 389 F.2d 281, 284 (1967).

The trial court has broad discretion in deciding whether to bifurcate a trial. Holmes, 124 U.S.App.D.C. at 154, 363 F.2d at 283. The presence of a substantial insanity defense does not, of itself, require bifurcation. See Harried, 128 U.S.App. D.C. at 333, 398 F.2d at 284 (broad discretion of trial judge to weigh substantiality of and prejudice to the defense on merits). Unless the defendant demonstrates a "substantial claim" for bifurcation, the trial court does not abuse its discretion by denying the motion. Jackson, 404 A.2d at 925. Of course, where the government presents relatively weak evidence on the merits, a failure to bifurcate will usually amount to an abuse of discretion. See United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970) (evidence of requisite corroboration "very `thin'", and court imposed insanity defense over defendant's objection; abuse of discretion to conduct unitary trial).

On the other hand, as the Circuit Court of Appeals observed in Harried, "[w]here there is no `defense' beyond putting the Government to its proof, we fail to see how there can be prejudice to the defense on the merits due to failure to bifurcate." 128 U.S.App.D.C. at 333, 389 F.2d at 284. We especially note the context of that statement—the appellant there "`staked all on the insanity defense'" and his testimony denying guilt substantially corroborated the prosecution's evidence of guilt. Accord Contee v. United States, 133 U.S. App.D.C. at 262-63, 410 F.2d at 250-51 (appellant in Harried had no substantial defense on the merits...