March v. United States, 8850.

• Citation: 362 A.2d 691
• Decision Date: 14 July 1976
• Docket Number: No. 8850.,8850.
• Parties: Vincent A. MARCH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

362 A.2d 691

Vincent A. MARCH, Appellant, v. UNITED STATES, Appellee.

No. 8850.

District of Columbia Court of Appeals.

Argued February 5, 1976.

Decided July 14, 1976.

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Richard S. Greenlee, Washington, D. C., appointed by the court, for appellant. Frederick H. Weisberg, Washington, D. C., appointed by the court, also entered an appearance for appellant.

John L. Kern, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Stuart M. Gerson, and Martin J. Linsky, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before REILLY, Chief Judge, and HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant was charged with single counts of sodomy and assault with intent to commit rape. D.C.Code 1973, §§ 22-3502 and 22-501. A jury found him guilty of both offenses. He challenges those convictions on several evidentiary grounds arising generally from his defense of misidentification. We affirm.

I

The case stems from events which transpired on October 29-31, 1973, within a narrow area of the George Washington University campus. During that 48-hour period, three women students were subjected to separate sexual assaults. The testimony of the victims and several other witnesses reveals that shortly after 8:00 p. m. on Monday, October 29, appellant approached Denise Mindlin Schattman in the hallway of her apartment building and exposed his penis. Immediately following this incident, he was observed strolling across the street in front of the building by Schattman, her roommate, Patricia Schub (who had seen appellant's back as he fled the hallway), and their resident manager, Nancy Lee Uhaize (who had been notified of the incident by Schattman and Schub). Some minutes later, appellant was seen entering an alley behind a woman whose description matched that of the ultimate complainant (whose name need not be used in this opinion). She testified that at approximately 8:30 p. m., as she passed through that alley on the way to the drug store, appellant put his arm around her and exposed his penis. She returned from the store by a different route, but again was accosted by appellant. He choked her and made clear his intention to rape her. Apparently dissuaded from rape by his discovery that she was menstruating, he forced her to perform fellatio.

Detective Oliff of the Metropolitan Police Department responded to both complaints. He first interviewed the complainant at the University security office, where he took some notes on a 3 x 5-inch card and had a broadcast made of the assailant's general description. The officer then interviewed the women at the apartment building.

On Wednesday, October 31, at approximately 6:30 p. m., appellant followed Schub (who had seen him on Monday evening) into her apartment building and reached up her dress. He then fled out the door, by chance past Detectives Oliff and Orman who were arriving to show the women a selection of photographs of possible suspects in the Monday assault on Mrs. Schattman. Shortly thereafter, appellant was apprehended and returned to the apartment building. In overlapping confrontations he was identified positively by Schattman, Schub, and Uhaize. As he was being taken from the building to an unmarked police cruiser, complainant, who happened to be passing by, immediately recognized appellant and positively identified him as her assailant.

Only the sodomitic attack was charged. Appellant's theory of defense was misidentification. At an extensive pretrial hearing, appellant's trial counsel made unsuccessful motions for the production of both the 3 x 5 card on which Detective Oliff had made his initial notes and the array of photographs which the officers had shown to Schattman, Schub, and Uhaize.¹ Although the government was unable to produce either the card or the array, the court declined to impose any evidentiary sanction. The court also refused to exclude certain photographs of the scene of the crime, although it was acknowledged that several of them did not reflect actual lighting conditions at the time of the assault. However, out of an abundance of caution, the court ruled that the Wednesday confrontations between appellant and Schattman, Schub, and Uhaize had been impermissibly suggestive, and agreed that any testimony as to the uncharged assaults would be prejudicial. The court therefore placed certain limitations on the scope of both the direct testimony and the cross-examination of the prosecution's witnesses. At the conclusion of the trial, after two hours of deliberation, the jury returned verdicts of guilty on both charges.

Appellant now challenges (1) the limitations placed on his cross-examination of the government's witnesses as a denial of his Sixth Amendment right to confrontation; (2) the refusal to impose any sanction for the nonproduction of the detective's notes and the array of mugshots as violative of the principles of the Jencks Act, 18 U.S. C. § 3500 (1970), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) the admission of the photographs of the scene as a prejudicial abuse of discretion. We find no merit in these contentions.

II

Appellant's first argument is that the trial court improperly restricted his cross-examination of several of the government's witnesses.² He asserts that the court's rulings limiting inquiry into the events of Wednesday evening effectively precluded his attempts to impeach the identification testimony of those witnesses, and thereby erroneously impinged on his right to cross-examination.³ See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Alford v. United States, 282 U. S. 687, 691, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Howard v. United States, 128 U. S.App.D.C. 336, 341, 389 F.2d 287, 292 (1967). We disagree.

The challenged limitations on the witnesses' testimony were imposed by the court in response to appellant's own pretrial motions.⁴ Appellant nevertheless now asserts that those rulings forced him to choose between abandoning his claim that Uhaize's in-court identification was based on an unduly suggestive confrontation, and waiving his opportunity to cross-examine the witness as to the circumstances of the pretrial identification. Neither his characterization of the effect of the court's rulings nor his claim of prejudice finds support in the record.

Defense counsel could and did freely cross-examine Uhaize concerning her in-court identification of appellant. That identification was made, consistent with the trial court's ruling, on the basis of the witness' Monday observations, which were independent of the Wednesday encounter. See United States v. Wade, 388 U.S. 218, 239-43, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The record reveals both a reasonable opportunity to test Uhaize's in-court identification, and sufficient inquiry into the matter to provide the trier with "a satisfactory basis for evaluating the truth." Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed. 213 (1970); see Hyman v. United States, D.C.App., 342 A.2d 43, 44 (1975).

Moreover, the court did not prevent appellant from exploring the asserted inconsistencies in the statements made by the witnesses at the time of the showups. The court simply concluded that if appellant chose to explore the statements made during the Wednesday encounter between appellant and the witnesses at the apartment building, the entire transaction would be open to inquiry; that is, appellant would not be permitted to pick and choose among the facts of the Wednesday confrontation. Cf. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed. 347 (1974); Hood v. United States, 125 U.S.App.D.C. 16, 18-19, 365 F.2d 949, 951-52 (1966); Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 371 (9th Cir. 1951). Such a ruling was within the authority of the trial court. See Alford v. United States, supra, at 694, 51 S.Ct. 218; Best v. United States, D.C. App., 328 A.2d 378, 381 (1974); Howard v. United States, supra, 128 U.S.App.D.C. at 341, 389 F.2d at 292. For obvious tactical reasons defense counsel chose to avoid the potentially prejudicial transaction. As the dimensions of his cross-examination thus were essentially of his own making, appellant cannot now be heard to complain that that opportunity was inadequate. Cf. Clemons v. United States, 133 U.S.App.D. C. 27, 34, 408 F.2d 1230, 1237 (1968), cert denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L. Ed.2d 567 (1969); Smith v. State, 6 Md. App. 59, 250 A.2d 285, 292 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1402, 25 L.Ed. 2d 674 (1970).

Finally, appellant has failed to demonstrate the prejudicial impact of the disputed rulings See Harris v. United States, 367 F.2d 633, 636 (1st Cir. 1966). Regardless of Uhaize's testimony, the identification of appellant by the complainant was positive, detailed, and unimpeached. The disputed identification therefore was not critical to appellant's conviction. See Best v. United States, supra, at 383. Compare Davis v. Alaska, supra, at 319, 94 S.Ct. 1105; Dutton v. Evans, supra, at 87-88, 91 S.Ct. 210; Douglas v. Alabama, 380 U.S. 415, 419-20, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Even were we persuaded that the partial limitation on cross-examination was error, we would have no doubt that absent the court's rulings the outcome of the adjudication would have been the same. See Best v. United States, supra, at 382-83; see also Hampton v. United States, D.C. App., 318 A.2d 598 (1974); United States v. Pugh, 141 U.S.App.D.C. 68, 71-72, 436 F.2d 222, 225-26 (1970).

III

Appellant's second argument is that the trial court erred in refusing to strike the testimony of both the complainant and Detective Oliff as a sanction for the government's inability to produce the 3 x 5 card upon which the officer had made notes during his initial interviews with the complainant and several other...