McClain v. United States, 81-63.

• Decision Date: 04 April 1983
• Docket Number: No. 81-63.,Bo. 81-75.,81-63.
• Parties: Victor McCLAIN, Donald L. Edmonds, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

460 A.2d 562

Victor McCLAIN, Donald L. Edmonds, Appellants, v. UNITED STATES, Appellee.

No. 81-63.

Bo. 81-75.

District of Columbia Court of Appeals.

Argued January 12, 1983.

Decided April 4, 1983.

COPYRIGHT MATERIAL OMITTED

Paul Regan, Washington, D.C., appointed by this court, for appellant McClain.

Sebastian K.D. Graber, Alexandria, Va., appointed by this court, for appellant Edmonds.

John R. Fisher, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, and Donald J. Allison, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before KERN, NEBEKER and BELSON, Associate Judges.

KERN, Associate Judge:

Appellants were convicted after a jury trial, of armed robbery, D.C.Code §§ 22-2901, -3202 (1981). Appellant Edmonds challenges the admission of certain identification evidence at trial, and the sufficiency of the evidence to sustain the verdict against him. Both appellants contend that reversal is compelled by numerous other erroneous and prejudicial rulings and remarks made by the trial judge. Finding no error, we affirm the convictions.

I

Two gunmen, accompanied by a third person who was never identified or taken into custody, robbed the Shipley Market in southeast Washington of some $10,000 on an August evening in 1979. The prosecution presented three principal witnesses at the trial in October 1980 to prove that appellants were the culprits: the owner of the Market, a security guard for the Market and the director of security for the shopping center in which the Market is located.

The owner testified that, on the evening in question, a person whom he recognized (and whom he had seen in the Market earlier that same day) came to his cash register and ordered him at gunpoint to lie on the floor while he (the robber) cleared it of cash. (Supp. Record at 111-13.) His assailant then followed him to the Market office and removed additional cash from the store safe. (Supp. Record at 113.) The owner was able to identify appellant McClain in open court as his assailant and further testified that he had previously selected McClain, from an array of photographs and at a lineup, as the man who had robbed him. (Supp. Record at 114-17.)

The Market's security guard described in his testimony how another person had approached him, pointed a pistol at him, and ordered him to lie on the floor. (Supp. Record at 141-42.) This second witness made no incourt identification of appellant Edmonds as the robber who had held a pistol on him, but he did recount from the witness stand how he had identified his assailant after the robbery from an array of color slides and at a lineup. (Supp. Record at 146-48.) Other evidence was presented which established that the particular man identified by the security guard was appellant Edmonds. (Supp. Record at 212-13, 215-16.)

The third and last eyewitness to the robbery, the director of security for the shopping center (who was the Market security guard's supervisor), testified that he entered the store while the robbery was in progress, and immediately confronted the gunman who was holding the security guard at bay with a pistol. (Supp. Record at 170-71.) He began grappling with the gunman, but at that point the other gunman who had been clearing out the store safe came running towards the doorway where he stood. (Supp. Record at 171-72.) A struggle ensued with the second gunman, during which the witness managed to dislodge some of the stolen money and the pistol from this robber. (Supp. Record at 173.) The witness later identified appellant McClain, at a lineup, as the second man with whom he had struggled; and he identified appellant Edmonds, from a slide array, as the person he had initially confronted upon entering the store. (Supp. Record at 175-77.) The witness also testified that he had encountered both men earlier that evening — shortly before the robbery — exiting a restaurant elsewhere in the shopping center. (Supp. Record at 169, 175.)

Prior to the trial, both appellants filed motions to suppress the identification evidence, and their motions were denied. At the close of the government's case, appellants both moved for a judgment of acquittal, and those motions were likewise denied. (Supp. Record at 237.) Both appellants then presented testimony of alibi witnesses. After trial, appellant Edmonds moved for a judgment notwithstanding the verdict based on the insufficiency of the evidence, which also was denied. (Record at 57, Supp. Record II at 3, Appellant Edmonds' Brief at 2.)

II.

Appellant Edmonds' first assertion on appeal is that the trial court erred in denying his motion to suppress the identification testimony because it was the fruit of unnecessarily suggestive procedures and was unreliable.¹ Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Upon reviewing the record,² we are not persuaded that the identification procedures followed by the police were impermissibly suggestive or so unreliable as to violate appellant's due process rights.

When the trial judge ruled that there was no suggestivity that would affect the identification (Supp. Record at 99), he indicated that he had looked at the photographs of the slide array and the lineup. All of the individuals depicted in the slide array were black males of roughly the same age, height, and build. Several of them had facial hair, including at least one other than appellant who appeared to have a beard. Although appellant's complexion was the darkest, several others were fairly darkcomplected. Nothing in the slide array would have directed a witness' attention to any particular individual. Accordingly, we find no basis for appellant's contention that the court erred in its judgment that the slide array was not suggestive.

Likewise, all of the individuals depicted in the photograph of the lineup at which the security guard identified appellant Edmonds were black males of approximately the same age, height, and build. Several of them were dark-complected; one other, standing next to appellant, had a full beard. Others had some facial hair. Since an even number of persons were used in the lineup, appellant's position as fifth in the line placed him near the center, but not directly centered, so the witness probably would not have focused on him any more closely than the others. However, appellant's clothing may have singled him out from the rest of the lineup. All of the participants in the lineup wore casual clothes. Several wore denim jeans. But we note that appellant was the only participant wearing a buttoned shirt, rather than a pullover sweater or zippered knit shirt. More importantly, appellant may have been attired completely in prison-issue blue, unlike any other person in the lineup.³ Thus, it is at least arguable that the trial court erred in holding that there was no suggestivity in the lineup.

Nevertheless, even if the lineup contained an element of suggestivity because of appellant's clothing,⁴ the trial judge properly admitted the identification testimony based on the lineup because it was reliable, given the totality of circumstances. See Jennings v. United States, 431 A.2d 552, 558 (D.C. 1981); Cf. Patterson v. United States, 384 A.2d 663, 666-67 (D.C.1978). At the pretrial suppression hearing, there was testimony from the witness showing that he had focused his attention on his assailant and had ample opportunity to view him.⁵ Although the witness' initial description of his assailant was very general, there was no indication of any later variance from that description. Nor was there any evidence at the suppression hearing that the witness was ever uncertain about the identification. He stated that he had made the identification based not only on facial hair, but also on facial structure, facial expression, and body size. (Supp. Record at 44.) Although the lineup was held some four months after the robbery, there was no evidence that the identification was not based upon the witness' recollection of the robbery. The witness had seen a photo array, a slide array, and two lineups, and had made positive identification only from the slide array and the second lineup. There was no evidence that the witness had failed to recognize appellant at either the photo array or the first lineup; and there was no evidence that the witness had ever identified anyone else as his assailant. Under these circumstances, the security guard's identification testimony was sufficiently reliable to be admitted as evidence.

III.

We are also constrained upon a review of the record at trial to affirm the judge's refusal to grant the motion for judgment of acquittal by appellant Edmonds.

In considering the claim of insufficient evidence, we must view the evidence in the light most favorable to the government, mindful of the jury's right to determine credibility, weigh the evidence, and draw justifiable inferences of fact. Raymond v. United States, 396 A.2d 975, 978 (D.C.1979); Curley v. United States, 81 U.S. App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). The test for reversal is whether there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Cunningham v. United States, 408 A.2d 1240, 1242 (D.C. 1979); see Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967). The standard is the same with respect to identification testimony as with other types of evidence, Blango v. United States, 373 A.2d 885, 887 (D.C.1977), although our review of a conviction based solely upon eyewitness identification testimony necessarily involves a close scrutiny of the circumstances surrounding the identifications.

There were two witnesses in this case linking appellant Edmonds to the robbery; and one of them had positively identified appellant on two occasions. However...