Morris v. United States

• Decision Date: 21 July 1978
• Docket Number: No. 12259.,12259.
• Citation: 389 A.2d 1346
• Parties: John M. MORRIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

389 A.2d 1346

John M. MORRIS, Appellant, v. UNITED STATES, Appellee.

No. 12259.

District of Columbia Court of Appeals.

Argued February 15, 1978.

Decided July 21, 1978.

Robert P. Mosteller, Public Defender Service, Washington, D. C., for appellant.

Jeffrey Blumenfeld, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael W. Farrell, and Alexia Morrison, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

NEWMAN, Chief Judge.

Convicted by a jury of armed robbery and possession of a prohibited weapon (sawed-off shotgun), appellant challenges the admission of testimony concerning the description of the robbers given by the complainant to police officers immediately after the robbery. Appellant also argues that the trial court abused its discretion in refusing to permit cross-examination of appellant's girlfriend as to his actual use of her father's car on the day of the incident. We affirm.¹

In the early afternoon of August 4, 1976, Daryl Covington was robbed by two men, one of whom was armed with a sawed-off shotgun. During the course of the robbery, Covington, along with Kenneth E. Bryant, had the opportunity to observe both robbers. During the robbery, one of the robbers fired the shotgun at Covington. As the robbers fled, Covington noted that their getaway car was a beige 1975 or 1976 Chevrolet Nova or Pontiac Ventura (both of which were of a similar body design) with District of Columbia license plates, the first three numbers of which were either 2-7-0 or 2-0-7. Covington pursued the robbers. After failing to catch them, he flagged down Metropolitan Police Department (MDP) Officer Lester Howard who was in a police car cruising on Alabama Avenue, S. E. He gave Officer Howard a description of both the getaway car and the robbers.

Working from Covington's description of the car, MPD Detective James Colbert obtained a computer printout listing eleven 1975 and 1976 Novas carrying the appropriate first three license plate numbers. Of those eleven, only one was beige, the color of the getaway car as described by Covington. That car was registered to Edward Brantley, but was used by Brantley's daughter, Gwenievere Etienne. Subsequent investigation disclosed that Etienne's boyfriend, appellant John M. Morris, matched the description supplied by Covington of one of the robbers. Covington later selected appellant from a photo array, identified him in a lineup, and identified him in court as one of the persons who robbed him at gunpoint.

At trial, and over the objection of defense counsel, Covington repeated the description of the robbers which he had provided to the police immediately following the robbery:

Tall, slender build, thin features, and wore glasses . . .. Approximately six-one, maybe six-two . . .. Light, brown skin . . .. His face features were real thin, reminded me of someone who had been sick maybe . . because . . . his face features were sort of sunken somewhat. . . . His glasses were thick, . . . tinted lenses; frames I think were brown.

During cross-examination, Covington was questioned extensively concerning his description of the assailants. Defense counsel explored alleged inconsistencies between his description testimony given to the grand jury and the description he had testified to during direct examination.

Over objection, Covington's description of the robbers was also recounted to the jury by Officer Howard. To refresh his recollection of Covington's description, Officer Howard perused a transcript of the description which he had transmitted for broadcast over police radios immediately after the incident, as well as the MPD Form 251 which he had used to record Covington's report of the incident. On cross-examination, defense counsel thoroughly probed for inconsistencies between Covington's initial description, as recounted by Howard, and his later descriptions.

Covington's description was repeated, again over objection, by Detective John Love. Following Love's testimony, the trial court sua sponte gave a cautionary instruction:

There have been recitations here, if you believe them, about certain statements made by the complaining witness in this case to the officer. The fact that they are given to the officer obviously don't make them true or untrue in the case. You've got to determine on their truth from the time that you heard the witness' testimony from the stand itself. These statements are admitted here only as they may or in your judgment may not affect the credibility of the original witness to the case. Because the testimony of a witness may be rehabilitated or supporting that he previously made statements which are consistent with his present testimony in court and this is the only reason for which these are admitted, not for the truth of the statements themselves.

The government's final witness was Gwenievere Etienne. On direct examination, she testified that her father was Mr. Edward Brantley, that during August 1976 she used a beige 1975 Nova, and that she was appellant John Morris' girlfriend. Defense counsel sought to cross-examine Etienne as to whether Morris did in fact have access to, or the use of, her automobile on August 4, 1976, the day of the robbery. The trial court refused to permit this line of cross-examination, concluding that the requested line of cross-examination exceeded the scope of direct examination: "This isn't a broad or British cross-examination jurisdiction. We still do abide by the rule that the scope of the direct is the measure of the cross."

Appellant called Etienne as a defense witness. She testified that during August 1976, she and appellant lived together. She stated that she then owned a beige 1975 Nova, but that Morris was not permitted to use the car.

Etienne also provided testimony which was consistent with appellant's alibi defense. She stated that on the day of the robbery, she drove her car to work, returned home at about 11:30 a. m., picked up Morris, drove with him to perform various errands, and dropped him off at the apartment at about 12:45 p. m. whereupon she immediately returned in her car to work. On cross-examination, Etienne was impeached with three prior inconsistent statements she had made to the grand jury: (1) before the grand jury, she stated that she remembered August 4 because it was a payday, but at trial she testified that she received no paycheck that day; (2) in her trial testimony, she identified a different bank as the bank to which she went with Morris on the day of the robbery; (3) before the grand jury she stated that her brothers had used her car and gone somewhere with Morris on perhaps one occasion only, but at trial she testified that this had never occurred.

At the conclusion of the defense evidence, the case was submitted to the jury which returned a verdict of guilty. This appeal followed.

The first issue presented by appellant in this court concerns the admission of Covington's description of his assailant which he provided to the police immediately following the robbery. Appellant argues that the testimony of Covington, Officer Howard, and Detective Love recounting Covington's description was inadmissible as both hearsay and a prior consistent statement and that he was prejudiced by its admission. The government contends that the rationale of the line of cases validating the admission of out-of-court identifications, e. g., Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), likewise supports admissibility of the out-of-court description of the culprit given by the victim of a crime to police authorities.

"Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." C. McCormick on Evidence § 246 at 584 (2d ed. 1972). Pursuant to Anglo-American legal tradition, hearsay evidence was historically excluded at trial because it failed to satisfy one or more of the three primary prerequisites to the admissibility of testimony: oath, the personal presence of the declarant at trial, and the availability of the declarant for cross-examination so as to test both his credibility and the accuracy of his statement. C. McCormick, supra § 245 n.25, citing Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484 (1937). Today, this third factor — "the lack of opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is reported by the witness" — is considered the major justification for the exclusion of hearsay evidence. Id. See also Fed.R.Evid. 801, Advisory Committee Notes.

As with any rule, that concerning hearsay is replete with exceptions. Thus, where the circumstances surrounding the out-of-court statement satisfy a requisite level of reliability and trustworthiness, the testimony is admitted despite the fact that it otherwise falls within the definition of excludable hearsay.

One such exception permits the admission of extra-judicial identification made prior to trial through testimony at trial of either the identifier or third parties present at the prior identification. Such identification testimony is admitted for the purpose of corroborating the witness' in-court identification.² Thus, in Mack v. United States, D.C.Mun.App., 150 A.2d 477 (1959), the court permitted, for the purpose of corroboration, testimony by the victim of a robbery as to his identification of the accused made at the police station, in the presence of the accused, shortly after the incident. The court noted with approval Wigmore's rationale for the admission of extrajudicial prior identification testimony as...