Nichols v. United States, 7361.

• Decision Date: 14 August 1975
• Docket Number: No. 7474.,No. 7361.,7361.,7474.
• Citation: 343 A.2d 336
• Parties: Benjamin I. NICHOLS, Appellant, v. UNITED STATES, Appellee. John H. WILSON, a/k/a John H. L. Wilson, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

343 A.2d 336

Benjamin I. NICHOLS, Appellant, v. UNITED STATES, Appellee.

John H. WILSON, a/k/a John H. L. Wilson, Appellant, v. UNITED STATES, Appellee.

No. 7361.

No. 7474.

District of Columbia Court of Appeals.

Argued April 10, 1974.

Decided August 14, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John H. Pickering, Washington, D. C., appointed by this court, for appellant Nichols. Douglas G. Thompson, Jr., and Daniel D. Polsby, Washington, D. C., also were on the briefs.

Gerald M. Kane, Washington, D. C., appointed by this court, for appellant Wilson.

Joel DuBoff, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Peter O. Mueller, Asst. U. S. Attys., were on the brief, for appellee.

Before GALLAGHER, YEAGLEY and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellants were found guilty by a jury of the felonies of second-degree burglary, D.C.Code 1973, § 22-1801(b), and the malicious destruction of property "of the value of $200 or more", D.C.Code 1973, § 22-403. Their principal contentions on appeal are (1) that the indictment did not properly charge the felony of malicious destruction of property since it used the term "damage" rather than "value"; (2) that the evidence did not prove that the value of the property involved was $200 or more; and (3) that evidence of the on-the-scene identifications should have been excluded for undue suggestivity.¹ We affirm.

I

On the night in question, intruders, using an ax, chopped a hole in the roof of the P-X Liquor Store at 502-19th Street, N. W. They lowered themselves into a rear storage area of the one-story building. They attempted to break through a door separating them from the front part of the store, which contained the cash register, the safe, and some of the store's more valuable inventory. Their efforts triggered a burglary alarm, and they fled.

Their flight was observed by several students from the windows of a George Washington University dormitory located adjacent to the parking lot of the liquor store. Two students testified. One of them, David Konick, said that he first noticed activity outside the liquor store around 9:30 p. m., roughly a half-hour before the alarm went off. As he watched from an eighth-floor hall window, Konick saw a large Negro male carry an object with a long handle from the liquor store to a car parked below the window. Konick "assumed he was a cleanup man." The man opened the car door and carefully placed the object inside. The car's interior light illuminated the driver and Konick noticed that he was wearing a blue uniform of the type worn by a gas station attendant or mechanic. Konick was not sure whether he saw a third person in the back seat at that time. He then went back to his room.

At about 10 p. m., Konick returned to the window. He had been gazing out for a few minutes when he heard the burglar alarm ring. He saw two men run from the liquor store. One was small; the other was a large man whom he recognized as the person he had noticed earlier. They got into the same car he had seen previously. He again noticed that the driver was wearing a blue uniform, and this time he definitely could see another person in the back seat. As the car drove away Konick observed that it had District of Columbia license plates, with the next-to-last digit being a "1" and the last being either a "1" or a "7". He identified the car as a late model green Thunderbird with a black vinyl roof. Konick telephoned the police, described the car, and reported that it was traveling south on 19th Street toward Constitution Avenue.

The police dispatcher broadcast a lookout for the car. Two or three minutes later, near Constitution Avenue and 12th Street, N.W., an officer stopped a late model green Thunderbird with a black vinyl top and D.C. tag number 906-817. Appellant Nichols was driving. Appellant Wilson was in the front passenger seat, and two juveniles were seated in the back. The officer then received radio notification that another witness (Michael Posner, a student who had watched with binoculars from the seventh floor of the dormitory) had read the car's license number as 806-817 — only one digit different from that on the stopped vehicle.

Appellants and their companions were placed in a patrol wagon and transported to the liquor store. At the scene, Wilson and the two juveniles were asked to stand outside the patrol wagon, while Nichols remained inside. Konick identified Wilson as the big man he had seen carrying an object to the Thunderbird around 9:30 p. m. and as the larger of the two men he later had seen running to the car after the alarm sounded. Konick then was asked to look inside the patrol wagon. He identified the blue uniform Nichols was wearing as being identical to that worn by the driver of the Thunderbird. Posner identified the Thunderbird as the vehicle he had seen leaving the parking lot after the alarm sounded.

Police officers found a shovel and a broken ax inside the rear storage area of the liquor store. The store manager testified at trial that those items did not belong to the store. The government introduced photographs of the liquor store's damaged roof and interior door, and the manager testified that repairing the damage caused by the burglars cost $425.

II

Appellants contend that the indictment did not charge them sufficiently with the felony of maliciously destroying property "of the value of $200 or more". D.C. Code 1973, § 22-403. We disagree.

The malicious injury count of the indictment was phrased as follows:

On or about October 26, 1972, within the District of Columbia, Benjamin I. Nichols and John H. Wilson, also known as John H. L. Wilson, maliciously did cause injury and destruction to certain property, that is, a store, property of William Pittleman, causing damage in excess of $200.00 to said store.

Appellants' argument rests on the fact that the indictment, by using the phrase "causing damage" instead of "of the value", failed to track § 22-403. The statute provides:

Whoever maliciously injures or breaks or destroys, or attempts to injure or break or destroy, by fire or otherwise, any public or private property, whether real or personal, not his own, of the value of $200 or more, shall be fined not more than $5,000 or shall be imprisoned for not more than ten years, or both, and if the value of the property be less than $200 shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

There are two basic criteria by which the sufficiency of an indictment is measured: (1) Whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and (2) whether the record adequately shows that the defendant may plead a former acquittal or conviction in the event any other proceedings are initiated against him later for a similar offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 8 L.Ed.2d 840 (1962); see Bush v. United States, D.C.App., 215 A.2d 853, 855 (1966).

If an indictment does not satisfy the protections set by those criteria, the accused may object to it by motion before trial. Super.Ct.Cr.R. 12(b) (2). If he does not do so, he waives his right to challenge the indictment on appeal unless it is so deficient as to be "totally lacking in the statement of an offense". Bush v. United States, supra at 855. If the indictment does state the elements of an offense, however, and merely lacks particularity, the failure to object in the trial court constitutes a waiver "and the defect is deemed cured by the verdict, unless some substantial prejudice is demonstrated." Ibid.; see D.C.Code 1973, § 11-721(e).

Appellants did not object to the indictment either before or during the trial. Our review, therefore, is limited to determining (1) whether the indictment states the elements of the felony of malicious destruction of property, and (2) if the elements are stated, whether any substantial prejudice resulted to appellants from the indictment's asserted flaw.

The felony of malicious destruction of property has four elements: (1) that the defendant injured or broke or destroyed, or attempted to injure or break or destroy, property; (2) that the property was not the defendant's; (3) that the defendant did so maliciously, that is, with intent to injure or break or destroy the property and for a bad or evil purpose, and not merely negligently or accidentally; and (4) that the property was of a value of $200 or more. Appellants claim that the fourth element was not charged.

This court has not previously defined the "value" element of § 22-403. Its significance is crucial, because the value of the property involved provides the sole distinction between a felony and a misdemeanor. The punishment and collateral consequences may differ substantially, depending on whether the value is $200 or less. Cf. Boone v. United States, D.C.App., 296 A. 2d 449, 450 (1972). See also Blackledge v. Perry, 417 U.S. 21, 28 n. 6, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The legislative history of § 22-403 is silent as to the meaning of the term "value".

We believe "value" should be analyzed by viewing § 22-403 as encompassing two principal types of situations: (1) Cases involving the destruction of an entire item of property, and (2) cases involving injury which falls short of total destruction:² We construe "value" in both types of cases as referring to the fair market value of the object or entity involved immediately before the crime occurs. The application of the fair market value concept differs, however, depending on whether injury or total destruction is involved.

Where an item of property has been entirely destroyed, there is little difficulty in applying the normal definition of "fair market value", i. e., the price which a purchaser who is willing but not obliged to buy would pay an owner who is willing but not obliged to sell,...