Paris v. United States

• Citation: 515 A.2d 199
• Decision Date: 22 September 1986
• Docket Number: No. 85-272.,No. 84-1460.,84-1460.,85-272.
• Parties: James E. PARIS, Appellant, v. UNITED STATES, Appellee. Tyrone A. DRIVER, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

515 A.2d 199

James E. PARIS, Appellant, v. UNITED STATES, Appellee.

Tyrone A. DRIVER, Appellant, v. UNITED STATES, Appellee.

No. 84-1460.

No. 85-272.

District of Columbia Court of Appeals.

Submitted June 11, 1986.

Decided September 22, 1986.

COPYRIGHT MATERIAL OMITTED

Steven H. Goldblatt, Supervising Atty., Lesley Fair, Appellate Law Fellow, and Robert Potter, Law Student Counsel, were on brief for appellant Paris.

Patricia Stewart, Fairfax, Va., appointed by this court, was on brief for appellant Driver.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., Daniel M. Cisin, and Daniel S. Seikaly, Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Before MACK and TERRY, Associate Judges, and REILLY, Senior Judge.

TERRY, Associate Judge:

Both appellants were convicted of armed robbery,¹ assault with intent to commit robbery while armed,² and assault with intent to kill while armed;³ appellant Driver was also convicted of carrying a pistol without a license.⁴ On appeal they present three arguments for reversal. First, they maintain that the evidence was insufficient to sustain their convictions of armed robbery and assault with intent to commit robbery while armed because there was no direct evidence that either of them was armed during the commission of the robbery. Second, appellants contend that the trial court erred in admitting hearsay evidence of a witness' extra-judicial identifications. Third, appellant Driver asserts that the trial court erred in failing to exclude, sua sponte, certain allegedly suggestive and unreliable identification evidence against him. We reject all three arguments and affirm the convictions.

I

On August 27, 1982, two Metropolitan Police officers, Frederick Panzo and Brian Bender, were assigned to stake-out duty at the Fort Carroll Market, a small neighborhood grocery store in Southeast Washington. Their hidden observation post in the rear of the store was so small that it could accommodate only one officer at a time, who would watch the public area of the store through a small opening in the wall. At about 6:30 p.m., while Officer Panzo was taking his turn in the observation post, a robbery occurred.

Charles Wilcox, a store employee, was working behind the meat counter when a man approached him and asked for two lottery tickets.⁵ A second man came up and purchased another ticket, then stepped back from the counter and scratched the ticket to see if he had a winning number.⁶ A moment later, Boley Zywusko, the owner of the store, was standing near the entrance when he felt an "extremely hard" object thrust into his ribs. Mr. Zywusko was told by the man holding this object not to turn around, and to proceed to the rear of the store. He obeyed, but raised his hands in the air, thereby giving a pre-arranged signal to the stake-out officers and Mr. Wilcox that a robbery was in progress. When Mr. Zywusko reached the back of the store, he turned and faced his assailant, whom Mr. Wilcox meanwhile had recognized as the same man who had just purchased two lottery tickets.

By this time the second man had moved around the meat counter. As he passed behind Mr. Wilcox, he said, "Don't move, just stand still." He then grabbed the coffee can and a purse belonging to another employee, Fern Brown, which had been in a drawer behind the counter. The two men ran out the front door and fled toward a nearby alley, with the two police officers in hot pursuit. As they ran, both officers identified themselves and ordered the two men to stop. But they did not stop; instead, they entered a red car which was parked in the alley, and one of them pointed a large revolver out the window and fired it at Officer Panzo. Both officers returned the fire as the car sped off. At the end of the alley the car crashed into another car, and its two occupants jumped out and escaped on foot.

Although the officers were unable to catch the fleeing robbers, they did recover the coffee can and Mrs. Brown's purse from the wrecked car. The coffee can contained $39 in cash, including some change. Also recovered from the back seat of the car were a brown knapsack and a jacket. The knapsack contained an address book and numerous papers bearing the name of appellant Driver. Meanwhile, a bystander (unidentified in the record) found a revolver in the alley along the route which the red car had traveled. He picked it up by inserting a wrench through the trigger guard and brought it over to the officers. This gun was later test-fired and found to be operable.

The ensuing police investigation yielded two additional eyewitnesses, Vincent Branch and Preston Hamlet. Mr. Branch had just parked his car in the alley near the grocery store and was on his way to pick up his girl friend, who lived in a nearby apartment. Standing beneath her second-floor window, he had just called to her to find out if she was ready to leave when suddenly he saw two men run into the alley, one of them carrying a can with some change in it. Both men jumped into a red Granada that was parked in the alley, one telling the other to get into the back seat. Branch then saw two police officers run into the alley with their guns drawn, ordering the other men to stop. Almost immediately there was an exchange of gunfire,⁷ and Branch dropped to the ground and crawled behind a brick wall to avoid being hit by a stray bullet. The red car started to move, but it did not get very far; "they drove it . . . down the alley, swerved and hit a trash can, and that was it." The men in the car, Branch testified, "took off . . . [and] went around the bend."

Preston Hamlet, who lived a short distance from the Fort Carroll Market, heard gunshots and then the sound of a crash coming from the alley. When he went to his front door and looked out toward the alley, he saw that one car had crashed into the rear of another car. The first car had some bullet holes in it, and both the windshield and the rear window were damaged. Steam was coming from the wreckage. Mr. Hamlet then saw a man running toward him from the damaged car. The man passed within fifteen feet of Mr. Hamlet before running between his house and that of his neighbor.

The next day, August 28, Detective Renager Lee of the Robbery Branch assembled an array of nine black and white photographs. One of them was a picture of appellant Driver, whose name had been found on some of the papers in the knapsack. Lee showed this array to Mr. Hamlet, who picked out Driver's photograph as depicting the man who had run past his house.⁸ Hamlet thought he could be more certain, however, if he saw color photographs. Accordingly, on September 3 he was shown ten color slides at police headquarters. From these slides Hamlet again selected Driver. Finally, at a lineup held on September 14, Hamlet identified Driver after first stating that he was "not sure" whether he could identify anyone from the lineup.⁹

Detective Lee also showed the black and white array to Vincent Branch on September 3. Lee testified that Branch selected Driver's photograph as depicting the man carrying the can with the change in it. About two weeks later, having learned through a check of the license number that the red car was registered to appellant Paris, Detective Lee showed Mr. Branch a group of color photographs which included one of Paris. Branch selected Paris' picture and said that it looked like the driver of the car. Finally, Branch identified both Driver and Paris from separate lineup photographs.¹⁰

Mr. Wilcox, the robbery victim, identified a picture of appellant Paris from a photographic array as the one most closely resembling the robber. He also identified Paris from a lineup photograph. Mr. Zywusko could not make an in-court identification of either appellant, but he did tentatively identify Paris from a photograph prior to trial.

Both appellants presented alibi defenses, but to no avail. The jury found them guilty on all counts, except that Paris was acquitted of the charge of carrying a pistol without a license.

II

Appellants contend that the counts charging them with armed robbery and armed assault with intent to commit robbery should not have gone to the jury because there was no direct evidence that they were armed at any time while they were in the store. In reviewing challenges to the sufficiency of the evidence, however, "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." McClain v. United States, 460 A.2d 562, 567 (D.C.1983) (citations omitted). There is no legal distinction between direct and circumstantial evidence, Hall v. United States, 454 A.2d 314, 317 (D.C.1982), and reversal is warranted "only where there is no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt." Head v. United States, 451 A.2d 615, 622 (D.C.1982) (citations omitted); see also Murchison v. United States, 486 A.2d 77, 81 (D.C.1984). Tested by these standards, appellant's claim of evidentiary insufficiency is clearly without merit.

Although no one actually saw a weapon during the commission of the robbery, the evidence was clearly sufficient to permit the jury to infer that appellant Driver, at least, was armed. Paris was the one whom Mr. Wilcox identified as the actual robber, which meant that Driver was the one who came up behind Mr. Zywusko and thrust an "extremely hard" object into his ribs. Driver told Mr. Zywusko not to turn around and ordered him to move to the rear of the store. Officer Panzo noticed that both appellants entered the store in zipped-up jackets on a warm August evening, and Mr. Wilcox observed that Zywusko's assailant (Driver) kept his right hand in his jacket pocket as he marched Zywusko to the rear of the store. Immediately after the robbery, the officers chased both appellants into the alley, where they got into a parked car. One...