Parks v. United States, 80-466.

Citation451 A.2d 591
Decision Date14 September 1982
Docket NumberNo. 80-466.,No. 80-571.,No. 80-502.,80-466.,80-502.,80-571.
PartiesReginald PARKS, Appellant, v. UNITED STATES, Appellee. Frederick GREENE, Appellant, v. UNITED STATES, Appellee. Robert GRINNAGE, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Andrew L. Lipps, Washington, D.C., with whom William J. Mertens, Washington, D.C., was on the brief, both of the Public Defender Service, for appellant Greene.

Leroy Nesbitt, Washington, D.C., appointed by the court, for appellant Grinnage.

Sylvia Royce, Asst. U.S. Atty., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Wayne P. Williams, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Paul A. Lenzini, Washington, D.C., with whom Neal J. Tonken, Washington, D.C., was on the brief, both appointed by the court, for appellant Parks.

Before FERREN, PRYOR and BELSON, Associate Judges.

FERREN, Associate Judge:

A Superior Court grand jury indicted appellants Parks, Greene, and Grinnage on seven charges of murder and armed burglary, robbery, and assault arising out of the stabbings of two persons: the deceased, John Fulton, and the government's principal witness, Mary Bedney.1 Before trial, appellants moved to dismiss the indictment for lack of a speedy trial and to suppress identification testimony by Mary Bedney, as well as by a corroborative witness, Larry Grant. The court conducted an evidentiary hearing, then denied the suppression motions. The court took the speedy trial motions under advisement and, after appellants' convictions on all charges, denied the motions at a post-trial hearing.

These appeals accordingly present questions of reversible trial court error in (1) denying appellants' motions to dismiss the indictment for lack of a speedy trial; (2) permitting Larry Grant to identify appellant Greene at trial after failing to identify him at the pretrial suppression hearing; and (3) denying appellant Parks' motion to suppress identification testimony by Mary Bedney. Appellants also challenge the trial court's actions in (4) excluding evidence that another person, James Mills, may have had a motive to commit the murder; (5) sustaining Greene's "attorney work product" objection to evidence offered by Parks; and (6) denying appellants' motions for a mistrial based on the prosecutor's closing argument.

Finding no reversible error, we affirm all convictions.

A. Mary Bedney's Testimony

At the suppression hearing, Mary Bedney testified that on the afternoon of June 27, 1978, she went to 12th and U Streets, where she saw appellant Greene and the deceased, John Fulton, in a blue car which Fulton often drove. Bedney also saw the three appellants together near 12th and U later in the day. At about 11 P.M., Bedney accompanied Fulton to his apartment. Bedney often bought drugs from Fulton, both for her own use and for resale on the street; she bought Dilaudid from him that evening.2

Bedney was in the bathroom preparing to inject herself with Dilaudid when she heard a knock on the door. She untied her arm, went to the door, looked through the peephole, and recognized Greene. Calling to Fulton that "Ricky" Greene was at the door, she returned to the bathroom. As she was retying her arm, she looked up and saw Greene pointing a pistol at her. Through the open bathroom door, she saw "Reggie and Poo-Poo" (the names by which she knew Parks and Grinnage) in the bedroom, holding guns on Fulton. She heard them demand to know where money and drugs were hidden. Fulton told them, and appellants took money from underneath the mattress and drugs from the bathroom. They removed Bedney's clothing and bound her hands with tape. Bedney added, however, that she was not blindfolded.3 She lay on the floor, and when she turned to look at Fulton she saw appellants standing over him. She was ordered to turn back around, and she did.4 Bedney heard Fulton groaning, then heard Greene say "[M]an, she know me" and felt herself being stabbed in the neck.

Bedney did not lose consciousness. When she heard the apartment door slam, she stood up and wrapped herself as well as she could in the bedspread. As she made her way toward the door, Bedney saw a blondehaired, brown-skinned woman lying in the hallway of Fulton's apartment. Bedney stepped over her and left the apartment to seek help. (When the police arrived a few minutes later, no woman was lying in the hallway.)

Bedney knocked on the door of a nearby apartment, but the residents, frightened by the sight of the knife embedded in her throat, would not let her in. (They did, however, call the police.) Bedney walked out into the street. A cabdriver picked her up and took her to the hospital, where she underwent surgery to remove the knife from her throat.5

Soon after Bedney awoke on the morning of June 28, 1978, Metropolitan Police Detectives James Slawson and Francis McCloskey visited her in the hospital. They showed her a photo array, and she picked out a photo of Greene.6 (The police had received independent information which led them to include Greene's photo in the array.) On July 6, the detectives showed Bedney another photo array in which she identified Grinnage. She selected a photo of Parks from still another array on July 11.

Bedney attended a lineup on October 31, 1978. She identified Greene and Grinnage but not Parks.7 Immediately after the lineup, police took Bedney upstairs to the Homicide Office and showed her a photo array. She picked out Parks' photo. On a later occasion, police showed Bedney a photo of the October 31 lineup; she identified Parks, as well as Greene and Grinnage. She explained to police that she had been unsure about Parks at the lineup because he had trimmed his beard since she had last seen him.8

Finally, Bedney made in-court identifications of all three appellants at the suppression hearing.9

B. Larry Grant's Testimony

Larry Grant testified at the suppression hearing that he lived in John Fulton's apartment building. On June 27, 1978, he had been standing outside the building at about 11 P.M., waiting for his cousin to return his car. He saw three men come out of the alley across the street. They passed within an arm's length of Grant and entered the apartment building. Grant said that the first man was brown-skinned, had an oval hairline and a goatee, and was wearing dark clothing. The second was "fair-complected" with "a very odd color of eyes." He was wearing a red-striped sweater-shirt and was "fumbling with something around his waist" as he passed Grant. The third man was "dark-complected," "tall," and "muscular-built," with close-cut hair worn in a part. The men gave Grant "an eerie feeling," so he returned to his apartment and locked himself in. About fifteen minutes later he heard running footsteps on the stairs, but he stayed in his apartment until the police arrived. Grant testified that he did not then describe the three men to the police; he had been afraid to do so.

Grant stated that Douglas Wood, a Public Defender Service investigator, interviewed him in November 1978. Wood showed Grant a photo of the October 31, 1978 line-up and asked whether he could identify any of the men he had seen entering his apartment building on June 27. Grant testified that he had picked the men wearing Shields No. 3 (Grinnage), No. 5 (Greene), and No. 1 (Parks), but that "it was a toss-up" between No. 1 and No. 15. He added that Wood "snatched" the photo away before he could look carefully at Nos. 1 and 15.

Grant further testified that Wood returned within a week and again showed him the lineup photo. This time, Grant said, he selected Nos. 3, 5, and 15. Grant explained that, again, he felt he was given insufficient time to view the photo. On cross-examination, Grant admitted that he actually had picked No. 15 the first time he saw the photo and had not told Wood that No. 1 was "a maybe."

Grant also testified that Detective Slawson showed him the same lineup photo in November 1979, and that he had picked Nos. 3, 5, and 1. Grant said that the prosecutor showed him the lineup photo again in January 1980 and that, as before, he picked Nos. 3, 5, and 1.10

Grant made in-court identifications of Parks and Grinnage but identified a courtroom spectator, not Greene, as the third man he had seen the night of the murder.

C. Appellants' Motions

At the close of the hearing, appellants asked for suppression of all identifications by Bedney, alleging that the procedures used to obtain them were unduly suggestive. Appellants also contended that Grant's pretrial identifications should be suppressed, claiming they were inherently unreliable. In addition, Parks attacked on sixth amendment (right to counsel) grounds his identification by Bedney in the October 31, post-lineup photo array; and Greene moved to prohibit Grant from making an in-court identification at trial because Grant had failed to identify him at the hearing. The court denied all motions to suppress.

A. The Government's Case

The next day, at trial, Bedney, Grant, and Slawson repeated substantially the same testimony each had given at the pretrial hearing. (See notes 1, 3, 4, 8, 9, 10 supra.)11 Slawson also testified that after he and McCloskey had arrested Greene, read him his Miranda12 rights, and told him he was charged with the murder of John Fulton, they asked Greene whether he knew Fulton. Greene replied that he had been selling drugs for Fulton near 12th and U streets during the evening of June 27, 1978, when people told him that Fulton wanted to see him at Fulton's apartment. Greene said he "went up there." He made no further statements.13

The government presented a number of other witnesses: Gladys Martin...

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