Patterson v. United States

• Decision Date: 16 February 2012
• Docket Number: Nos. 08–CF–876,10–CO–1611.,s. 08–CF–876
• Citation: 37 A.3d 230
• Parties: Marcus PATTERSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

37 A.3d 230

Marcus PATTERSON, Appellant,

v.UNITED STATES, Appellee.

Nos. 08–CF–876

10–CO–1611.

District of Columbia Court of Appeals.

Argued Sept. 13, 2011.Decided Feb. 16, 2012.

Dennis M. Hart, appointed by the court, for appellant.

Elizabeth H. Danello, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III and Sherri L. Berthrong, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

NEBEKER, Senior Judge:

After a three-day trial, the jury found appellant guilty of armed robbery ¹ and possession of a firearm during a crime of violence ² (“PFCV”).³ The trial court sentenced appellant to 108 months followed by five years of supervised release for each crime, to be served concurrently. This court consolidated appellant's direct appeal and his appeal from the trial court's denial of his § 23–110/new trial motion. Appellant argues on direct appeal that the trial court erred by (1) refusing to allow appellant to present an expert witness on the subject of identification testimony, (2) failing during trial to conduct an appropriate inquiry into appellant's dissatisfaction with defense counsel's conduct, and (3) failing to correct the government's assertedly impermissible closing argument that appellant's defense was “malarkey” and “garbage,” sua sponte. Appellant also contends that the trial court erred in denying his § 23–110 motion without a hearing on appellant's allegation of ineffective assistance of counsel based on his attorney's failure to present evidence regarding his hand tattoo and failing to investigate another suspect's claim of guilt of the crime.⁴ We disagree and affirm.

I.

At approximately 6:30 PM on April 11, 2007, near 31st Street and Avon Lane, a man, whose face was unobstructed, approached the victim, Mira Kuczynska, within three to four feet. The man mumbled what sounded like “this is a robbery,” and he displayed a “western-style” revolver with a brown and dark yellow handle in his waistband. After approximately ten seconds, the man grabbed her purse and then ran off. Her purse contained, among other things, her wallet, credit cards, identification, a checkbook, and mobile phones.

After the incident, Ms. Kuczynska described the man to police as an African–American male in his late twenties or thirties who was about six feet tall, ⁵ thin-figured, with a medium skin complexion, and short hair with some facial hair. Shortly thereafter when police stopped a person for Ms. Kuczynska to perform a show-up identification, she stated that the person the police presented to her was not the one who robbed her.

After the robbery a number of significant events occurred. Approximately twenty minutes after the robbery, Monica Barnes, a person that appellant, while being interviewed by police, characterized as his girlfriend, placed a phone call using Ms. Kuczynska's cellular telephone. A Giant store video surveillance revealed that on April 14th, 2007, Monica Barnes alighted from a silver minivan in a Giant food store parking lot in Laurel, Maryland, entered the store, and used an altered check belonging to Ms. Kuczynska to purchase gift cards. Approximately twenty minutes later, appellant, wearing a multi-colored sweater-jacket, returned to the same cashier to purchase a large amount of gift cards with another one of Ms. Kuczynska's altered checks, but the store detective refused to accept the check and escorted appellant out of the store. Appellant entered a silver minivan in the parking lot and drove off with Monica Barnes. On April 19, 2007, Anthony Gain, accompanied by his girlfriend and appellant, returned a silver Dodge Caravan minivan to Progressive Rent–a–Car that he had rented three days earlier. The three were arrested by Laurel police. Assisted by D.C. Metropolitan Police Department (“MPD”) detectives, Laurel police interviewed appellant, who provided information leading to a Motel 6 location in Laurel.

Police obtained a search warrant to search the Motel 6 room. When they arrived at the motel, its guest registry reflected that the motel management had rented a room to Ms. Kuczynska.⁶ MPD Detectives Michael Ross and Keith Tabron went to the room and after knocking on the door and announcing their presence and purpose, Monica Barnes opened the door. One Jarwon Scott was inside.⁷ In the room police recovered a multi-colored jacket appearing to be the same jacket worn by appellant in the surveillance tape from the Giant food store. Inside the jacket was a prescription bottle belonging to a person named “Franklin Powell,” the same name used by appellant to introduce himself to the police in his interview on April 19th.⁸ Police seized a cell phone, personal check,⁹ and a credit or debit card—all Ms. Kuczynska's stolen property. A black, .38 caliber revolver with a brown handle—similar to the description provided by Ms. Kuczynska—was hidden under the mattress. Police also located a Giant store receipt and an identification card with a photograph of Barnes and Ms. Kuczynska's name on it.

Nine days after the robbery, Ms. Kuczynska identified appellant in a photo array and stated she was positive that appellant was the robber. She also identified appellant at trial. As will be seen later, there is significance to the fact that a motion to suppress photo identification was denied and that issue is not presented on this appeal.

II.

A. Direct Appeal

1. Expert Testimony

Prior to the beginning of the first of his three trials, appellant filed a motion seeking leave to introduce expert testimony of Dr. Henry Shulman, a professor of psychology at Ohio State University, “on psychological factors of memory and perception that may affect the accuracy of eyewitness identifications.” The government filed a “motion in opposition” to the expert testimony arguing that the victim's identification was corroborated by the fact that appellant was arrested in a vehicle containing some of Ms. Kuczynska's stolen property, appellant was seen on the Giant store surveillance video attempting to pass checks in Ms. Kuczynska's name, and because appellant sent police to the motel room where more of Ms. Kuczynska's stolen property was located.

The trial judge denied the motion, distinguishing appellant's case from past cases where he had admitted such testimony. For the court, the key distinction was that cases where the court had admitted expert testimony in the past were ones where there was little corroborating evidence; in those cases, the court reasoned, expert testimony on identification “would [have been] helpful to the [jury]” on cross-racial identification. In appellant's case, the court concluded:

[W]ith respect to eyewitness identification I have ruled previously in cases that—having heard from Dr. Schulman (phonetic) that on a very narrow issue of cross racial (phonetic) identification I have permitted expert testimony in that area where the government didn't have much other evidence in the case and I thought it would be of assistance to the trier of fact. I thought Dr. Schulman has demonstrated to me there was sufficient basis under Dias (phonetic) to admit the testimony in one—maybe two cases I've tried. I do remember one where there is very little corroborative evidence in the case and there was sufficient evidence. I thought the testimony about cross racial identification would be helpful to the trier of fact.... [T]he calculus in this case is a little bit different. This is certainly not one of those cases where I think, you know, the issue of cross racial identification is one that I think needs to be explored by an expert. There is abundant corroborative evidence in this case with regard to demonstrating Mr. Patterson's involvement in these offenses. He was observed cashing some of these check in another jurisdiction or trying to pass those checks. A room that's associated with him in Maryland. There are proceeds of the robbery that were found in that room. It was his girlfriend's room apparently but he was associated with that room in Maryland. He was identified in a vehicle that's been associated with those robberies. In a case like this I think that weighing the probative value versus prejudice having an expert testify in a case like this would put an unnecessary (indiscernible) on his opinion testimony and I'm not prepared to admit the testimony in this type of case. I have done it in other cases where the government had little or no other corroborative evidence and I thought it would be helpful to the trier of fact.

Moreover, the trial court added, the standard jury instruction would provide the jury “with all the guidance it needs to be able to determine the accuracy and reliability of eyewitness identification.” Finally, the witness would be impermissibly involved in the jury reaching its “ultimate opinion about the reliability of the identification and give undue weight to [the expert's] opinion in the narrow area of cross racial identification.” During appellant's second trial, presided over by a different judge, appellant renewed his request to introduce expert testimony, but that trial judge, too, denied the motion, stating that it had no reason “to revisit what was a ... perfectly reasonable discretionary decision by [the previous trial judge].” ¹⁰

Appellant contends that the first trial court erred when it refused to permit appellant to present an expert witness on identification testimony. Appellant argues that the first trial court failed to exercise its discretion by basing its decision on corroborative evidence, which is not part of the Dyas test. See Dyas v. United States, 376 A.2d 827, 832 (D.C.1977).¹¹ He also asserts that the second trial court's acceptance of the ruling of the first trial court was erroneous because some of the “corroborative evidence [relied upon by the first trial judge] was different than that which the ...