Sheffield v. United States

• Decision Date: 01 February 1979
• Docket Number: No. 12836.,12836.
• Citation: 397 A.2d 963
• Parties: Samuel L. SHEFFIELD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

397 A.2d 963

Samuel L. SHEFFIELD, Appellant, v. UNITED STATES, Appellee.

No. 12836.

District of Columbia Court of Appeals.

Argued September 12, 1978.

Decided February 1, 1979.

COPYRIGHT MATERIAL OMITTED

Andrew L. Lipps, Public Defender Service, Washington, D. C., for appellant.

John H. Korns, II, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Oscar Altshuler, Michael W. Farrell and Richard H. Saltsman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KELLY and KERN, Associate Judges.

NEWMAN, Chief Judge:

Convicted by a jury of armed kidnapping, armed robbery, and extortion, appellant seeks reversal of his conviction, contending that the trial court erred: (1) in denying his motion to suppress certain pretrial photo identifications; and (2) in failing to sua sponte impose sanctions where the police failed to preserve photographic evidence. We affirm.¹

On the evening of November 3, 1976, while Kirk King was leaving the house of his girlfriend, Tawana Sheffield, at 1252 10th Street, N.W., he saw three men standing beside the fence of the house next door. King walked up to the group and asked for a match, when suddenly one of the men placed a .45 caliber automatic pistol in his ribs. The three men, all of whom were unmasked, then took King to the house next to the Sheffield home. There they made King remove all of his clothes and sit on the floor. After rummaging through King's clothes and finding only twenty-nine cents and a cigarette, they ordered King to put his clothes back on and call someone to get some money.

The trio then took King to the Sheffield home.² One of the three men went to the basement where he picked up the telephone extension. Two of the men stood watch as King made several calls to obtain money. After a number of unsuccessful calls, the man in the basement returned and informed his compatriots that King "can't get no money." He then ordered King to call his father and returned to the basement to listen on the extension. King then telephoned his father and told him to send $100 to 11th and M Streets or he would not see him anymore. King was then taken to the house next door, where he was again ordered to remove his clothes.

Following the telephone conversation with his son, Frank King, Sr. gave $100 to James Pipkins to deliver to the men who had abducted his son. Pipkins asked Ronald Baker to accompany him. When Pipkins and Baker arrived at 11th and M Streets, Baker crossed the street and handed over the $100 to one of the abductors who was there waiting, while Pipkins remained on the far side of the street.

Meanwhile, Frank King, Sr. flagged down two police officers, Lewis C. Brickhead and Francis L. Hinton, and informed them of the telephone call and the abduction of his son. The officers immediately began looking for Kirk King and eventually found him at the King home between 9:30 and 10:00 in the evening.³ They drove to 1254 10th Street, the house next to the Sheffield home and recovered King's undergarments. King then gave the names of two of his abductors, Lawrence Brown and Claude Wade, to the police officers. He also picked their photographs from an array.

On the following day, Brickhead and Hinton brought another set of photographs to the King home seeking identification of the third man. As King was pointing to the picture of appellant in the array, Ronald Baker entered the room and also identified appellant as the man to whom he had given the $100. On February 8, 1977, King also identified appellant in a lineup.

At the suppression hearing Kirk King testified to his abduction by appellant and two other men and to his subsequent identification of appellant in the photo array and the lineup. Ronald Baker testified that he had handed the $100 over to appellant. He further testified that there were street lights in the area; that he had no difficulty seeing the man to whom he had delivered the money; and that the man was a person whom he had seen twice before in the area. Baker also testified as to his identification of appellant in the photo array, noting that he entered the room as Kirk King picked appellant's picture from the array. The trial court denied the motion to suppress, ruling as to Baker's photo identification that although Baker was, in fact, aware of King's prior photo identification of appellant, this occurred "without intention or any conduct on the part of the police officers." It is on this issue that appellant's contention in this court focuses.

Officers Brickhead and Hinton also testified at the suppression hearing. During cross-examination, appellant's trial counsel elicited from Officer Hinton that while the photographs brought to the suppression hearing were photographs of the same people shown to King and Baker, they were not the same photographs used at the photo identification. Appellant's trial counsel did not object to the use of such photographs at the hearing, nor did he request that the trial court impose any sanctions for the failure of the officers to retain the actual group of photographs.

Appellant contends that the trial court's refusal to suppress Baker's pretrial photo identification and its failure to bar his in-court identification of appellant denied him due process under principles enunciated in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

In Manson v. Brathwaite, supra, the Supreme Court reviewed Stovall and its progeny and held that the admission of testimony "concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." 432 U.S. at 106, 97 S.Ct. at 2249. In so holding, the Court reaffirmed those prior decisions insofar as they established that unduly suggestive identifications which are unreliable violate principles of due process and therefore are inadmissible. The Court emphasized that where a pretrial identification procedure is challenged on due process grounds, reliability is to be the linchpin of analysis. Id., at 114, 97 S.Ct. 2243. Thus, where the police or prosecution utilize an identification procedure which is inherently unreliable, an accused may challenge the use of such evidence by filing a timely motion to suppress.

However, the Court left undisturbed that fundamental principle which holds that pretrial identification or recognition of an accused by a witness in the absence of participation by the police or prosecution does not bring such identification within the ambit of the due process principles set forth in Manson v. Brathwaite, supra. See Cureton v. United States, D.C.App., 386 A.2d 278, 287 (1978), and cases cited therein. Thus, absent an affirmative showing that a pretrial identification involved unlawful conduct on the part of state officials, the due process safeguards of Manson v. Brathwaite, supra, are not implicated and a challenge to a "spontaneous and mutual recognition by two witnesses of a third party in a setting not precipitated or arranged by law enforcement officials" may not be predicated on such a basis. Hill v. United States, D.C.App., 367 A.2d 110, 115 (1976).⁴ Moreover, where an accused makes no allegation of police involvement, such chance or accidental pretrial confrontations have not barred on due process grounds a later in-court identification where no untainted identification preceded the challenged confrontation. See Cureton v. United States, supra at 287.

Having failed to demonstrate at the suppression hearing that the pretrial identification is constitutionally infirm, an accused is not without recourse. A defendant may challenge the admission of such testimony by raising a timely objection to its admissibility at trial on the ground that under the law of evidence testimony is so inherently weak or unreliable as to lack probative value. Cf. Reavis v. United States, D.C.App., 395 A.2d 75. Of course, where there is a failure to raise a timely objection to the introduction of such identification testimony, the trial court's decision will not be overturned on appeal unless it is found that the error served "to jeopardize the very fairness and integrity of the trial." Watts v. United States, D.C.App., 362 A.2d 706, 709 (1976) (en banc).

In applying these principles to the case at bar, it is undisputed that Baker's identification of appellant in the photo array was not the product of improper police conduct. Thus, the doctrine of Manson v. Brathwaite, supra, is inapposite and appellant's reliance thereon is misplaced. Accordingly, the...