Singletary v. United States

• Decision Date: 24 February 1978
• Docket Number: No. 10839.,No. 10862.,10839.,10862.
• Citation: 383 A.2d 1064
• Parties: Eric SINGLETARY and Maurice Hardy, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1064

383 A.2d 1064

Eric SINGLETARY and Maurice Hardy, Appellants, v. UNITED STATES, Appellee.

No. 10839.

No. 10862.

District of Columbia Court of Appeals.

Argued November 16, 1977.

Decided February 24, 1978.

COPYRIGHT MATERIAL OMITTED

Frederick J. Sullivan, Bowie, Md., appointed by this court, for appellant Singletary.

Silas J. Wasserstrom, Public Defender Service, Washington, D. C., with whom Michael L. Fayad, Public Defender Service, Washington, D. C., was on the brief, for appellant Hardy.

Ann P. Gailis, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, YEAGLEY and FERREN, Associate Judges.

KERN, Associate Judge:

Appellants were each found guilty of two counts of armed robbery (D.C.Code 1973, §§ 22-2901, -3202), and one count of carrying a pistol without a license (D.C.Code 1973, § 22-3204). Appellant Singletary argues on appeal (1) that the pretrial showup and in-court identifications of appellants were impermissibly suggestive and should have been suppressed, and (2) that his motion for judgment of acquittal should have been granted because the evidence did not permit a finding of guilt beyond a reasonable doubt. Appellant Hardy raises different issues, contending (1) that the trial court erred when it refused to allow appellant to waive his right to be present during a hearing on a motion to suppress identification testimony, and (2) that it was prejudicial error for the trial court to deny appellant his right to recross-examine a complaining witness as to allegedly new and crucial matters which were brought out for the first time during redirect examination.

These convictions resulted from the robbery of two individuals, Moses Walker and Burnis Lee, in the early evening of March 20, 1975, in front of a liquor store on the corner of First and Q Streets, N.W., in Washington, D.C. Mr. Lee had gone into the store to buy beer. As Mr. Walker waited outside in his car, he was approached by a man in red pants who held a gun which was partially concealed in a plastic bag. The man pointed the gun at Walker and said: "Pops, this is a stick-up." A second man, who was taller than the first and who was dressed in dark clothes, went around the front of Walker's car, got into the passenger side, and began to go through Walker's pockets and the interior of the car.

At about this time, Mr. Lee emerged from the store. The man in red pants then approached him, with the gun covered with the plastic bag. The taller robber got out of Walker's car and went through Lee's pockets, netting a total of about $5.60 from the two men. According to the testimony of Mr. Walker, the taller man addressed his partner as "Maurice" three times during the crime. Both Lee and Walker testified that the area was well lit, and that they got a good look at the faces of the men.

As the assailants fled, Walker got out of his car and followed the two men, who disappeared into an alley. Walker then flagged down a police cruiser and reported the robbery. He pointed in the direction of Bates Street, toward which the men had gone, and gave the two policemen a brief description, including the fact that the assailants were two black males and that one had on red pants. As the police cruiser pulled away, Walker yelled at the officers that the man in red pants had a gun.¹

The policemen proceeded in the direction indicated by Mr. Walker. As they turned into Bates Street, they saw two men who were heading east, in the same direction as Walker had told them the assailants had gone. According to police testimony, not more than three minutes had elapsed since the robbery had been reported, and these were the only persons on the block. When the two men realized a car was approaching, they crossed the street and doubled back toward the police car. As they did so, they passed behind a parked Cadillac, during which time the officers could not see their hands. One of the suspects was wearing red pants. The policemen ordered the men to stop in front of 72 Bates Street. They were frisked, but no weapon or money was recovered. They were then placed in the rear of the police cruiser and returned to the scene of the robbery, which was only about a block away.

One of the officers told Mr. Walker, "[W]e got two guys in the car similar to the ones you told us about." Walker then positively identified them as the robbers. When he did this, the man in dark clothes said: "I think you got your people mixed. . . . You better take a good look at us." Walker replied; "I taken a good look at you while you was robbing me, a very good look at you." Mr. Lee, who had not seen Walker make his identification, also positively identified the suspects.

Following the identifications, Walker asked the officers whether they had recovered the weapon. When they responded that they had not, he told them that the gun was in a plastic bag. The police then backtracked the escape route and found a gun in a plastic bag near the left rear wheel of the Cadillac which was parked in front of 72 Bates Street, about ten feet from where the suspects had been stopped.

I.

Appellant Singletary contends on appeal that the pretrial showup identifications of him and subsequent in-court identifications made by the complaining witnesses were impermissibly suggestive² and were also fruits of an illegal arrest. Although a degree of suggestibility is inevitable in the context of every pretrial confrontation between a witness and a suspect, United States v. Wade, 388 U.S. 219, 235, 87 S.Ct. 81, 17 L.Ed.2d 53 (1967), a defendant is not denied due process of law unless, in the totality of the circumstances, the on-the-scene confrontation was unnecessarily suggestive and conducive to the substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 197-208, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384, 83 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Clemons v. United States, 133 U.S.App.D.C. 27, 38, 47, 408 F.2d 1230, 1241, 1250 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). In considering the totality of the circumstances, an immediate on-the-scene confrontation has uniquely powerful indicia of reliability which more than counterbalance any suggestivity, absent special elements of unfairness. Jones v. United States, D.C.App., 277 A.2d 95, 97-98 (1971), citing Russell v. United States, 133 U.S. App.D.C. 77, 81, 408 F.2d 1280, 1284, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); United States v. Washington, 144 U.S.App.D.C. 338, 341-42, 447 F.2d 308, 311-12 (1970). See United States v. Jones, 170 U.S.App.D.C. 362, 365-66, 517 F.2d 176, 179-80 (1975). Furthermore, something more egregious than mere custodial status is required in order to establish such special unfairness. See United States v. Hines, 147 U.S.App.D.C. 249, 260, 455 F.2d 1317, 1328 (1971), cert. denied, 406 U.S. 969, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972).

When the instant case is evaluated in light of these principles, it is clear that there were no special elements of unfairness in the showup identifications of the appellants. Both complaining witnesses testified that the area of the offense was well lit and that they got a good look at the faces of the men. Appellants matched the description given by Mr. Walker and were apprehended within a few moments of the crime only a short distance from the place where it had occurred. When they were brought back to the complainants, one of the officers told Mr. Walker, "[W]e got two guys in the car similar to the ones you told us about." While these comments could have been phrased more neutrally, we do not find that they rendered the showup so suggestive as to give rise to a substantial likelihood of misidentification, where the victims had ample opportunity to observe the defendants during the crime and the showup followed the assault by only a few minutes. See Washington v. United States, D.C.App., 334 A.2d 185, 187 (1975) (detective told complainant that "we got your man, we think"). Although appellants were seated in a police car when they were identified, they were not handcuffed, and there was nothing in the situation beyond mere custodial status. Jones v. United States, supra at 97 (confrontation in which suspect was seated in back seat of police car in handcuffs, though suggestive, was permissible); United States v. Lee, 158 U.S. App.D.C. 296, 298, 485 F.2d 1075, 1077 (1973) (identification of defendant while he was lying face down on floor with his arms handcuffed behind his back was permissible where confrontation took place within a few minutes of robbery in close proximity to scene of crime). Moreover, the complainants viewed the suspects separately and each made prompt and positive identifications. In the totality of these circumstances, the showup confrontation between the defendants and the complaining witnesses cannot be considered unnecessarily suggestive.³

Appellant Singletary further argues that his identification was the result of illegal police conduct and was thus the fruit of an illegal arrest. In this case appellants were stopped within three minutes of the time the crime was reported, approximately a block from the scene of the incident. They were walking in the direction in which the robbers reportedly had fled and were the only persons on the street. Moreover, appellants were wearing clothes which precisely fit the description given by complainant Walker, including appellant Hardy's distinctive red pants, and their conduct upon seeing the police car in crossing the street and reversing the direction in which they were walking could under the circumstances have been considered suspicious. Thus, the trial court correctly held that the police...