Smith v. US, 97-CF-812.

• Decision Date: 02 August 2001
• Docket Number: No. 97-CF-812.,97-CF-812.
• Citation: 777 A.2d 801
• Parties: Curtis A. SMITH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

777 A.2d 801

Curtis A. SMITH, Appellant, v. UNITED STATES, Appellee.

No. 97-CF-812.

District of Columbia Court of Appeals.

Argued January 2, 2001.

Decided August 2, 2001.

Gregory A. Cotter, Washington, DC, appointed by the court, for appellant.

Thomas J. Tourish, Jr., Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, John R. Fisher, Ann K. H. Simon, Mary-Patrice Brown, Robert C. Little, Yvonne O. Lee, and Ryan H. Rainey, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and FARRELL, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

On January 9, 1997, after a jury trial, appellant Curtis A. Smith was convicted of armed robbery in violation of D.C.Code §§ 22-2901 and -3202 (1996). Smith raises three issues on appeal. First, he argues that the trial judge erroneously denied his motion to suppress the identifications of two eyewitnesses. Second, he asserts that the trial judge improperly permitted the government to introduce evidence of his pre-trial flight. Finally, he posits that the government failed to present evidence sufficient to establish that he was armed and, therefore, that the trial judge incorrectly denied his motion for judgment of acquittal on the armed robbery charge. We disagree with Smith's arguments and affirm.

I.

At approximately 11:00 p.m. on April 19, 1996, Officer Tim Harris and another member of the Metropolitan Police Department ("MPD") were outside a Checkers drive-in restaurant in the District of Columbia. Officer Harris recognized Smith as he walked by and asked him if his name was Curtis Snowden. Officer Harris thought he knew Smith from McFarland Junior High School. Smith responded by saying that his first name was Curtis, but that his last name was not Snowden. Smith then asked Officer Harris if he knew his cousin, Nigel Brown, who was also an MPD officer.

During their conversation, appellant Smith was wearing a red jacket, a gray sweat shirt, gray sweat pants, and had a "dark, puffy" eye and a mustache. Following their conversation, Smith walked across the street to a pay phone only to return to the area around the restaurant a short time later. He then went into the restaurant, stood around for a few minutes, ordered a beverage, and left. Soon thereafter, he approached the "low-side" drive-up window from the outside, pushed Diane Williams, the Checkers employee servicing the drive-up window, and "started going through the [cash] drawer." With his right hand in his jacket pocket, Smith used his left hand to pilfer the cash register. During the robbery, Smith's right hand and, thus, right jacket pocket were pointed through the window in the direction of Williams and Brenda Kearney, another Checkers employee. Both Williams and Kearney testified that they believed Smith had a gun inside his right jacket pocket. No one, however, saw Smith holding a gun, nor did anyone actually observe a gun on Smith's person. A gun was never recovered. At some point, Johnnie Washington, a manager at the restaurant, approached Smith from the inside of the restaurant. Upon seeing Washington, Williams testified that Smith "told [the manager] to the stay the * * * * back before he shoot him." Kearney testified that Smith's exact words were, "Move—move back or I'll shoot." Calls for help ensued and Smith quickly fled the scene.

Upon hearing the pleas for assistance, Officer Harris, who was still in the vicinity, pursued Smith by following the directions of those who had witnessed Smith's flight. However, he was unable to locate Smith and returned to the restaurant a short time later. Kearney then told Officer Harris that the perpetrator was "[t]he guy with the red jacket that was talking to you outside in the picnic area."¹ In addition to observing him during the robbery, both Williams and Kearney had seen Smith inside, or just outside, the restaurant prior to the commission of the crime. In fact, Kearney had served him a beverage just prior to the robbery.

Kearney and Williams provided similar descriptions of the offender to the investigating detective, MPD Detective Larry West. Kearney told Detective West that the perpetrator was wearing a red jacket, had a "black eye," was approximately thirty-five years old and five feet eight inches tall, and had a complexion similar to Kearney's.² Williams described the robber as a "brown-skinned" black male, in his thirties and six feet tall, with a "black puffy eye" who was wearing a red sweat shirt with pockets.³

On August 27, 1996, MPD Detective Diana Pristoop showed Officer Harris a photo array which contained nine photographs. Officer Harris selected Smith's photograph. With Officer Harris' identification, Detective Pristoop was able to secure an arrest warrant.

She also proceeded to conduct identification procedures with Washington, Kearney, and Williams. On November 1, 1996, Detective Pristoop showed Washington two group photographs of a September 25, 1996 line-up.⁴ Washington ultimately identified a police "filler," and not Smith, as the perpetrator of the crime. Feeling that the depictions of the men in the two group photographs were not optimum for identification purposes, Detective Pristoop enlarged the group photographs and separated them by individual. On November 6, 1996, Kearney and Williams were exposed to this "new" photo array. The array consisted of fourteen total pictures, two each of the seven subjects who made up the September 25, 1996, group line-up. Both Kearney and Williams were shown the photo array separately.⁵ Without hesitation, Kearney selected Smith's photograph, signing "That's him" on the back of the photograph. Williams also picked Smith's picture, noting "This looks exactly like him. Positive that's him!" on the back of the same photograph.

Following Smith's arrest, on September 17, 1996, Deputy United States Marshal Christopher Layer brought Smith to a preliminary hearing for the charges stemming from the robbery. According to Deputy Layer, when the trial court ruled that Smith was to be held without bond pending trial, Smith attempted to flee the courtroom. A plainclothes MPD officer apprehended Smith before he could escape.

Sandra Dockery, Smith's mother, testified at trial that her son briefly attended McFarland Junior High School and that Officer Nigel Brown is her son's cousin.

Prior to the trial, the court conducted an evidentiary hearing on Smith's motion to suppress the photographic identifications of Kearney and Williams. After hearing testimony from Detective Pristoop, Detective West, Williams, and Kearney,⁶ as well as arguments from both parties, the trial judge denied the motion on January 6, 1997. Defense counsel also sought to exclude the introduction at trial of any evidence concerning Smith's flight following the preliminary hearing. On January 8, 1997, the trial judge, after hearing arguments, denied defense counsel's request and ruled that the government could present such evidence. On January 9, 1997, a jury convicted Smith of armed robbery.

II.

Smith first argues that the trial court erred in denying his motion to suppress the identifications of Williams and Kearney because the photo array shown to them was unnecessarily suggestive and conducive to irreparable misidentification. We focus on two questions when reviewing an identification procedure:

(1) Was the identification procedure "unnecessarily suggestive and conducive to irreparable misidentification"?

(2) If so, given the "totality of circumstances," was the resulting identification reliable nonetheless?

Buergas v. United States, 686 A.2d 556, 558 (D.C.1996) (quoting Henderson v. United States, 527 A.2d 1262, 1268 (D.C. 1987)). In determining the answer to the first question, "we examine whether some related circumstances or something `in the [photo] array would have directed [the] witness' attention to any particular individual.'" Id. (quoting McClain v. United States, 460 A.2d 562, 566 (D.C.1983) (alteration in original)). "[U]nless a physical feature is deemed an important or crucial identifying feature, the presence or absence of such a trait does not necessarily render an array unduly suggestive." Id. at 559. Moreover, "[w]e are bound by the trial court's findings if they are supported by the evidence and in accordance with law." Stewart v. United States, 490 A.2d 619, 623 (D.C.1985); see also United States v. Walton, 411 A.2d 333, 339 (D.C.1979)

(citing D.C.Code § 17-305(a) (1973)).

Smith argues that the array was unnecessarily suggestive because it contained photographs of only one other lightly complected African-American male. The other similarly complected individual, according to Smith, was not even that close a likeness as he was "much older." After examining all of the photographs,⁷ we are persuaded, consistent with the trial court's position, that a sufficient number of those in the array were similarly complected. Moreover, all of the individuals depicted were within the same general age range, wearing facial hair, standing in front of a consistent background, and wearing button-down shirts with collars. Our review of the array therefore leads us to conclude that the trial court did not err in ruling that it was not unnecessarily suggestive.⁸

III.

Next, Smith argues that the evidence of his attempted flight from the preliminary hearing was erroneously admitted at trial because there was no reasonable inference that he "fled because of consciousness of guilt of the crime charged." After hearing arguments from both parties and noting defense counsel's objection, the trial court permitted the introduction of such evidence because: Smith's attempted escape from the pretrial hearing was sufficient to create the required inference of consciousness of guilt; the probative value of the flight evidence otherwise outweighed the prejudicial effect; and Smith's arguments discounting the flight evidence...