Stewart v. United States, 84-510.

• Decision Date: 29 March 1985
• Docket Number: No. 84-510.,84-510.
• Citation: 490 A.2d 619
• Parties: Reginald J. STEWART, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

490 A.2d 619

Reginald J. STEWART, Appellant, v. UNITED STATES, Appellee.

No. 84-510.

District of Columbia Court of Appeals.

Argued January 9, 1985.

Decided March 29, 1985.

COPYRIGHT MATERIAL OMITTED

J. Philip Kessel, Washington, D.C., appointed by the court, for appellant.

R. Jeffrey Behm, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before PRYOR, Chief Judge, and BELSON and TERRY, Associate Judges.

PRYOR, Chief Judge:

Following a jury trial, appellant, Reginald J. Stewart, was convicted of two counts of first-degree burglary, D.C.Code § 22-1801(a) (1981), one count of robbery, id. § 22-2901, and one count of destruction of property, id. § 22-403. The government's case against Stewart rested on identifications by the victim, and her neighbor, Ms. Eloise Wilcox. Appellant alleges that the trial court (1) erred in failing to suppress pretrial identifications of appellant by the victim, made from a photographic display and at a line-up; (2) erred in permitting the government to impeach its own witness with a prior inconsistent statement, and in failing sua sponte to give a cautionary instruction concerning the impeachment; (3) incorrectly ruled that appellant's prior commitment for a Youth Corrections Act study under 18 U.S.C. § 5010(e) (1980) (§ 5010(e) study) could be used for impeachment purposes if appellant testified; and (4) committed error in sentencing. Finding no grounds for reversal, we affirm the convictions but remand the case to the trial court for resentencing.

I

At trial, the complainant testified that on the afternoon of June 2, 1983, a young man, whom she later identified as Stewart, approached her in the hallway of her apartment building in Northwest, Washington and asked her where a Mr. Thompson lived. She responded that she did not know a Mr. Thompson and directed appellant to the resident manager who was standing nearby.

The next evening, June 3, at about 7:00 p.m., the victim was alone in her apartment when she heard a knock at the door. She looked through the peephole and asked who was there. A male individual replied that he was seeking a "recommendation." The victim testified that from the individual's face and voice she recognized him as the young man with whom she had spoken in the hallway the previous afternoon. The victim opened the door a little and responded that she could not let him in because she did not know him. At that point, the entry was forced by appellant, and a second man, whom the victim had never seen before. The second man immediately struck the victim in the eye and knocked her to the floor. Appellant demanded money and the second man began choking, beating, and pushing her. The victim initially refused to show the men where she kept her money but stopped resisting after the second man ripped her clothes off and persisted in beating her. Appellant continued to search and ransack the apartment. Both men dragged the victim into her bedroom where the second man forced her to lie on the bed face down, gagged her, and bound her hands and feet. The second man threatened to burn the victim in her bed and went to search for matches. While he was out of the room, the victim was able to free herself and run from the apartment to the first floor where she gained entrance to the apartment of neighbors. The neighbors called the police.

The victim was taken to the hospital where she remained for approximately twelve days. While she was in the hospital, Detective John Walton of the Metropolitan Police Department showed her an array of sixteen pairs of photographs. The victim identified appellant as one of the two men who had broken into her apartment and had assaulted her on the evening of June 3, 1983, and as the young man with whom she had spoken the day before the attack. Approximately one month after she was released from the hospital the victim identified appellant in a police lineup. She also identified appellant in court during trial.¹

Appellant was also identified from a photographic array by Ms. Eloise Wilcox, another resident of the complainant's apartment building. Ms. Wilcox testified that she knew appellant by the name "Lucky," and that she had seen "Lucky" in the apartment building on the afternoon of June 2, 1983.

After a two day trial, the jury returned guilty verdicts on all counts. Appellant was sentenced to concurrent terms of imprisonment of seven to twenty-one years on each of the first-degree burglary convictions, five to fifteen years on the robbery conviction, and of one year for destruction of property. This appeal followed.

II

At the pretrial suppression hearing, appellant claimed that the procedures underlying the photographic array identification were unduly suggestive. Appellant argued that, out of the sixteen pairs of photographs shown to the complainant, fifteen pairs showed a profile view of the individual first, followed by a frontal view. Only appellant's photographs showed a frontal view first followed by a profile view.

Appellant claimed that the line-up identification was also impermissibly suggestive because appellant was noticeably younger than the other six individuals standing in the line. Moreover, appellant was dressed in a light colored sweatsuit, similar to the clothing worn by the man the complainant encountered in the hallway on the afternoon of June 2. Finally, appellant argued that both identifications were unreliable because the complainant's vision was blurred when she was punched in the eye, and because the lighting in the hallway and her apartment at the time in question was poor.

Based on the evidence adduced at the hearing and after reviewing the photographic array and a video tape of the lineup, the trial court concluded that there was nothing suggestive about the procedures utilized in either identification. The court found that the out of court identifications were "about as reliable as these things can be."

In Patterson v. United States, 384 A.2d 663 (D.C.1978), we stated that a challenge to identification procedures under the principles set down by the Supreme Court in Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1969, 1972, 18 L.Ed.2d 1199 (1967), can involve a two-part inquiry:

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

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

Patterson v. United States, supra, 384 A.2d at 665 (citations omitted); see also 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).

In the instant case, the trial court made an initial finding that the procedures used by the police in both identification sessions were not suggestive. We are bound by the trial court's findings if they are supported by the evidence and in accordance with law. United States v. Walton, 411 A.2d 333, 339 (D.C.1979). After reviewing the record, including the photographs of the line-up and the photographs used in the array, we find considerable support for the trial court's finding of no suggestivity. With respect to both the photographic array and line-up, appellant appeared with other black males of similar physical characteristics and similar age. At no time did the police direct the victim's attention to appellant. In fact, the complainant testified at the suppression hearing that while viewing the photographic array she never noticed that appellant's photographs were in a different order from the rest. See Harley v. United States, 373 A.2d 898, 900 (D.C.1977) (photographic array not suggestive even though defendant was shown wearing clothing similar to that worn by alleged assailant); United States v. Sherry, 318 A.2d 903, 904-05 (D.C.1974) (photographic array not suggestive where defendant's photograph depicted only full face view while other photographs in array depicted both full face view and profile).

Following its conclusion that the identification procedures were not unduly suggestive, the trial court made an additional finding, see Johnson v. United States, 470 A.2d 756, 759 n. 1 (D.C.1983); Patterson v. United States, supra, 384 A.2d at 668 n. 7, that under the totality of the circumstances the complainant's identifications of appellant were reliable.²

In assessing whether an identification is reliable, the trial court must consider several factors including:

(1) the opportunity of the witness to view the criminal during the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.

Taylor v. United States, 451 A.2d 859, 863 (D.C.1982) (citing Neil v. Biggers, supra, 409 U.S. at 200-01, 93 S.Ct. at 382-83); Manson v. Brathwaite, supra, 432 U.S. at 114-15, 97 S.Ct. at 2253; see also Patterson v. United States, supra, 384 A.2d at 666 n. 4. Application of these factors to this case supports the trial court's ruling that the identifications were reliable.

The victim had considerable opportunity to observe appellant on two successive days: on June 2, 1983, when appellant approached her in the hallway; and on June 3, 1983, when he broke into her apartment.³ She was also able to recognize appellant by his voice when he came to her door on the evening of June 3, because she had had a brief conversation with him the previous afternoon, and had overheard appellant's conversation with the resident manager as well.

Moreover, both of the victim's identifications took place within a short period following the incident. The victim was shown the photo array by Detective Walton two days after she was attacked, and she attended the police line-up within approximately six weeks of the...