Swann v. United States

• Decision Date: 23 October 1974
• Docket Number: No. 7306.,7306.
• Citation: 326 A.2d 813
• Parties: Kenneth W. SWANN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

326 A.2d 813

Kenneth W. SWANN, Appellant, v. UNITED STATES, Appellee.

No. 7306.

District of Columbia Court of Appeals.

Argued January 15, 1974.

Decided October 23, 1974.

John W. Nairn, Washington, D. C., appointed by this court, for appellant.

E. Lawrence Barcella, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before KELLY, KERN and NEBEKER, Associate Judges.

NEBEKER, Associate Judge:

Appellant seeks to overturn his convictions for burglary while armed and armed robbery by attacking certain procedures followed by the government during and prior to trial. He argues that pretrial photographic and corporeal identifications were impermissibly suggestive and that they tainted subsequent lineup and in-court identifications. He also urges that the government impermissibly interfered with the presentation of his defense at trial by arresting a person whom appellant had planned to call as an alibi witness just before she was to testify. We discuss the relevant facts in each part of this opinion. The judgment of conviction is affirmed.

I

The complaining witness, Mrs. Alberta Chambers, the resident manager of a northwest Washington apartment house, testified that she was accosted at the door of her apartment in midafternoon by appellant who, armed with a pistol, demanded money. He backed her into her living room, struck her in the head with his pistol, and threatened her with death when she contended she had no money. Finally, he found her pocketbook and removed some $50 from it. The incident, according to her, took five minutes and occurred in "excellent" light during which time she had "continuous opportunity" to view appellant. She had seen appellant on previous occasions when he had come to the apartment building to visit a friend who also lived there. Although at first hesitant to call the police in light of appellant's threats of reprisal against her children and herself, she reported the crime within a few minutes and gave a detailed description of the robber.

One Detective Reeder, assuming responsibility for investigation of this robbery, first showed Mrs. Chambers a large book of photographs of suspects but she was unable to make an identification. Thereafter, he presented an array of ten photos from which she selected appellant's photo. Appellant's photograph was included in this array since during Detective Reeder's investigation he learned that Mrs. Chambers had seen appellant getting into a small red auto that was usually parked near her residence. In his surveillance of the area, Detective Reeder located the car and traced it to appellant. Knowing appellant's identity, he placed his picture in the ten-photo array.

At trial the government was unable to produce this second array from which Mrs. Chambers made her identification because Detective Reeder had returned those photos to his book. He did describe them during his testimony at trial as "Metropolitan Police [Department] official photographs," depicting black males.

Mrs. Chambers also identified appellant on a date after she had selected his photo and before any lineup when she saw him through her window as he stood across the street talking with Detective Reeder. The detective had come to speak with her, but recognized appellant on the street and engaged him in conversation. After this encounter, the detective went to Mrs. Chambers' apartment and asked her if she had seen him across the street and if she had seen him talking with another man. She answered "yes" to both questions. Detective Reeder then asked, "Was that the young man?", and she replied, "[T]hat's him."

During her testimony, Mrs. Chambers was shown a photograph of appellant which was taken after his arrest. She identified the coat he was wearing in the picture as just like the coat worn by her attacker.

Appellant argues that the on-the-street meeting of appellant and Detective Reeder in full view of Mrs. Chambers who was across the street at her window was so unnecessarily suggestive as to deprive appellant of due process. He claims this meeting amounted to an unjustified one-man showup and that the questions Detective Reeder asked Mrs. Chambers about the meeting prompted her subsequent identification. We conclude, without reaching the question whether this purely fortuitous sighting involves any constitutional issue,¹ that there was no danger of misidentification. Mrs. Chambers had previously seen the appellant in her own apartment building on several occasions before the attack and on the very day of the offense. See United States v. Inge, 494 F.2d 1102 (D.C. Cir., 1974); United States v. Anderson, 490 F.2d 785 (D.C.Cir., 1974).

As to appellant's complaint that the fact of the photographic identification should not have been placed in evidence because of the inability to reconstruct the precise photographic array, we are of the view that reversal is unwarranted. Our reason for this conclusion is the independent basis for the identification of appellant. Moreover, defense counsel was supplied the officer's album from which that array was constituted, and he made no further complaint relying only on the pretrial motion which was couched in the most general terms.

II

The events occurring during the trial that give rise to the allegation that appellant was precluded from presenting his defense spring from a defense witness threatening Mrs. Chambers outside the courtroom during trial.² Appellant's witness as to alibi, Mrs. Delores Williams, was purportedly going to testify that appellant was in her apartment during the time of the offense. The government knew that Mrs. Williams was to be his witness at trial but was not aware that appellant was going to plead an alibi as his defense. Sec Super.Ct.Crim.R. 16-I. Before appellant called Mrs. Williams to the stand she was arrested on a warrant³ on a charge of obstruction of justice upon the complaint of Mrs. Chambers and Detective Reeder.

Soon after the complainant began her testimony at the suppression hearing, the prosecutor represented to the trial judge:

I didn't get the complete story from Mrs. Chambers [the complainant] and the gentleman [a neighbor who had accompanied her to court]. She was extremely upset and agitated.

* * * * *

[A]nd . . . the other gentleman . . told me that they [Williams and two others] were saying all kinds of things, of threatening things, . . . I didn't pursue it any further with them. . . .

Counsel for both parties and the trial judge were subsequently told that warrants had been obtained for the arrest of two unidentified parties. Prior to the presentation of the defense case, the judge and defense attorney learned from a deputy marshal that Mrs. Williams had been arrested. The prosecutor advised the court:

Reeder interviewed Mrs. Chambers and Mr. White [her neighbor and companion at the trial] and at that point remarks were threats; because I think he learned from his interview with them [Mrs. Chambers and Mr. White] either one or all of these people out in the hallway [Williams and two companions] said to Mrs. Chambers and Mr. White, "We're gonna get you." That's all I know; I haven't had anything to do with that.

The witness Williams was assigned counsel who subsequently stated to the trial court that he had advised her "to invoke the Fifth Amendment" if appellant called her to testify. After some further colloquy with counsel, the trial judge announced that he was satisfied that she was entitled to the privilege. Appellant's trial counsel decided that he would not call Mrs. Williams as a witness so as to avoid the tactical disadvantage of having her invoke the privilege from the stand in the presence of the jury.

Appellant contends now that he was deprived of testimony absolutely crucial to his defense by the action of the government in arresting his alibi witness before she could testify on his behalf. We are not persuaded that the arrest — an action by the government, warranted as it was and not undertaken by the prosecutor as a purposeful attempt to weaken the defense — resulted in a denial of appellant's rights to due process and a fair trial. It must be remembered that the primary and proximate event leading to the witness' claim of the self-incrimination privilege was her own illegal act. That act tended to undermine the very integrity of the judicial process, and compelled immediate arrest. Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769 (1962); cf. Blunt v. United States, D.C.App., 322 A.2d 579 (1974). The privilege to refuse to testify against herself arose at that point and would have been available even if the arrest warrant had not been sought and executed. Since counsel and the trial judge knew of the threat, it would have been necessary, irrespective of whether the witness had been arrested, to follow the same process which lead to the claim of the privilege. It is beyond question that the fact of the threat was relevant to bias and thus credibility of the witness and would have been a proper subject for cross-examination. White v. United States, D.C.App., 297 A.2d 766, 768 (1972).

The fact that appellant's witness attempted an obstruction of justice by a fully cognitive and volitive threat to the complainant makes this case different from those relied on by appellant and our dissenting colleague. Here the self-incrimination privilege springs from a separate and completed criminal act of the witness having a direct impact on the trial then in progress. It was not the government but the witness who caused the claim of privilege. It is quite a different case when the court (Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L.Ed.2d 1920 (1972)), or the prosecutor (People v. Butler, 30 Mich.App. 561, 186 N.W.2d 786 (1971)), threatens a witness with perjury charges if he testifies for the defendant or if the prosecutor threatens a defense...