Taylor v. United States

• Decision Date: 06 October 1982
• Docket Number: No. 81-123.,No. 81-51.,81-51.,81-123.
• Parties: Alphonso TAYLOR, a/k/a Alphonso Townes, Appellant, v. UNITED STATES, Appellee. Harvey TUCKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

451 A.2d 859

Alphonso TAYLOR, a/k/a Alphonso Townes, Appellant, v. UNITED STATES, Appellee.

Harvey TUCKER, Appellant, v. UNITED STATES, Appellee.

No. 81-51.

No. 81-123.

District of Columbia Court of Appeals.

Argued March 2, 1982.

Decided October 6, 1982.

A. Franklin Burgess, Jr., Public Defender Service, with whom William J. Mertens, Public Defender Service, Washington, D.C., was on brief, for appellant Taylor.

Russell F. Canan, appointed by the court, for appellant Tucker.

Regina C. McGranery, Asst. U.S. Atty. with whom Charles F.C. Ruff, U.S. Atty. at the time the brief was filed, John A. Terry, Asst. U.S. Atty. at the time the case was argued, and Gordon C. Rhea and E. Anne McKinsey, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before KERN, NEBEKER and FERREN, Associate Judges.

NEBEKER, Associate Judge:

Following a two and one-half day jury trial, appellants Alphonso Taylor and Harvey Tucker were both convicted of the armed robbery of John and Wanda Albert, D.C.Code 1981, §§ 22-2901, -3202, as well as carrying a pistol without a license. Id. § 22-3204. Appellant Taylor was individually convicted of assault with intent to kill while armed. Id. §§ 22-501, -3202. The case against Taylor rested on identifications by Wanda Albert and by two police officers who testified that they saw Taylor as he fled the scene of the crime. Taylor was arrested several days after the incident following photo and lineup identifications by the witnesses. The case against Tucker similarly rested on identifications by Wanda Albert and by two police officers who arrested him near the scene and only a few minutes after the crime. On appeal, appellants contend that (1) the identifications of appellant Taylor by two of the investigative detectives were impermissibly suggestive, (2) that the trial court improperly restricted defense counsels' cross-examination of two government witnesses, and (3) that the court abused its discretion when it excluded appellant Taylor's proffer of expert testimony on the asserted unreliability of eyewitness identification.¹ We affirm.

The government adduced the following evidence at trial. On October 11, 1979, John and Wanda Albert drove from Portsmouth, Virginia to Washington, D.C., to visit friends and to purchase marijuana. Prior to leaving Portsmouth, they withdrew several hundred dollars from their savings account which they divided between themselves.² Wanda Albert placed approximately $600 inside her blouse, $48 in her sock and a few dollars in her purse. John Albert carried about $50 on his person. Having "a couple of hours to kill" when they first arrived in Washington, the Alberts drove to a neighborhood where they "knew some people" and met a friend named "Weanie." The three individuals spoke for a while, drove to Weanie's home, and later walked to a neighborhood store. As they returned to Weanie's home, Taylor and Tucker approached and asked if anyone would like to buy some "barn" (Preludin). The three individuals continued walking without responding as Taylor and Tucker quickly turned and approached them from behind. Taylor pointed a gun at John Albert's head and ordered everyone into a nearby courtyard which was lighted from the street and a parking lot.

Wanda Albert, who was six months pregnant at the time, was told to sit on one of the benches in the courtyard. John Albert stood on her right and Weanie sat on her left. Taylor stood holding the gun about four or five feet directly in front of Wanda Albert while Tucker knelt on one knee about one and one-half feet from Wanda Albert and held a knife to her abdomen. When Taylor demanded money, Wanda Albert gave him money from her sock and change purse. John Albert gave the money he had in his coat pocket to Tucker. When the assailants demanded more money, John Albert remembered that he had $25 in his left pants' pocket. He mentioned the additional money, but as he reached into his pocket Taylor shot him in the chest. Tucker then removed John Albert's money while Taylor walked over to Wanda Albert, reached into her blouse, and removed the remaining $600, apparently without anyone saying anything further.

The assailants then demanded the Alberts' car keys and ordered John and Wanda Albert to their car. En route to the car one of the assailants dismissed Weanie saying, "We don't need you any more, brother."³ For unexplained reasons, Taylor and Tucker then exchanged weapons. Both sat in the front seat with Wanda Albert in the middle and John Albert in the rear seat.

Alerted by a report of a shooting, a police scout car arrived as the assailants were attempting to get the Alberts' car started. Noticing the cruiser, both men jumped from the car and fled. Wanda Albert followed Tucker out of the car, pointed at him, and shouted to Sergeant Charles McKoewn that she and her husband had been robbed and her husband shot. McKoewn gave chase. He arrested Tucker shortly thereafter and took him back to the scene of the crime. When Wanda Albert saw him, she exclaimed, "He's the one with the knife."⁴ A search revealed $25 stuffed in Tucker's left trouser pocket, and $20 in his wallet. Wanda Albert also gave a positive in-court identification of Tucker.

Meanwhile, Detective Joseph Schwartz and his partner, Detective Michael Fenske, responding to the same report, observed McKoewn pursuing Tucker less than two blocks from the scene of the shooting. Just as the sight of a uniformed officer chasing a suspect caught the detectives' attention, a second man suddenly darted in front of their cruiser. Detective Fenske had to apply the brakes sharply in order to avoid hitting the man. He fell a few inches from the front bumper of the car and something flew from his hand. He looked directly at the detectives for two or three seconds before resuming his flight. Both officers alighted and gave chase. Detective Fenske ran only a short distance before aborting his chase to return to the cruiser. He testified however, that he got a good view of the suspect's face as he lay on the ground beneath the headlights and looked directly up at the car. When Fenske returned to the cruiser, he found a knife near the place where the man fell. Detective Schwartz pursued the man for approximately twenty seconds to a well lighted area. Schwartz saw the fugitive's face several times as he turned to see if the detective was gaining on him. Officer Schwartz aborted the pursuit when he was called back to assist Sergeant McKeown with Tucker who had taken refuge in a nearby building. Neither Detective Schwartz nor Detective Fenske filed a report of the suspect's description. Although no fingerprints were removed from the knife recovered by Detective Fenske, Wanda Albert testified that the knife appeared to be that held by Tucker during the robbery.

In the meantime, John Albert managed to get out of the back seat of the car, but collapsed to the ground. Officers McKeown and Schwartz returned with Tucker before the ambulance arrived, but John Albert was not able to identify him as one of the assailants. John Albert could only say that Tucker's leather coat appeared to be the same as that of one of the robbers. At the trial, John Albert testified that Tucker was standing about ten feet away at the time of the show-up, and that his face was "very vague[]." John Albert was never able to positively identify Tucker as one of the assailants.

On the day following the robbery and shooting, Detective Schwartz received an anonymous telephone tip that the gunman was Alphonso Taylor, appellant Tucker's half-brother. Schwartz obtained a photograph of Taylor from the police files and positively identified him as the man who fell in front of the car. Schwartz placed Taylor's photograph in an array which he showed to Wanda Albert that evening. She viewed the photo array three or four times, and each time she stopped at two photographs, those of appellant Taylor and another individual. Finally, Detective Schwartz pointed at Taylor's photo and asked, "What about this photograph?" Wanda Albert responded: "I'm pretty sure it's him. With his hair longer and with that rain hat, it would be him. I'd have to see him in person." On October 23, Wanda Albert attended a lineup at which she identified Taylor within 30 seconds. She also identified him at trial. When shown a photograph of the lineup containing Taylor, John Albert chose the wrong individual. As with Tucker, John Albert was unable to make any positive identification of Taylor.

Detective Fenske was not on duty on the day Schwartz received the telephone tip or the next day, Saturday. Detective Schwartz was off duty the following two days. On Tuesday morning, October 16, Detective Schwartz walked past the desk of Detective Fenske who was talking on the telephone, and dropped a photograph of Taylor in front of Fenske. Schwartz said, "Look at this." Interrupting his conversation, Fenske stated, "That's the person that fell in front of our cruiser, the same guy we chased." Fenske recognized Taylor again when he was arrested the following morning. However, at trial Fenske was unable to make a positive identification of Taylor.⁵ The $600 taken from Wanda Albert was never recovered.

Appellant Taylor asserts error in denial of the suppression motion in that the identifications by Detectives Schwartz and Fenske after viewing only the single photograph of Taylor were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); accord, e.g., Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); Sheffield v. United States, D.C. App., 397 A.2d 963 (1979); Ellis v. United States, D.C.App., 395 A.2d 404 (1978); Graham v. United States, D.C.App., 377 A.2d 1138 (1977); Marshall v. United States,...