Tolliver v. United States, 11318.

• Decision Date: 14 October 1977
• Docket Number: No. 11318.,11318.
• Parties: Herbert TOLLIVER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

378 A.2d 679

Herbert TOLLIVER, Appellant, v. UNITED STATES, Appellee.

No. 11318.

District of Columbia Court of Appeals.

Argued June 21, 1977.

Decided October 14, 1977.

William H. Dowdy, Staff Atty., Public Defender Service, Washington, D. C., for appellant. Mildred M. Matesich, Public Defender Service, Washington, D. C., was on the brief for appellant.

Lillian A. McEwen, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease, and Regina C. McGranery, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, NEBEKER and MACK, Associate Judges.

NEBEKER, Associate Judge:

On appeal from convictions of armed robbery (D.C.Code 1973, §§ 22-2901, -3202), and carrying a pistol without a license (D.C. Code 1973, § 22-3204), appellant argues that his convictions should be reversed because the identification evidence used against him was insufficient, and the 18-month delay between the date of the offense and his indictment seriously prejudiced his ability to present a defense and thus denied him due process of law. We disagree and affirm the convictions.

The circumstances surrounding appellant's convictions were as follows. Shortly after midnight on March 3, 1974, Miss Patricia Ann Moore walked past appellant and codefendant Cornell Hall, who were standing on the street corner, and entered a telephone booth. As she began talking on the telephone with a Mr. Cook, appellant and Hall assaulted, robbed, and shot her. As the assailants were about to flee, Hall exclaimed, "Peanuts, let's get the hell out of here." Miss Moore subsequently recounted the events to Mr. Cook, who concluded, based on the name "Peanuts" and the description Miss Moore gave of her attackers, that appellant and Hall might be the perpetrators. Cook had been acquainted with them while he was a counselor at a local junior high school. The police constructed a photographic array, based upon this information, and included therein a photograph of appellant and of Hall. Three days after the offense, Miss Moore positively identified Hall from this array. Her identification of appellant, however, was tentative in that she could only say with respect to appellant's photograph that the person depicted had features similar to those of the second assailant. She was unable to make a positive identification of appellant because the photograph showed him as he appeared two years prior to the offense. Miss Moore, however, positively identified appellant at a lineup 18 months after the offense and at trial.

Viewing the evidence on appeal in a light most favorable to the government, we find sufficient evidence of identity to conclude that the identification of appellant could have been convincing beyond a reasonable doubt to a reasonable mind. Miss Moore had ample opportunity to view appellant as she passed him on the sidewalk and as she struggled with him at the telephone booth. Appellant was not masked and a street lamp provided sufficient illumination of his features. Her tentative identification of appellant from a photographic array was followed by a positive identification of him at a lineup and at trial. Significantly, appellant admitted being known by his friends as "Peanuts," the name one robber had called the other during the offense. Finally, appellant lived in the neighborhood where the offense occurred, and was seen in the vicinity of the robbery two weeks before the instant offense accompanied by his friend, Cornell Hall. Any discrepancies in the victim's description of appellant were thoroughly explored on cross-examination and during argument by...