Towles v. United States, 12982.

• Decision Date: 13 March 1981
• Docket Number: No. 12982.,12982.
• Citation: Towles v. United States, 428 A.2d 836 (D.C. 1981)
• Parties: Duane A. TOWLES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

428 A.2d 836

Duane A. TOWLES, Appellant, v.UNITED STATES, Appellee.

No. 12982.

District of Columbia Court of Appeals.

Argued October 12, 1978.

Decided March 13, 1981.

COPYRIGHT MATERIAL OMITTED

Richard S. Bromberg and Roger H. Moore, Washington, D. C., appointed by the court, for appellant.

Charles L. Hall, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., when the brief was filed, and John A. Terry, Michael W. Farrell and Harry R. Benner, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KELLY and HARRIS, Associate Judges.

HARRIS, Associate Judge:

This is an appeal from convictions after a trial by jury of first-degree murder, D.C. Code 1973, § 22-2401; two counts of attempted robbery while armed, id.,§§ 22-2902, -3202; and carrying a pistol without a license, id.,§ 22-3204.Asserted as errors are the following: (1)the trial court's denial of a motion to dismiss the charges for violation of appellant's right to a speedy trial; (2) certain rulings of the trial court with respect to the government's identification evidence, namely, (a) a denial of appellant's motion to suppress allegedly suggestive photo array and lineup identifications, (b) a refusal to permit appellant to introduce certain evidence at the identification suppression hearing, and (c) a refusal to permit appellant to be absent during the suppression hearing; (3)the trial court's failure to give an immediate cautionary instruction to the jury when the government sought to impeach its own witness by means of a prior inconsistent statement, and (4)the court's subsequent allowance of testimony, over defense objection, as to another's out-of-court statement which formed the basis for the witness' prior inconsistent statement to the police.

While we find no merit in appellant's other claims, we conclude that the trial court committed plain error in failing to give a cautionary instruction.¹We reverse on that ground and remand the case for a new trial.

I

Dr. Patricio Paez and Andre Colpitts left a Washington restaurant at around 11:00 p. m. on May 21, 1976.As the two were passing through a poorly-lit alley towards their parked car, two black male youths suddenly accosted them from behind.One of the youths, brandishing a pistol, demanded that the two men hand over their wallets.As Dr. Paez reached to comply, the gunman opened fire — killing Mr. Colpitts and wounding Dr. Paez.

The two assailants fled the scene.²As they ran out of the alley, they passed by a car being driven by Rudolph Singleterry.Singleterry was turning into the alley at the time and got a brief look at the offenders as they came through the field of his car's headlights.

Due to the poor lighting conditions and the brevity of the encounter, Dr. Paez was not able to get a good look at his assailants' faces, and could relate to investigating officers only a general description of their clothing, body builds, and the fact that they were "very young."He told Metropolitan Police Department DetectiveWilliam Wood a few days after the shooting that he probably would not be able to recognize the assailants again.Singleterry, on the other hand, maintained that he had had a good view of the assailants for about ten seconds as they passed in front of him while they were illuminated by the headlights of his car.

A.The Suppression Hearing

On June 29, 1976, Detective Wood showed a photo array (14 front and side view photos) to Singleterry.It is possible that Detective Wood told Singleterry to "pick out two" of the photographs from the group.Appellant claims this statement made the photo array impermissibly suggestive.Singleterry picked out a photograph of appellant, and also selected one of another person who was not involved in the crime.Singleterry indicated that while he was not certain of the photo of the other person, he was certain of the photograph of appellant, as it was the latter who had passed by the driver's side of his car on the night of the crime.

On July 26, 1976, some nine weeks after the crime, both Paez and Singleterry attended a lineup which included appellant.Again, Singleterry picked out two persons — appellant and a police officer.Again he stated that he was sure of appellant but was not certain of the other one.Detective Wood then told Singleterry that the person he had identified with certainty (appellant) was the prime suspect and that the other one he had chosen was not.Dr. Paez also was able to identify appellant in the lineup as the gunman.He based his identification not on facial appearance, but on appellant's peculiar body movements.

Appellant cites several features of the lineup which allegedly made the procedure impermissibly suggestive and hence suppressible.Initially, appellant points to the fact that at least six of the ten lineup subjects were visibly older than appellant — with reference to Dr. Paez' original description of the assailants as very young.In addition, appellant claims that several of the subjects differed obviously from appellant in stature, build, and the presence of facial hair.Finally, it is claimed that appellant improperly was highlighted by virtue of his placement at the center of the line (along with one other subject in the line of ten), his being assigned identification shield number one, and his wearing a white tee-shirt.(One other subject was a wearing a white tee-shirt.)

At the suppression hearing the court considered the evidence as to the alleged suggestivity of the pretrial identification procedures.The trial judge examined photographs of the lineup.He refused appellant's proffer of further evidence allegedly bearing on the suggestivity issue.Specifically, appellant wished to present (1) another man who had seen the assailants fleeing, but who had not identified appellant at the lineup, and who would testify to the disappointment shown by the police at his "unsuccessful" try at identification; (2) a police employee who would give the actual ages of all of the lineup subjects; and (3) a videotape of the lineup proceeding.The trial court concluded that this proffered evidence would be irrelevant and/or cumulative.

In addition, appellant challenges the trial judge's insistence that appellant be present during the suppression hearing regardless of his desire to waive his right to be present.The court took the position that appellant had to be present so that there could be a determination of the witnesses' ability to make in-court identifications.Both witnesses made positive identifications of appellant at the hearing.

The court denied the motion to suppress the pretrial identifications, ruling that they — as well as in-court identifications — would be admissible.

B.The Trial

The government, in preparing its case against appellant, had obtained a statement from Hervie Hunter directly inculpating himself and appellant.Hunter and two other youths, in separate juvenile proceedings, already had been convicted of participation in this crime.The essence of Hunter's statement to police was that appellant was the fourth person involved — with appellant and a second youth as the actual assailants, while the other two (including Hunter) acted as lookouts.

At trial, however, when the government called Hunter to corroborate his pretrial statement, he denied having seen appellant on the evening of the crime at all.Claiming surprise, the prosecution requested and was given leave to impeach the witness by means of his prior inconsistent statement.Appellant's counsel did not at that point request that the court give the jury a cautionary instruction regarding the limited purpose for which the prior statement was to be introduced, and the court did not give such an instruction sua sponte.(A cautionary statement was included in the court's lengthy general charge to the jury at the close of the evidence.)The prosecutor confronted Hunter with virtually his entire previous statement, piece by piece, and Hunter steadfastly denied its truth.When the government pressed Hunter as to whether he was disavowing his prior statement out of fear of reprisal by appellant's family, Hunter at first answered in the negative, and then admitted some fear.Finally, he repeatedly denied any such fear, and denied the truth of his prior statement.

On cross-examination, appellant's counsel, seeking to further undercut the credibility of Hunter's prior statement, elicited from the witness that he had given the statement to police in return for a promise of leniency in sentencing, and that he had picked up the inculpatory information on appellant"off the street" — that he in fact had no personal knowledge of the crime.The prosecution followed up on redirect by inquiring where Hunter had gotten this "off the street" version of the crime.The witness responded that he had heard the story from a Mr. Battle.Counsel then proceeded to draw from the witness (over appellant's hearsay objection) the details of what Battle supposedly had told him.In this way the government succeeded, in effect, in getting virtually the entire inculpatory statement before the jury for a second time — without any cautionary statement having been given.Finally, the text of Hunter's statement was admitted into evidence for the jury's consideration.

After considering all of the evidence, including the pretrial and in-court identifications by Paez and Singleterry, and the pretrial statement and in-court testimony of Hunter, the jury found appellant guilty.

C.Speedy Trial

The crimes were committed on May 21, 1976; appellant was arrested on July 13, 1976.He was presented the following day, when bond was set at $100,000.After the denial of several defense motions over the next few months (motions to obtain a transfer of place of detention, to obtain release in the custody of defendant's mother, and to obtain a reduction in the amount of the...