United States v. Anderson, 72-2074

• Decision Date: 04 January 1974
• Docket Number: No. 72-2074,72-2113.,72-2074
• Citation: 490 F.2d 785,160 US App. DC 217
• Parties: UNITED STATES of America v. James F. ANDERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

160 US App. DC 217, 490 F.2d 785 (1974)

UNITED STATES of America v. James F. ANDERSON, Appellant.

Nos. 72-2074, 72-2113.

United States Court of Appeals, District of Columbia Circuit.

Argued September 26, 1973.

Decided January 4, 1974.

Matthew F. Medeiros, Washington, D. C., with whom John S. Koch, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.

Paul L. Friedman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Charles E. Brookhart and Barry W. Levine, Asst. U. S. Attys., were on the brief, for appellee.

J. Patrick Hickey, Washington, D. C., filed a brief on behalf of Public Defender Service as amicus curiae, urging reversal.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

ROBB, Circuit Judge:

Appellant Anderson was indicted in eight counts. The first six counts alleged armed robbery, robbery and assault committed against Marion Hunter and Eugenia Brennan on March 11, 1972. The seventh and eighth counts charged Anderson with assault to commit robbery while armed and assault to commit robbery on April 1, 1972, the victim being Missouri Rosebrough. The District Court having granted a motion to sever, 352 F.Supp. 33 (D.D.C.1972), Anderson was tried on counts 7 and 8 on September 11, 1972, and found guilty of assault with intent to commit robbery while armed. For this offense he was sentenced to a term of two to six years, and he appeals. (No. 72-2074).

On November 6 Anderson was tried on the remaining six counts and found guilty on two counts of armed robbery and two counts of assault with a dangerous weapon. The District Court imposed sentences of one to three years on each count, the sentences to run concurrently with each other, but consecutively to the sentences previously imposed on counts 7 and 8. He appeals. (No. 72-2113). The two cases have been consolidated in this court. With the permission of the court the Public Defender Service has filed a brief amicus curiae in No. 72-2113, urging reversal of the conviction on the charges of armed robbery and assault on March 11, 1972.

No. 72-2074 — The September 11 Trial (The Missouri Rosebrough Case — Offenses of April 1, 1972)

Prior to selection of the jury, the prosecutor, at the request of appellant's counsel, made a proffer concerning the identification of appellant by Mrs. Missouri Rosebrough: "She told the police right off that it was Anderson, that she knew him from being in the apartment building, and the police then went upstairs, made the arrest and brought him down.... And she made the identification." Appellant's counsel responded, "Mr. Anderson, when he testifies, he will acknowledge that he knows her and does live in the same building." He also stated: "I'm satisfied that my investigation would support the identification of Miss sic Missouri Rosebrough.... I proffer this to the Court to avoid the need for a full hearing." The court ruled that the witness could make an in-court identification of appellant because she had a source independent of the on-the-scene viewing, "particularly the matter of his being a tenant in the building known to her".

Mrs. Rosebrough testified that she lived on the first floor of an apartment house at 1420 Clifton Street, N.W., and the appellant lived on the third floor. For a year she had been seeing him around the apartment; "he would often be standing, every day and every night when I come from work, I would see him standing out in the hall." Shortly after midnight on April 1, 1972 she and Mrs. Alberta Stephens were walking through an alley to the back entrance of the apartment building when Mrs. Rosebrough noticed Anderson walking behind them. She looked back several times, recognized Anderson, and said, "Oh, that's the Anderson brother." When she reached the apartment door and was about to take out her key Anderson walked up. She thought he was going to the apartment but instead he produced a pistol and demanded her money. She said, "What money?" and then "I just hauled off and hit him with my fist and hollered, and he ran down the steps and then went on down the alley."

Mrs. Rosebrough testified that while the attempted robbery was in progress she was no more than three feet from Anderson, that there was a light on the back porch and "real bright" parking lights in the alley, and she was able to get a good look at Anderson's face.

After the attempted robbery, because Mrs. Rosebrough was extremely nervous, she stayed in her apartment all night. "I couldn't call the police because I was just too nervous, and I couldn't know whether he came back in the front door or what, and if I called the police I would have had to leave my apartment from the back and walked to the front". She finally did call the police, and after they arrived around 9:00 A.M. she described to them what her assailant was wearing: a black shirt, a trench coat and dark trousers.

Acting on Mrs. Rosebrough's report the police went to Apartment 308, looking for James Anderson, found him dressed in a black shirt and dark trousers, and took him down in the elevator. When the elevator reached the first floor Mrs. Rosebrough was standing nearby in the hall and the police asked her if she knew Anderson. She replied, "This is the guy who robbed me — who tried to rob me". All this evidence came in without objection.

The testimony of Mrs. Alberta Stephens corroborated Mrs. Rosebrough's account of the assault and attempted robbery, but Mrs. Stephens was unable to identify the appellant.

The defense was an alibi, that Anderson had returned to his apartment at 9:00 o'clock in the evening on March 31 and had not left until he was arrested at 9:00 the following morning. He admitted that he knew Mrs. Rosebrough because she lived in the same apartment building. On cross examination the prosecutor confronted Anderson with a handwritten statement given to the police at the time of his arrest, in which he said he had not arrived home until 12:55 A.M. on April 1. Anderson admitted that the statement and the signature were his.

Notwithstanding the concession of trial counsel, and the absence of any objection at trial, appellate counsel now contends that it was plain error to admit evidence of the identification made by Mrs. Rosebrough at the time of Anderson's arrest. Appellate counsel argues that this confrontation was impermissibly suggestive, citing McRae v. United States, 137 U.S.App.D.C. 80, 420 F.2d 1283 (1969). Counsel also contends that the confrontation violated the police regulation providing: "If a suspect is arrested within 60 minutes of an alleged offense and within an area reasonably proximate to the scene of the crime, he shall be returned to the scene of the offense ... for identification of the suspect." The argument is that Anderson was not arrested within sixty minutes of the alleged offense.

We think the appellant's attack on the identification must fail. The vice of a one-man confrontation is of course that it may be suggestive and increase the likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In this case, however, Mrs. Rosebrough knew Anderson well so there was no danger of mistaken identification. The obvious purpose of the confrontation was to make certain that the police had arrested the man named to them by Mrs. Rosebrough.

The police regulation cited by the appellant is not a rule of evidence, and in any event does not fit the facts of this case.

The defendant's handwritten statement, used to impeach his testimony at trial, was destroyed by fire in the office of the Clerk of the United States District Court, and a copy cannot be found. The appellant argues that the loss of this paper requires reversal of his conviction. Since the statement was not introduced in evidence at the trial, but was used only to impeach the appellant's testimony, there is nothing to his point.

In charging the jury the district judge said that an...