US v. Hunter

• Decision Date: 24 April 1997
• Docket Number: No. 96-CO-756.,96-CO-756.
• Citation: 692 A.2d 1370
• Parties: UNITED STATES, Appellant, v. Thomas HUNTER, Appellee.
• Court: D.C. Court of Appeals

692 A.2d 1370

UNITED STATES, Appellant, v. Thomas HUNTER, Appellee.

No. 96-CO-756.

District of Columbia Court of Appeals.

Argued February 25, 1997.

Decided April 24, 1997.

Gregg A. Maisel, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black, and Amy J. Conway, Assistant United States Attorneys, were on the brief, for appellant.

John Thomas Kenney, Syracuse, NY, appointed by the court, for appellee.

Before FERREN, STEADMAN and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

The United States appeals from an order granting Thomas Hunter's motion to suppress the eyewitness identification of him by Richard Jones and William Juame, who were the two victims of a robbery. The government contends that the trial judge applied an erroneous legal standard to the evidence of record. We agree and reverse.

I. THE EVIDENCE

A grand jury indicted Hunter on one count of robbery and one count of attempted robbery. See D.C.Code §§ 22-2901, -2902 (1996). The United States proposed to introduce at trial testimony that both of the complaining witnesses identified Hunter at a showup a few minutes after the robbery. The prosecutor also intended to elicit from Juame an in-court identification of Hunter. Hunter filed a pretrial motion to suppress all of these identifications.

The testimony at the hearing on that motion¹ revealed that on September 28, 1995, at approximately 6:30 p.m., Jones, a student at Howard University, was driving his car near the intersection of Seventh and P Streets in northwest Washington, D.C. His friend Juame, a bank teller, was riding in the passenger seat. The two men were on their way to get a bite to eat. Jones pulled over to the side of the road to retrieve an object which had slipped under the seat.

Before Jones and Juame could resume their journey, four young men, all strangers to the complainants, approached the now-stationary vehicle. One of the men, to whom we refer as Robber No. 1, stood outside the door on the passenger's side. A second man, hereinafter Robber No. 2, positioned himself on the driver's side. Jones and Juame were thus trapped inside the vehicle as they nervously awaited further developments.

Following some inconsequential conversation, Robber No. 2 reached into the vehicle and attempted to take the keys out of the ignition. When Jones sought to hold on to the keys, Robber No. 1 pressed a hard object against Juame's head and demanded money. Juame denied that he had any money. Robber No. 1 patted Juame down, and he then opened the right rear door of the car and extracted a white hooded windbreaker jacket belonging to Jones. In the meantime, Robber No. 2 took from Jones a wallet containing approximately $100. The complainants told their unwelcome visitors that there were police officers in the parking lot of a nearby Giant Food supermarket, and the robbers then fled with their loot.

Having succeeded in retaining possession of his ignition key, Jones immediately drove into the supermarket's parking lot. He and Juame reported the robbery to an off-duty police officer who was moonlighting as a security guard. The two men provided the officer with descriptions of two of the robbers. Juame told him that Robber No. 1— the man who had stood outside the front passenger door of the car—was a young black man with braids, and that he was wearing jeans and a white t-shirt with an "eight-ball, sort of like in the center of his shirt."

Based on the information provided by Jones and Juame, the officer immediately broadcast descriptions of two of the robbers. A few minutes later, one of the officers who had responded to the lookout sighted a man apparently fitting the description of Robber No. 1 in an alley half a block from the supermarket. The suspect attempted to elude the pursuing officers but, following a brief chase, he was apprehended. When taken into custody, the fleeing man was wearing a white t-shirt. The front of the shirt was adorned with a design containing the letter "B" inside a circle, followed by the letters "o-s-s" in smaller print. A police detective testified that, at least at first glance, the "B" looked like an "8". The man who was wearing this t-shirt was Thomas Hunter.

The officers soon apprised Jones and Juame that two suspects had been taken into custody and that they would be displayed to the complainants at "like a driveby" to determine if Jones or Juame could recognize either of them. The officers transported Jones and Juame together in a police cruiser to the intersection of Seventh and Q Streets, N.W., where the two suspects were being detained. The first suspect was displayed to the two victims, but both men stated that he was not one of the robbers; indeed, neither Juame nor Jones had ever seen him before. When the second suspect was displayed, however, Juame promptly identified him as Robber No. 1. Jones did the same a few seconds later.

The identifications of Hunter were effected in daylight, approximately ten minutes after the robbery, and within a block of the location where the crime occurred. Juame stated that he had recognized Hunter as the police cruiser was arriving on the scene, before Hunter was formally displayed to the victims. Juame testified that he was a "hundred percent" certain that Hunter was Robber No. 1. He was positive about his identification because Hunter still "had on this white t-shirt with this eight-ball on it" and because Juame "noticed his face and his hair, things like that."

Jones also told the police that Hunter was Robber No. 1. According to Jones, the second man displayed to him at the driveby "looked like the same person as Robber No. 1, the same slender build, same complexion, same shirt." Jones described that shirt as "the white shirt with the eight-ball on it." Jones was asked whether the man whom he identified at the showup differed in any respect from Robber No. 1, and he responded with a simple "no."

Jones testified that before he made his identification of Hunter, the officers returned his stolen jacket to him. Jones was informed that the jacket had been found in an alley. Jones had also heard over the police radio that officers were chasing someone, and he knew that they had stopped a suspect in an alley. Jones did not know, however, which of the two suspects had been in the alley. Jones also testified that he did not believe that his identification of Hunter as Robber No. 1 was swayed by Juame's identification a few seconds earlier.

II. THE TRIAL JUDGE'S RULING

At the hearing on Hunter's motion to suppress, the prosecutor initially intended to rest after having established, through the testimony of two police witnesses, that the complainants had identified Hunter under the circumstances described above. The judge commented, however, that "it becomes very problematical for the court to make a ruling when the evidence is as sketchy as this evidence has been." In light of the judge's reaction, the prosecutor called two additional police witnesses, and she completed her case with the testimony of Jones and Juame.

After the parties rested, the judge conducted a lengthy colloquy with the attorneys in which she explained her view of the evidence and of the applicable legal principles. The judge found that the circumstances of Juame's identification of Hunter were "no more suggestive than any other on-the-scene identification that typically happens soon after an incident." The prosecutor argued that this finding required the judge to deny the motion to suppress Juame's identification, but the judge thought that this was wrong:

It seems to me even without undue suggestivity in the one-on-one show-up we know from the Court of Appeals that there is inherent suggestivity in that process, but it will be permitted to be admitted in evidence if the court is satisfied that there are sufficient indicia of reliability to avoid irreparable risk of misidentification.

I'm not sure we have got those indicia of reliability here.

The judge's prime concern appeared to relate to the perceived discrepancy between the complainants' testimony that Robber No. 1 was wearing a t-shirt with an eight-ball and the police testimony that the emblem was actually a large "B" followed by "o-s-s" in small letters:

My concern is that the man closest to that t-shirt, who had the best opportunity to see what was on it, and the guy with the second best opportunity to see what was on it ...—Mr. Juame and Mr. Jones— are both unshakable in saying that it was an eight-ball. And just as unshakable in his description of what the Defendant was wearing is Officer Hambrick but also Detective Johnson in stating that was no eight-ball on Mr. Hunter's shirt.

The judge rejected as inconclusive the positive character of Juame's identification of Hunter; she said that "certainty all by itself is not enough." Pointing out that the complainants had both stated that the first suspect displayed to them was not one of the robbers, the prosecutor argued that this circumstance significantly rebutted Hunter's claim that the showup was unduly suggestive. The judge would have none of it:

That proves nothing, it seems to me, it proves absolutely nothing.... The real test would be would he have been able to pick him out in a lineup without the eight-ball shirt on.

The judge then ruled that the testimony of Juame and Jones was not sufficiently reliable to permit either witness to testify to his identification on the scene or to identify Hunter in the courtroom. Noting the absence of an arrest photograph of Hunter,² the judge concluded that the prosecution had failed "to somehow explain why Hunter wasn't wearing an eight-ball t-shirt but the robber was." The judge stated that this was a "critical deficiency ... in the government's proof here today on the issue of the reliability of the identification." The judge also held as follows:

Certainly there was impermissible suggestivity in the

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