Williams v. United States, 10108.

• Decision Date: 05 January 1978
• Docket Number: No. 10200.,No. 10108.,10108.,10200.
• Parties: Kirk D. WILLIAMS, Appellant, v. UNITED STATES, Appellee. Melvin 0. JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1

382 A.2d 1

Kirk D. WILLIAMS, Appellant, v. UNITED STATES, Appellee.

Melvin 0. JONES, Appellant, v. UNITED STATES, Appellee.

No. 10108.

No. 10200.

District of Columbia Court of Appeals.

Argued October 13, 1977.

Decided January 5, 1978.

Richard A. Rosen, Public Defender Service, with whom Mildred M. Matesich and Frederick H. Weisberg, Public Defender Service, Washington, D.C., were on the brief, for appellant in No. 10108.

Charles F. Stow, III, Springfield, for appellant in No. 10200.

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

Before NEBEKER, YEAGLEY and FERREN, Associate Judges.

FERREN, Associate Judge:

This case presents issues of trial court error in (1) permitting police "mug shots" to be received into evidence against appellants, and (2) refusing to sever their trials. We hold, on the authority of United States v. Barnes, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966), that the admission of the photographs into evidence was reversible error. We further hold that the trial court did not abuse its discretion in denying the requested severance.

I

Appellants were charged with and convicted of rape (D.C. Code 1973, § 22-2801), rape while armed (D.C. Code 1973, §§ 22-2801, -3202), sodomy (D.C. Code 1973, § 22-3502), robbery (D.C. Code 1973, § 22-2901), and armed robbery (D.C. Code 1973, §§ 22-2901, -3202).¹ These charges were based upon the account of events by the complainant.

A. According to complainant, at approximately 2:30 p. m. on March 26, 1974, she took a bus to the corner of Sixth and East Capitol Streets, intending to meet a friend and then embark on a job-hunting expedition. Not finding her friend at that location, complainant began to look for the friend's house. Two young men, appellants Williams and Jones, approached to offer assistance. Hoping to expedite the search, complainant accompanied them "up the street and around the corner" to Williams' home, where she asked to use the telephone called and spoke with her friend, and then turned to find Jones pointing a sawed-off shotgun at her. (She later deduced that the gun had been concealed inside a brown shopping bag carried by Jones.)

Complainant testified that the appellants forced her, as she struggled, upstairs and into a bedroom, where they struck her (causing an earring to fall off), raped her and committed sodomy, and robbed her of her watch, seven dollars and an identification card. During the course of this attack, appellant Williams departed once to investigate a knock at the front door of the house. After completing these crimes, appellant Williams threatened to kill complainant with a drug overdose. Soon thereafter, one of the appellants gave her forty cents for bus fare home, and the three proceeded downstairs, encountering and greeting Williams' sister. Complainant left her name and her mother's phone number on a piece of paper, and appellants escorted her outside.

Complainant further testified that she took numerous cleansing measures, called to inform her sister that she had been "robbed" (and that she would tell all about it later), and then walked to her mother's home. Her sister's call to the police precipitated an investigation. Complainant led the police to Williams' house, telling them that she had lost her earring and forgotten her pantyhose during the course of events there. She also turned over some of her clothing as evidence, submitted to examination at George Washington University Hospital, and positively identified Williams and Jones from police photographic arrays and, later, at lineups. The results of the medical examination were inconclusive as to any recent intercourse, forced or consensual, or as to any struggle; the doctor found no sperm and only a few superficial scratches on her person. A search of Williams' house, pursuant to a warrant, yielded an earring and a pair of pantyhose.

B. Appellant Williams told a different tale, raising a consent defense at trial. He admitted only to having relations with a willing complainant and denied committing sodomy or robbery.

Williams testified, more particularly, that he did meet complainant at the corner; that she asked him where a certain address was located and where she could find a phone; that he offered his phone, and she accompanied him to his home; that en route they encountered his friend appellant Jones (whom he also had seen briefly that morning), and that he stopped to converse with Jones for ten minutes. Williams further testified that he, alone, entered his home with the complainant, helped her place a call to her friend, smoked some marijuana with her, and then had intercourse with her. He said that afterwards she was angered by the apparent disappearance of her watch and accused him of thievery. He then informed her that she must leave because he was expecting a friend. She wrote her name and phone number on a piece of paper, for purposes of a possible future meeting, and departed.

C. Appellant Jones' story was still different. He denied ever seeing the victim. With the aid of testimony from his mother and a girlfriend, he presented an alibi defense. He specifically denied seeing appellant Williams on the afternoon of the 26th, although he confirmed Williams' testimony that they had met briefly during the morning.

D. Jones surrendered after hearing that the police wanted him. Williams attempted to elude the police, but eventually was apprehended on the roof of his home. Jury trial began January 23 and ended January 27, 1975, with verdicts of guilty as to both appellants on all counts. On April 8, 1975, the trial judge sentenced Jones to ten years under the Federal Youth Corrections Act, 18 U.S.C. § 5010(c) (1970).² On October 2, 1975, the judge sentenced Williams to fifteen years on each count, to run concurrently under the F.Y.C.A. Both have appealed.³

II.

During the course of the trial, over objections by counsel for appellant Williams, the court permitted the government to introduce into evidence police "mug shots" of both appellants (with the numbers blacked out) which complainant had selected from a photographic array.⁴ Earlier in the trial, complainant and an investigating officer had testified regarding the conduct of the photographic identification session and the resulting identification of appellants.⁵

Appellants now contend that admission of the "mug shots" had no probative value and created serious prejudice by insinuation of past criminal activity. We agree, for we find these cases directly within the preview of the prohibition established by United States v. Barnes, supra, and its progeny.⁶

A. In Barnes, the trial court permitted the prosecutor to introduce defendant's "mug shot" into evidence after defense cross-examination of the government eye-witness had "focused on identification," including the fact that she had "initially identified appellant from photographs shown to her by the police." Id. 124 U.S.App.D.C. at 319, 365 F.2d at 510. The photograph at issue was characterized by the appellate court as "a typical `mug shot' from a police department `rogues' gallery,' . . . two close-up shots of appellant's face side by side, one full face and one a profile photograph." Id. The prison numbers and other writing on the photo had been concealed by tape and pieces of paper.

The Barnes court observed that unless a criminal defendant takes the witness stand or otherwise puts his or her character in issue, a criminal record is inadmissible, either directly or indirectly by way of "mug shot" photographs. Such photographs are so familiar, from "wanted" posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic. [Id. 124 U.S. App.D.C. at 319-20, 365 F.2d at 510-11.]

The court rejected the "rudimentary" attempt to disguise the nature of the pictures by using the overlays of paper and tape, noting that the inevitable emphasis therefrom "may well have heightened the importance of the picture and the prejudice in the minds of the jury." Id. 124 U.S.App.D.C. at 320, 365 F.2d at 511. The court held the error reversible because the prejudice from presentation to the jury was "too substantial for [the court] to ignore," id. 124 U.S. App.D.C. at 321, 365 F.2d at 512, especially in the absence of any legitimate and demonstrable counterbalancing government need. (Another photograph, perfectly adequate to bolster identification, had also been admitted.)

More recently, in United States v. Harrington, 490 F.2d 487 (2d Cir. 1973), the Second Circuit has elaborated the criteria applicable to submission of actual "mug shots" to the jury. From an analysis of Barnes and later cases, the Harrington court

perceive[d] three prerequisites to a ruling that the introduction of "mug shot" type photographs does not result in reversible error:

1. The government must have a demonstrable need to introduce the photographs; and

2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and

3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. [Id. at 494-95.]

We find Barnes controlling and Harrington instructive on the pertinent standards. We therefore turn to their application to the facts in each of the present cases.

B. In appellant Williams' case, the government asserts that its right to demonstrate a fair pretrial identification satisfied the first Harrington criterion, "demonstrable need," because

[t]he importance that [the] jury know of the reality of a fair pretrial identification [e. g., while viewing "mug shots"] weighs with more substance on the scales of justice than speculative...