Zanders v. US, 91-CF-1394

• Decision Date: 20 June 1996
• Docket Number: No. 91-CF-1394,91-CF-1465 and 94-CO-1558.,91-CF-1394
• Parties: Leonardo E. ZANDERS, Appellant, and Stanley D. Harris, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

678 A.2d 556

Leonardo E. ZANDERS, Appellant, and Stanley D. Harris, Appellant, v. UNITED STATES, Appellee.

Nos. 91-CF-1394, 91-CF-1465 and 94-CO-1558.

District of Columbia Court of Appeals.

Argued March 4, 1996.

Decided June 20, 1996.

Walter S. Booth, Bethesda, MD, appointed by this court, for appellant, Zanders.

Mack E. Davis, appointed by this court, for appellant, Harris.

Thomas J. Tourish, Jr., Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and June M. Jeffries, Assistant United States Attorneys, were on the brief, for appellee.

Before KING, and RUIZ, and REID, Associate Judges.

REID, Associate Judge:

After a jury trial in October 1991, appellants Leonardo Zanders and Stanley Harris were convicted of: (1) robbery, in violation of D.C.Code § 22-2901 (1989 Repl.); (2) robbery of a senior citizen, in violation of D.C.Code § 22-3901(a) (1989 Repl.); (3) credit card fraud, in violation of D.C.Code § 22-3823(d)(2) (1989 Repl.); (4) one count each of forgery and uttering, in violation of D.C.Code §§ 22-3841 (1989 Repl.) and 3842(b) (1989 Repl.); and (5) first degree theft, in violation of D.C.Code, §§ 22-3811 (1989 Repl.) and 3812(a) (1989 Repl.). Zanders was sentenced to consecutive terms of six to eighteen years for robbery of a senior citizen, three to nine years for robbery, one year for credit card fraud, two to six years for first degree theft, and one to three years each for forgery and uttering (both sentences to run concurrently). Harris received the same sentences, except that with respect to credit card fraud a term of four months to one year was imposed. Zanders and Harris filed timely appeals.

Harris contends that: (1) "the evidence was constitutionally insufficient to support his convictions"; (2) his legal representation was constitutionally deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and (3) the show-up identification violated his due process rights because it was impermissibly suggestive and unreliable. Zanders contends that: (1) the trial court erred in denying his motion for judgment of acquittal based on the insufficiency of the evidence against him; (2) a variance between the indictment and the government's proof at trial violated his due process rights; and (3) prosecutorial impropriety "substantially prejudiced his right to a fair trial." We conclude that the evidence was insufficient to support Zanders' and Harris' convictions for robbery and robbery of a senior citizen; but that the evidence was sufficient to sustain their convictions for first degree theft, credit card fraud, and forgery and uttering. Moreover, we reject Harris' contentions relating to his legal representation and the show-up identification. Similarly, we reject Zanders' variance and prosecutorial impropriety arguments.

FACTUAL SUMMARY

On October 20, 1990, seventy-nine year old Dr. Raymond Sokolov took the Metro subway en route to a medical meeting near the Foggy Bottom Metro station. While he was descending the escalator at the Metro Center station to change trains to get to the Foggy Bottom station, he encountered a young man at the bottom of the escalator who had dropped several items and who was blocking egress in the process of picking them up. Persons on the escalator behind Dr. Sokolov began to pile up behind him and put pressure on his back. The young man gathered all the items, walked off and joined a friend. When Dr. Sokolov reached the Foggy Bottom station exit, he discovered that his wallet was missing. After reporting the loss, he concluded that his pocket had been picked during the encounter on the escalator at Metro Center. Dr. Sokolov was wearing a buttoned and belted trench coat which had a vent or a slit in the back. He testified that his wallet was in his left side pocket.¹ Among the items in his wallet was a Visa credit card, and between $200 and $300 in cash.

Dr. Sokolov described the young man at the bottom of the Metro Center escalator as tall, about five feet ten inches to six feet; neatly dressed in casual clothing; between the ages of twenty and thirty, and African American. The young man never touched him and he did not get a good look at him. Dr. Sokolov was not asked to provide an in court identification of either Zanders or Harris. However, he was asked whether he had given permission to either Zanders or Harris to use his credit card. He replied "no." The Metro Transit police officer who took the report from Dr. Sokolov, Officer Gregory Novotny, testified at trial that Dr. Sokolov had described the young man as a Black male, five feet ten inches, slender, and had provided no clothing description. Dr. Sokolov described the person who walked off with the young man only as a Black male. According to his testimony, Dr. Sokolov took the subway sometime between 8:30 and 9:00 a.m.²

At 8:24 a.m., a gentleman registered as Raymond Sokolov at the Holiday Inn, Crown Plaza located at 775 12th Street, N.W. in proximity to the Metro Center subway station. He indicated that the room was for two persons, and was assigned to room 1429. Pamela Saunders, a front desk clerk who did not register the gentleman but who was at the desk during registration, testified that three Black males of average height came into the hotel. One approached the desk to register, and two others sat in the north lobby. She noticed that one of the men sitting in the lobby had on glasses and wore jeans. She could not describe the person who registered in any detail.

Later Ms. Saunders identified Harris during a show-up as one of the men who sat in the north lobby. She made her identification from a window in the hotel's security office while Harris was standing outside at the back of the hotel. She also made an in court identification of Harris. However, she never identified Zanders.

Around 8:30 a.m. on October 20, 1990, two males walked into the Lincoln Gift Shop, located in the lobby of the Holiday Inn, Crown Plaza and owned by Chandra Kant Nandwani. Mr. Nandwani described the two as Black males, between the ages of twenty-two and twenty-five. They wore a "blue jeans jacket." The two men bought toothpaste, tooth brushes and five Georgetown sweatshirts for a total purchase of $135.60. One man signed the credit card slip as Raymond Sokolov. Five to ten minutes later, around 8:45 a.m., four males came into Mr. Nandwani's gift shop. Two were the same two who had been in earlier. The two who had not been in before were described as Black males who wore casual clothes. Three of the men picked out gold jewelry worth a total of $1,000; they paid for the jewelry with the same credit card used earlier. When the men discovered that they had purchased ladies' rather than men's jewelry, they exchanged the items for an eight inch gold link bracelet and two twenty inch gold chains.

Between 9:00 a.m. and 9:15 a.m., Mr. Nandwani became suspicious and reported the purchases to hotel security. He gave the credit card receipts to hotel security. During the trial of Zanders and Harris, Mr. Nandwani was not asked to make an in court identification of either man.

Sometime between 9:00 and 10:00 a.m., James Routson traveled from the Silver Spring Metro stop to Metro Center. He transferred to the orange line and headed for the Smithsonian station in order to get to his place of employment, the Department of Agriculture. On the way from the Metro Center stop to the Smithsonian stop, he discovered that his wallet was missing. His Core State Visa credit card was in the wallet.

Mr. Routson recalled that as he was descending the escalator at the Metro Center station, a gentleman situated at the bottom of the escalator dropped some papers and a radio, and people on the escalator started bumping into Mr. Routson because his exit from the escalator was blocked by the gentleman. He described the person at the bottom of the escalator as five feet ten and one half inches tall, medium build on the slight side, under forty years of age, under 160 pounds, and a Black male. He gave no clothing description in court. He stated that he picked up a battery which had fallen out of the radio and gave it back to the gentleman who had dropped the radio. Mr. Routson was asked, "do you remember what the person at the bottom of the escalator looked like as you sit here today"? He responded, "I couldn't identify him." He gave no testimony regarding who may, or may not, have been behind him.

A Metro Transit police officer, Jonathan Gray, testified at trial that he had taken a report from Mr. Routson. According to him, Mr. Routson had described the man at the bottom of the escalator as a Black male wearing a brown jacket and brown pants, five feet nine inches tall, 160 pounds, light complected, and in his twenties.

Officer Wai Ming Chung of the Metropolitan Police Department, First District, testified that he responded to a radio call at the Holiday Inn, Crown Plaza on October 20, 1990, concerning incidents at the hotel. According to him, the hotel clerk indicated that the men who had been reported to the police had just left the hotel. The clerk pointed out two men who were walking away from the hotel. One man, later identified as Zanders, began to run when he saw the police. The other man, later identified as Harris, continued walking away.

Officer Chung chased and caught Zanders who was a Black male, had on a brown jacket, and had a portable cassette player attached to his person. Zanders was taken to the hotel for a show-up identification. Officer Chung was informed over the police radio that a hotel clerk identified Zanders during the show-up. Officer Chung made an in court identification of Harris as the man who was walking away from the hotel, and Zanders as the man who ran away from the hotel.

Officer Michael Fulton of the Metropolitan Police Department, First District, testified that he was riding in his patrol car when he heard a police...