The opinion of the court was delivered by: WALSH
LEONARD P. WALSH, District Judge.
This matter came before the Court on remand by the Court of Appeals, 1969, 133 U.S. App. D.C. 91, 408 F.2d 1294, Senior Judge Prettyman and Judges Danaher and Wright).
This case was tried to a jury by this Court December 14 through 22, 1967. Defendant was indicted for first degree murder and was found guilty by the jury of the lesser included offense of second degree murder of Leticia Salazar.
The remand order of the Court of Appeals directed the Trial Court to "conduct an evidentiary hearing, making findings to fact, and state his conclusions of law with respect to the following:
(1) Was the pretrial confrontation at La Plata, Maryland, on October 10, 1966, so unnecessarily suggestive and conducive to irreparably mistaken identification that the defendant was denied due process of law?
(2) Even should the foregoing question be answered in the negative, is there clear and convincing evidence that the in-court identifications had an independent source?
(3) Regardless of the answers to the above questions, assuming that the in-court identifications were tainted, taking into account the totality of the circumstances was the error in admitting them in evidence harmless beyond a reasonable doubt? See Clemons v. United States, 1968, slip op. 6-8 [ 133 U.S. App. D.C. 27, 408 F.2d 1230])."
The evidentiary hearing was held on August 4 and 5, 1969, in accordance with the directions of the Court of Appeals, and the matter was taken under advisement pending preparation of the transcript and the filing of briefs by counsel. Counsel for defendant filed his brief on December 22, 1969. The Government has not submitted a brief. This Court now makes the following findings of fact and conclusions of law based on the evidence adduced at the hearing.
1. The decedent resided at 1465 Columbia Road, N.W., Apt. 41, with Minerva Reyes.
2. Both decedent and defendant were of Latin extraction, residing in the United States.
3. Charles Duckworth, who resided at 1479 Columbia Road, N.W., was 14 years old on October 9, 1966. On that date he was playing in the front of his residence with two younger boys. At approximately 3:45 P.M. he observed an individual walking west on Columbia Road at a rapid rate of speed, proceeding towards 15th Street, N.W. The individual attracted his attention in that he had no shirt on, and was bare from the waist up, and his arm was wrapped in a white shirt and the arm was bleeding.
4. Homicide officers, as well as other officers, on the scene made an investigation in the neighborhood and talked with Charles Duckworth, as well as Luis Viteri, aged 8, and Mark ...