Appeal from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Motions Judge, Hon. Robert A. Shuker, Trial Judge
Belson and Schwelb, Associate Judges, and Reilly, Senior Judge.
The opinion of the court was delivered by: Reilly
Appellant was convicted after a jury trial of first degree murder while armed, D.C. Code § 22-2401, -3202 (1989 Repl.), assault with intent to kill while armed, D.C. Code § § 22-501, -3202 (1989 Repl.), and carrying a pistol without a license, D.C. Code § 22-3204 (1989 Repl.). He contends that the trial court erred (a) in refusing to suppress identification testimony by the government's chief witness, and (b) by admitting evidence of prior crimes committed by the accused. Finding appellant's contentions without merit, we affirm. *fn1
The evidence offered by the government (appellant presented none) may be summarized as follows:
About midnight on July 25, 1983, Janice Boyoue, tenant of a one-bedroom apartment on Adams Mill Road, N.W., was shot to death while sleeping there. Her thirteen-year-old son, Henry Bost, who was sleeping in the same room, was awakened by gunfire. Discovering that he was wounded and that his mother was apparently dead, he telephoned the police. As he was hanging up the phone, appellant John Green suddenly appeared, cursed him for calling the police, pointed a gun at him and pulled the trigger. The gun did not discharge. While Green was attempting to reload it, the boy reached over to pull the gun from his grasp. In the ensuing struggle, the gun was dropped, and the boy, eluding his assailant, ran downstairs and out of the building, where police responding either to his call or one placed simultaneously by another tenant, found him lying in the bushes across the street bleeding from a bullet wound in his lower back.
While being transported to a hospital in an ambulance, young Bost told an accompanying police officer that his assailant was a former lover of his mother named John Green, who had lived in her apartment for about six months. About a month prior to the shooting incident, she had broken off the relationship, forced him to leave, and refused to readmit him to the household, despite his threats to kill both mother and son unless she relented.
A homicide detective who interviewed the boy at the hospital while he was recovering from surgery, learned from him that Green had resorted to violence on at least one occasion. During an angry visit at which Green's efforts at reconciliation were rejected, he grabbed a knife from the kitchen and cut the forehead of the boy's mother. She complained to the police; a warrant for Green's arrest charging assault with a deadly weapon was issued, but was never served upon him, as it became mislaid at the police station. Green continued to harass the mother by threatening phone calls, some of which the boy overheard.
The detective also was told by the boy that Green was a Jamaican and used the alias Earl McCormack. Armed with this information, and suspecting that Green had fled the jurisdiction, the detective got in touch with constabulary headquarters in Kingston, Jamaica and received a photograph of a man of that name (or names) who had lived there. He showed it to young Bost, who identified it as a picture of the man he had known as John Green. The detective then used it to prepare posters which were circulated to other law enforcement agencies. More than two years later, Green was arrested in New York by FBI agents, extradited, and transported here. Police arranged for a line-up which Bost was asked to attend. He immediately pointed to Green, who was subsequently indicted and brought to trial. When Bost was called to the witness stand, he again identified appellant not only as Green, but as his assailant in the fatal shooting.
In assigning error to the court's denial of the pretrial motion to suppress the line-up and courtroom identifications of appellant by Bost, appellant argues that these were tainted by the fact that only a single photograph, rather than an array of photographs, was shown to this witness by the homicide detective before appellant was taken into custody. He cites a decision, Mason v. United States, 134 U.S. App. D.C. 280, 414 F.2d 1176 (1969), for the proposition that the showing of a single photograph involving a single suspect is highly suggestive and may produce a substantial likelihood of irreparable misidentification. In that case, a bank teller who had honored a forged withdrawal slip, told a detective who had displayed a single photograph to her that the subject was the individual who had presented the fraudulent document. The circuit court, in reversing the conviction, quoted some observations of the Supreme Court in Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).
A subsequent holding of that Court, Manson v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), has made clear that even though the initial procedure -- an exhibition of a single photograph -- might have been unduly suggestive, an appellate court must nevertheless affirm a conviction if under the "totality of circumstances" the identification (and an ensuing identification) was reliable. Our court has accepted this test. Patterson v. United States, 384 A.2d 663, 665 (D.C. 1978), accord, Johnson v. United States, 470 A.2d 756 (D.C. 1983).
In the instant case, there is good reason for believing that the original identification by Bost of the Jamaican photograph as that of appellant Green was trustworthy, for Bost had actually lived with this individual at his mother's apartment, knew his name and geographic background, and informed police weeks before the photograph was shown to him that he recognized him as the gunman in the apartment the night he and his mother were shot. Moreover, it was most unlikely that in subsequently selecting Green from a line-up of several individuals Bost relied upon a fleeting memory of a photograph shown him two years earlier rather than his own recollections of the features and general appearance of a man he had known on a family basis for a period of more than six months. Hence, the court correctly rejected the suppression motion.
We also note in passing that it is extremely doubtful that the Simmons decision and its progeny disapproving the use of single photographs to establish identity have any relevance to cases like this where the person to whom the photograph is shown is an eyewitness to a crime who has already given police the name of the criminal -- a relative, neighbor, or close acquaintance. In this context, the purpose of the showing is merely to make certain that a photograph which the police propose to reproduce and circulate is indeed a picture of the missing criminal. Plainly the likelihood of undue suggestivity is present only in situations where the perpetrator of the crime is a stranger to the witness and the latter is asked to make identification on the basis of a single photograph or by confrontation with a suspect in handcuffs or in a holding cell. As the government brief points out, the courts of this jurisdiction and others have routinely upheld the practice of showing a witness a single photograph of a personal acquaintance or of someone upon whom the witness had ...