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08/30/91 DAVID M. MCCALL v. UNITED STATES

August 30, 1991

DAVID M. MCCALL, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Henry F. Greene, Trial Judge

Steadman and Schwelb, Associate Judges, and Kern, Senior Judge. Opinion for the court by Senior Judge Kern. Dissenting opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Kern

This is an appeal from a judgment of conviction for assault entered after a jury trial. It presents for our determination whether the trial court, under the particular circumstances, committed reversible error by permitting an eyewitness to the crime, who was never shown prior to trial a photo array or line-up of suspects, to identify appellant in court as one of the several assailants of the victim. *fn1 We affirm.

The victim testified at trial that he was walking in Georgetown shortly after midnight on his way to his parents' home in September 1988, when persons in an automobile hailed him. After some conversation, one of the passengers grabbed a jacket he was carrying. When the victim sought to retain it, he was pulled into the car which drove away. Ultimately, he extricated himself (but not his jacket) from the car and fled. Some of the persons in the car, which had again stopped, pursued him on foot. They caught up with the victim and kicked and beat him and stole his boots. He identified appellant as one of those who had attacked him.

The eyewitness testified at trial that he had just parked his car when the victim came running up to him and pleaded for help. The witness observed appellant and others come around the corner and commence to push and then kick the victim when he fell to the sidewalk. The witness left the scene and called the police emergency number.

In addition, the witness testified, under questioning by the prosecutor, that he was not contacted by the police or the prosecutor about being a witness until late May or early June, 1989. At this point in the trial, the prosecutor requested a bench conference. There, he advised the trial court of "the question I contemplate asking him . . . do you think you would recognize any of the people if you saw them again. And I expect his answer will be, no, I don't. I can't guarantee that's his answer because I never had him looking at them."

The defense attorney protested to the court, "I was informed before the trial that [the prosecutor] was not going to ask him to make any in-court identifications."

Agreeing with defense counsel that he had said the witness would not be asked to give an in-court identification, the prosecutor replied, "I'm not asking him in order to get an in-court identification. I'm asking him because . . . I want the jury to understand that the reason he's not being asked is too much time's passed."

Defense counsel responded that "there was opportunity to show him the line-up video tape . . . the line-up photograph . . . the photo array and it wasn't done."

The trial court interposed, "How is your client prejudiced? . . . Defense counsel replied, "Because he'll pick him out in the courtroom. It's an unfair line-up." However, defense counsel was unable to provide legal authority to the trial court to support the proposition he was advancing: that the prosecution was obliged "to show a photo array or has to have a line-up before they can elicit an in-court identification . . . ." *fn2

Ultimately, the trial court overruled the defense objection and the prosecutor asked his question of the witness: "Do you think that at this time you would recognize any of the people that you saw that night if you saw them again?"

The witness replied, "With less than a hundred percent vivid recollection I would . . . . The young blond man there certainly fits my recollection . . . . His face does fit my recollection."

The witness then indicated appellant in the courtroom and explained that he had "recollected" him as "the first person chasing [the victim] around the corner." The witness went on in his testimony to state with respect to appellant, "The gentleman is about four inches taller than I recalled. That is, as I have seen him standing up, I have said to myself this person is taller than I recalled." (Emphasis added.)

Then, the following colloquy took place between the prosecutor and the witness:

Q. As you've seen who standing up?

A. The gentleman there.

Q. Where did you see him standing up?

A. I have seen him by the entrances and exits over at least the last two days.

Defense counsel cross-examined the witness and elicited from him that between the event and the trial no one ever showed him an array of photos, or a photo or videotape of a line-up. Appellant's counsel then asked the witness to "pick out the three people who are on trial here in the courtroom," and the witness guessed that they were "the three young men sitting behind the three defense attorneys."

On redirect-examination by the prosecutor, the witness stated that "it is not solely because he is sitting where he is sitting that I associate him as being a defendant in this case." The witness went on to explain, " I have seen him outside of this courtroom and I have seen him by the main entrance of the ground level entrance to this building. . . . The first time I saw him standing nearby this courtroom . . . he looked quite close enough to my recollection that I said to myself this is the main defendant . . . the person who came around [the corner] first, the person who was most aggressive, and the only person with whom I had eye contact." (Emphasis added.) *fn3

Appellant contends that the witness's "in-court identification of appellant should have been excluded, not because the surrounding circumstances were impermissibly suggestive, but because the prosecutor had assured appellant's counsel before trial that no such identification would be elicited." (Emphasis added.) Appellant relies on Rosser v. United States, 381 A.2d 598 (D.C. 1977), and Smith v. United States, 491 A.2d 1144 (D.C. 1985), in support of his argument that the prosecutor's conduct here was as opprobrious as that in Rosser and hence constitutes cause for reversal.

Although we agree that a prosecutor should not make certain representations to counsel without being held accountable, we conclude that the circumstances of this case do not warrant reversal. Both Rosser and Smith are distinguishable from this case. In those cases, the prosecutor knew prior to trial the substance of the witness's statement and intentionally misled defense counsel. Smith, supra, 491 A.2d at 1147-48; Rosser, supra, 381 A.2d at 609. Here, so far as the record shows, the prosecutor was not aware that the witness had seen appellant after the crime but before he took the stand and had from such sightings refreshed his recollection of appellant's participation in the crime that took place in his presence. Thus, the substance of the witness's testimony was as much of a surprise to the prosecutor as it was to defense counsel. Furthermore, had the trial Judge held a hearing without the jury, the witness's testimony would still have been admissible since appellant does not assert that the chance encounters were in any way planned by the prosecution or otherwise impermissibly suggestive.

In our view, the record reflects not duplicitous but rather careless conduct by the prosecutor. *fn4 However, there is nothing in the record to show that the prosecutor knew when he asked his question, "Do you think at this time you would recognize any of the people that you saw that night if you saw them again," that the witness would answer, "With less than a hundred percent vivid recollection I would . . . . The young blond man there certainly fits my recollection." Rather, the record reflects that the prosecutor had anticipated an answer in the negative from the witness. Thus, we reject appellant's argument that the "prosecutor chose to ambush appellant by eliciting in-court identification after [the witness] was already on the witness stand, at which time it was too late to arrange a fair confrontation." *fn5

Appellant also contends that the prosecutor "by failing to timely disclose his intention to elicit an in-court identification from [the witness] . . . prevented appellant's counsel from filing a pretrial motion to suppress the testimony." See In re F.G., 576 A.2d 724 (D.C. 1990) (en banc) (holding that defendant is entitled to a pretrial hearing on a motion to suppress show-up identification evidence unless sought in bad faith). First, the record does not support appellant's assertion that the prosecutor intended by his question of the witness to elicit any in-court identification testimony. Rather, the prosecutor had explained that he intended by his question to take the "sting" out of what he anticipated would be the inability of the witness to make an identification.

Second, a pretrial suppression hearing would not have brought the desired result. Defense counsel maintains that he would have kept appellant out of the witness's sight during a pretrial hearing on identification testimony. Because the witness's memory was restored by his encounters with appellant, a pretrial hearing would have elicited no useful identification information. *fn6

It may be urged that appellant suffered prejudice as well from defense counsel's inability to obtain a pretrial identification from a photo array of videotaped line-up. See Berryman v. United States, 378 A.2d 1317, 1319-20 (D.C. 1977). Clearly, the witness's failure to identify appellant in a pretrial identification could be used to impeach his in-court identification. However, as the court suggested to defense counsel, the witness could also be impeached by the fact that he could only identify appellant in-court, an inherently suggestive type of identification. However, because of the chance sightings which lent credibility to the witness's testimony, such impeachment was not successful.

In any event, once the witness did identify appellant at trial as the "most aggressive" of the victim's attackers, the defense then had an opportunity to move for a mistrial on the ground that such identification had been impermissibly suggestive. *fn7 Appellant did not do so. Rather, the record reflects that appellant on the second day of the trial following the witness's in-court identification of appellant filed a motion for a mistrial on the sole ground that the chance sightings of appellant by the witness were improper because they took place without defense counsel being present. Thus, the defense had an opportunity to show prejudice but chose not to challenge the witness's identification of appellant under impermissible circumstances.

In sum, we reject appellant's argument that under the circumstances, the prosecutor engaged in misconduct so as to require reversal. Neither are we persuaded upon the record here by appellant's assertion that he was "deprived . . . of the opportunity to persuade the trial court that any in-court identification by [the witness] would be so hopelessly unreliable that it should be excluded on either constitutional or evidentiary grounds." *fn8 Specifically, appellant never contended that the accidental sightings by the witness of appellant were under impermissibly suggestive circumstances, and he has conceded that the in-court identification was not unreliable. *fn9 Appellant was afforded an opportunity by the trial court to move to suppress the in-court identification on the ...


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