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

DISTRICT OF COLUMBIA COURT OF APPEALS


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 ground of undue suggestivity, but instead, chose to move for a mistrial on an entirely different ground. Thus, under the particular circumstances, we are obliged to affirm the judgment of conviction.

So ordered.

SCHWELB, Associate Judge, Dissenting: In my opinion, McCall was substantially prejudiced when the prosecution effectively broke a promise to him. Accordingly, I respectfully Dissent.

I

This case arises out of a rather bizarre encounter in Georgetown in the early morning hours of September 14, 1988. The complaining witness, Dr. Michael Daly, is a young British doctor who had arrived in the United States only four days earlier to work at the National Cancer Institute. On the evening in question, Daly had visited a "pub" and socialized. Shortly after midnight, he was walking up Wisconsin Avenue towards his parents' home.

It was apparently Daly's appearance that led to his unwelcome confrontation with young men bent on doing him harm. Daly's hair had been cut short, he was carrying a green "bomber" jacket over his arm, and he was wearing jeans and a pair of "Dr. Martin" boots. The cumulative effect of these features of his appearance was evidently to make him look rather like a "skinhead." A car occupied by six young people who were apparently affecting or "into" the "skinhead" lifestyle pulled up next to Daly. The driver of the vehicle was one Arnold Robles, with two young women, Deirdre Ford and Mary Cabrera, riding in the front seat. David McCall was in the rear of the car, flanked by his eventual codefendants, Richard Craig Grimes and Mark Hyder.

Apparently egged on by Grimes, one of the young women asked Daly if he was a skinhead and a "white power." There is some dispute about exactly what response Daly provided to this rather provocative inquiry, *fn1 but it appears that the conversation which ensued was interrupted when Grimes suddenly grabbed Daly's coat. Daly dived head first into the car, apparently to fight for his property, and Robles drove away, with Daly's legs protruding out of the window. In spite of his somewhat precarious position, Daly was apparently laughing, but some of the other occupants of the vehicle warned him that the situation was not funny, and one of the men threatened to "kick his butt," or worse.

Eventually, the car stopped and Daly maneuvered his way out and ran from the scene, leaving his jacket in the car. Soon all of the occupants of the vehicle except Robles were running after him, with two of the men apparently in the lead. Daly asked for help from a cabdriver and, when that request turned out not to be productive, vaulted over the hood of the cab and solicited the assistance of a man who had just got out of his car. That man turned out to be Gary Vagnette, whose eventual identification of McCall is the subject of this appeal.

As Daly spoke to Vagnette, the vanguard of his tormentors caught up with him. One or more of the men beat and kicked him and demanded that he take off his boots; Daly did so and delivered them to the robbers. One of the young women -- apparently Mary Cabrera -- asked for and received Daly's wallet. The assailants then returned to their car. Vagnette called the police. Daly, who was bleeding and who had been involuntarily relieved of his jacket, boots and wallet less than a week after arriving in our nation's capital, managed to walk to his parents' home and also called for help. Police officers responded, the occupants of the vehicle were soon identified and apprehended, *fn2 and Grimes, McCall and Hyder were charged in a single indictment with armed robbery. *fn3 The weapon which they allegedly used is described in the indictment as a "shod foot." All three defendants, according to Daly, were wearing boots.

II

The basic facts described above were largely undisputed at trial. There was considerable disagreement, however, as to the part played in the crime by the various defendants. Although it was undisputed that McCall, like his codefendants, was on the scene at the time that Daly was assaulted and robbed, his defense was essentially one of innocent presence.

The principal witnesses who testified at trial regarding the encounter included three of the occupants of the car (Robles, Ms. Ford, and Ms. Cabrera, the latter having been called to the stand by the defense), the victim (Daly), and a passerby (Vagnette). The testimony of these witnesses as to the role played by McCall was confusing and contradictory.

Robles, Ms. Ford and Ms. Cabrera all testified that it was Grimes who beat and kicked Daly and who took his boots. None of the three implicated McCall in the beating, the kicking, or the misappropriation of Daly's property. All three witnesses agreed that McCall was in the car when the encounter began and that he was one of those who ran from the car after Daly left it; Ms. Cabrera claimed to believe that McCall was following Grimes rather than chasing Daly. The two women asserted that McCall was simply standing around away from the action during the assault; Robles said McCall was next to Grimes. Ms. Cabrera was impeached with a prior inconsistent statement to a prosecutor in which she had apparently inculpated McCall; she claimed that she was too drunk when she made that statement to know what she was saying, an assertion rebutted by a police officer. *fn4

Daly identified McCall at trial as the person who chased him, kicked him, and took his boots. *fn5 Daly was, however, impeached with his responses to prior identification procedures. Approximately ten days after the crime, officers showed Daly an array of eight color photographs which included the three defendants. He quickly selected a photograph of Grimes and identified him as his "primary" assailant. He also selected McCall's photograph. A police detective testified, however, that a few weeks later Daly had stated at a witness conference that "the first photograph that he had pulled from the array was the primary assailant, that being the one that did most of the activity or chased him or assaulted him took his boots." That man, of course, was Grimes, and Daly's statement was, in this respect, consistent with those of Robles, Ms. Ford and Ms. Cabrera.

On November 2, 1988, about seven weeks after the robbery, police officers showed Daly a videotape of a lineup. Daly watched the videotape five times. He eventually described Grimes as "possible" *fn6 but said that No. 2 (McCall) did not "ring a bell." On the fifth and final viewing, Daly stated categorically that No. 2 was not one of his assailants.

III

Gary Vagnette testified that although he was the person who placed the 911 call which first alerted police to the incident, he was not interviewed until May or June 1989, eight or nine months after the robbery. He stated that he saw two men chase and rough up a third, and that immediately before the assault the victim had said something to him which he did not understand. He described a blond man as having kicked the victim and a second man as perhaps having participated in that activity.

At the Conclusion of the direct examination of Vagnette, the prosecutor asked to approach the bench. A sidebar conference ensued:

MR. FRIEDMAN (the prosecutor): I should have thought to do this before the jury came in, I'm sorry. The question I contemplated asking [Mr. Vagnette] is something to the effect of do you think you would recognize any of the people if you saw them again. And I expect that his answer will be, no, I don't. I can't guarantee that's his answer because I never had him looking at them.

MR. NIBLACK (counsel for McCall): I was informed before the trial that Mr. Friedman was not going to ask him to make any in-court identifications.

THE COURT: Well, is that right?

MR. FRIEDMAN: Well, whatever I said was said in court and I -- and I think I did say that. And I'm not asking him in order to get an in-court identification. I'm asking him because I guess I want the jury to understand that the reason he's not being asked is too much time's passed.

MR. NIBLACK: I would submit, Your Honor, there was opportunity to show him the line-up video tape, there was opportunity to show him the line-up photograph, there was opportunity for him to show the photo array and it wasn't done.

THE COURT: How is your client prejudiced, Mr. Niblack?

MR. NIBLACK: Because he'll pick him out in the courtroom. It's an unfair line-up. It's a completely suggestive line-up. Not even a line-up, it's a suggestive opportunity for him to --

THE COURT: There's not any law that supports that proposition at all. All the law in this area was that absent any suggestivity other than the courtroom situation itself --

MR. NIBLACK: I ask other people be permitted to sit in the courtroom with my client, with the other defendants.

THE COURT: Excuse me?

MR. NIBLACK: Then I ask that the Court and police department, U.S. attorney's office provide other people that are similar to sit in the courtroom and provide us a fair opportunity for a line-up. [ *fn7

THE COURT: No, sir.

MR. NIBLACK: There is a law that says that is favored.

THE COURT: Why?

MR. NIBLACK: There is case law that says that that type of arrangement is favored upon request.

THE COURT: What's the case law?

MR. NIBLACK: On the other hand, he has only viewed the defendant in the courtroom setting. There are three defendants in this case and asking him to make an in-court identification when I was informed by Mr. Friedman when this case started that there was to be no identification -- in-court identification --

THE COURT: That's why I asked you how you are prejudiced, because I can't conceive of any basis on which you could move to suppress such as identification based on the testimony I've heard. And if you can tell me some basis or what you would have done had Mr. Friedman told --

MR. NIBLACK: First of all, when there is an opportunity to provide identification, it should be under as fair a circumstance as possible. And this is patently unfair. They had the opportunity to show him the photo array, the opportunity to show him the photograph of the line-up, they had the opportunity show him the video tape of the line-up and they didn't do it. Now under the most favorable circumstances, the most suggestive circumstances they ask him to do it.

After further Discussion concerning whether any case law existed on counsel's point, the court overruled the objection:

THE COURT: You [referring to Mr. Niblack] can show that he was never asked to go to a line-up, never shown any photos, that the government just did this because it happens to have all three of these people here in court together. But I don't know of any law that says Mr. Friedman can't do it.

Now if you have some basis to -- that you would have moved to suppress it because it's -- you know, there was some suggestivity before trial leading up to it, then I'd hear you but you don't have any basis for that.

MR. NIBLACK: There may be other things he didn't testify, Mr. Friedman didn't ask him, Mr. Friedman knows we could have explored at pretrial motions.

THE COURT: That's purely speculative. I'll overrule your objection.

(Emphasis added.)

After the Judge's ruling, the prosecutor asked the witness whether "at this time you would recognize any of the people that you saw that night if you saw them again." Vagnette responded that "with less than a hundred percent vivid recollection," *fn8 he could state that "the young blond man there certainly fits my recollection." On cross-examination by counsel for the codefendants, Vagnette indicated that the blond man was one of the first two pursuers who chased and kicked Daly. *fn9 On redirect examination, Vagnette revealed that he had observed McCall standing near the courtroom before he testified, and that "I said to myself that this is the main defendant or this is one of the defendants in this case." Daly elaborated that the blond man "was always the main person to me, the person who came around first, the person who was most aggressive, and the only person with whom I had eye contact." He indicated that his identification was not based solely on McCall's presence at the defense table.

The following day, after Vagnette had completed his testimony, McCall's counsel made a motion for a mistrial. He now contended that McCall had been denied his right to counsel in connection with Vagnette's "second sighting" of him outside the courtroom, because the prosecutor's assurance that there would be no identification by Vagnette lulled counsel into failing to take the necessary steps to avoid the second sighting:

Here, as far as Mr. Vagnette was concerned, I was informed by the government at the beginning of trial that there would be only one in-court identification attempted and that was from the complaining witness. I was informed that Mr. Vagnette would not be asked to attempt to make an in-court identification . . . I myself not knowing that there was a danger of this confrontation between the defendant and Mr. Vagnette was able to take no precautions to avoid it. And I would have, had I known there was that danger. . . (but) I was led to believe by the Government that there would be no attempt at an in-court identification.

The Judge denied the motion for a mistrial, and the case was eventually submitted to the jury. Grimes, who fled midway through the trial, was convicted in absentia of armed robbery. He was sentenced to imprisonment for no less than seven years and no more than twenty-one. McCall was found guilty of the lesser included offense of simple assault. *fn10 He was committed for one year pursuant to the District of Columbia Youth Rehabilitation Act. D.C. Code § 24-803 (b) (1989). Hyder was acquitted of all charges. McCall filed a timely notice of appeal.

IV

A. The prosecutor's assurance.

Identity was and was not a critical issue at McCall's trial. On the one hand, all of the witnesses who were involved in the September 14, 1988 incident testified both that McCall was one of the back seat passengers in Arnold Robles' car and that he was present at the Conclusion of the chase, when Michael Daly was assaulted by his pursuers and stripped of his boots. On the other hand, the "involved" witnesses agreed that McCall was merely standing by, watching, when Daly was assaulted, and that it was Grimes, acting on his own, who struck Daly in the head, kicked him as he lay on the sidewalk, and ordered him to remove his boots. All three of the defendants' companions -- Deirdre Ford, Mary Cabrera, and Arnold Robles -- identified Grimes as the primary and, indeed, the only assailant. Ms. Ford and Ms. Cabrera gave testimony which was strongly exculpatory as to McCall and consistent with a defense of mere presence; Robles stated that McCall (like Hyder, who was acquitted) was merely standing close by when Grimes struck his victim from behind. If the three witnesses who knew McCall -- Ms. Ford, Ms. Cabrera and Robles -- had been the only identifying witnesses at the trial of this case, McCall might well have been acquitted of all charges, including simple assault.

McCall's "mere presence" defense was seriously undermined, however, by the courtroom identifications by Daly and Vagnette. He was, of course, a stranger to both of these witnesses, but each identified him at trial as the man who first set upon Daly, knocked him to the ground, and proceeded to kick him into submission. These in-court identifications were devastating to McCall, for they undermined his claim that he was a mere bystander who followed Grimes to the scene of the crime but did not participate in or assist in any way the ensuing robbery and assault.

McCall had a ready arsenal with which to combat Daly's in-court identification. Daly had previously seen him in a photo array and lineup video, and, on those occasions, had either eliminated him as a suspect or, in the case of the photo array, selected his picture but indicated that Grimes, not McCall, was definitely the primary assailant. McCall was in a position to argue quite plausibly that Daly's in-court identification of him as the main assailant was erroneous and that his trial testimony, given nearly a year after the offense, was less reliable than his earlier statements.

In the case of Vagnette, however, McCall had no such ammunition. The prosecutor, who had a photo array, lineup photo, and lineup videotape readily at hand, had not bothered to show any of these materials to Vagnette. Rather, he effectively ambushed McCall by securing an in-court identification after Vagnette was already on the witness stand, at which time it was too late to arrange a fair confrontation. The ensuing identification by an uninvolved bystander witness whose testimony the jury was likely to credit was a devastating blow from which McCall never recovered.

McCall argues that Vagnette's in-court identification of McCall should have been excluded, not because the surrounding circumstances were impermissibly suggestive, but because the prosecutor had assured McCall's counsel before trial that no such identification would be elicited. "All members of the court appear to agree that a criminal defendant is entitled to all available information necessary to make an informed decision whether an . . . identification is subject to effective challenge." In re F.G., 576 A.2d 724, 728 (D.C. 1990) (en banc). *fn11 Although McCall concedes that the prosecutor was not strictly obliged under Super. Ct. Crim. R. 16 to tell defense counsel what identifications he intended to elicit -- a concession that might reasonably be questioned in light of the quoted pronouncement in F.G. -- he contends that, once the prosecutor chose to reveal such information, he had an obligation not to mislead but to provide accurate information. I agree.

McCall's counsel had the right to rely on the prosecutor's representation. Rosser v. United States, 381 A.2d 598, 605 (D.C. 1977). Although McCall accuses the prosecutor of deliberate wrongdoing, I have no reason to believe that the prosecutor intentionally deceived defense counsel. It appears more likely that he made an improvident commitment which he later regretted. *fn12 In any event, he proceeded quite correctly by seeking the Judge's permission to ask his proposed final question instead of proceeding without the Judge's consent. There can be no doubt, however, that the prosecutor, at the very least, "threw defense counsel . . . off the track." Id.

The government suggests that the prosecutor did not violate any "agreement" because there was no "agreement" per se, and suggests that defense counsel should have prepared for the possibility of a courtroom identification by Vagnette in any event. I think that a more generous and expansive view of a prosecutor's obligation is called for in circumstances such as these. "We cannot agree that defense counsel was obliged to doubt, and thus test, the prosecutor's word . . . ." Rosser, supra, 381 A.2d at 608. But for the prosecutor's assurance that he would not seek an in-court identification by Vagnette, the defense's "trial preparation and strategy might well have been different." Smith v. United States, 491 A.2d 1144, 1149 (D.C. 1985) (citation and internal quotation marks omitted). *fn13

Although the trial Judge made no specific finding as to whether the prosecutor had provided an assurance as claimed by McCall's attorney, *fn14 he based his ruling on the absence of any showing of prejudice. Cf. Lee v. United States, 385 A.2d 159, 164 (D.C. 1978) (government's failure to make discovery requires reversal only if it is "substantially prejudicial" to the appellant's rights). The Judge implicitly recognized that if the identification would substantially prejudice McCall, it should be excluded. I therefore turn to the issue of prejudice.

B. Prejudice.

If McCall's attorney had been apprised that Vagnette would be given the opportunity to identify him in the courtroom, he could have taken a number of measures to counteract this possibility. In fact, apparently and, justifiably relying on the prosecutor's contrary assurance, he took none of them.

Unlike Daly, Vagnette was never shown either a photo array or the videotape of a lineup, nor was his ability to make an identification in a non-suggestive setting ever tested in any other way. Absent the prosecutor's improvident assurance, this omission on the part of the prosecutor and the police could have been effectively remedied by the defense. McCall's attorney could have asked an investigator to prepare his own photo array and present it to Vagnette; the investigator could then have testified to the results. Counsel could also have requested a lineup. See Berryman v. United States, 378 A.2d 1317, 1319-20 (D.C. 1977). Indeed, "if the Government's case turns upon the testimony of an identification witness, and defense counsel forecasts irreparable suggestivity if the witness appears at the preliminary hearing, his remedy lies in a motion for a lineup, to assure that the identification witness will first view the suspect at a lineup rather than in the magistrate's hearing room." United States v. Smith, 154 U.S. App. D.C. 111, 113, 473 F.2d 1148, 1150 (1972). Given the timing of the prosecutor's change of direction, however, it was far too late for the defense to obtain a lineup, and counsel's request at the bench for an improvised one was futile under the circumstances.

McCall could also have filed a motion to suppress any courtroom identification by Vagnette as unduly suggestive and unreliable. See In re F.G., supra. Indeed, he did file such a motion, albeit an unsuccessful one, with regard to Daly's identification of him. To be sure, this court has held that there is nothing inherently improper about an in-court identification, so that even a witness who has failed to make an out-of-court identification may be brought into court and permitted to identify the defendant from the stand. See, e.g., Middleton v. United States, 401 A.2d 109, 131 (D.C. 1979). Nevertheless, McCall would have had a right to an evidentiary hearing if he had filed a motion to suppress identification testimony. In re F.G., supra, 576 A.2d at 728. Even assuming, as did the trial Judge, that such a motion would not have been successful, *fn15 McCall's ability to cross-examine Vagnette might well have been substantially enhanced following a motions hearing.

Finally, if McCall's counsel had been apprised that Vagnette was a potential identification witness, he would have been in a position to advise his client, so far as possible, to keep out of sight, and thus to try to avoid a second sighting *fn16 by Vagnette which might pave the way for, and reinforce, a courtroom identification. This court has held that a defendant may waive his presence at a pretrial hearing on a motion to suppress identification testimony. Singletary, supra, 383 A.2d at 1070. By analogy, McCall could have requested the Judge to permit him to absent himself while Vagnette was in the courtroom, at least until such time as a non-suggestive identification procedure could be arranged. All in all, the prosecutor's assurance and subsequent failure to honor it effectively deterred McCall and his counsel from taking an assortment of tactical steps which had the potential for improving McCall's chances of successfully resisting this prosecution.

C. The standard of review.

When the prosecutor approached the bench and asked the Judge to permit him to pose the critical question to Vagnette, defense counsel objected with considerable vehemence. He did not, however, have at his fingertips all of the arguments which McCall's appellate attorney has now presented to this court. Indeed, trial counsel's main point appeared to be that an in-court identification was itself improper when the prosecutor had not attempted less suggestive procedures -- a contention which, as the trial Judge correctly held, finds no support in our cases. I agree that much of trial counsel's improvised argument, see pages 15-19, supra, was essentially unpersuasive. "It is our function to review the record for legal error or abuse of discretion by the trial Judge, not by counsel." Irick v. United States, 565 A.2d 26, 33 (D.C. 1989). Given the character of the contemporaneous articulation of the defendant's position, the "plain error" doctrine could conceivably be invoked. It is fair to say that some of the refinements of the prejudice which McCall now claims to have suffered were not meaningfully brought to the attention of the trial Judge. See Dixon v. United States, 565 A.2d 72, 80 (D.C. 1989) (discussing purpose of "plain error" rule).

McCall's counsel did, however, make the point to the Judge that, but for the prosecutor's assurance, he could have moved to suppress any identification by Vagnette and might have taken other steps -- including attempts to avoid a second sighting -- to protect his client's interests. While he did not mention that he could have filed a motion for a lineup, he did ask that an improvised one be assembled in the courtroom, and he criticized the prosecution for not having previously asked Vagnette to attend a lineup. Counsel was understandably taken off guard by a completely unexpected denouement, namely, the request by the prosecutor for relief from a commitment on which the defense had reasonably relied. Under ordinary circumstances, an attorney would have had weeks to devise a strategy to combat an in-court identification. It would be unreasonable, in my opinion, to fault counsel or to penalize his client because the attorney failed to assemble and enumerate all of the effective arguments available to him in a short sidebar conference with the Judge.

No man may profit from his own wrong. Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 232, 79 S. Ct. 760, 3 L. Ed. 2d 770 (1959). Here, the prosecutor sprang a complete surprise on McCall's counsel, and the latter was placed in the position of being obliged without any warning to debate an issue for which he previously had no reason to prepare. I do not think that the plain error doctrine was devised for such a situation.

Eschewing plain error analysis, I view the question here presented as somewhat analogous to the determination whether sanctions ought to be imposed for a discovery violation and, if so, the nature of these sanctions. That determination is a discretionary one, and requires consideration of the reasons for the nondisclosure, the impact of the nondisclosure on the trial, and the impact of a particular sanction on the administration of Justice. Lee, supra, 385 A.2d at 163.

Considering the three factors enumerated in Lee, I am satisfied that there was no valid reason here for what was far more than the "nondisclosure" of the planned identification -- a commitment not to seek one. The prosecutor's change of mind did not entitle him to break a promise on which McCall's counsel had a right to rely. From the perspective of the administration of Justice, it is important for courts to require that the government keep its promises.

I am also persuaded that an unexpected courtroom identification, for which McCall was unprepared as a result of the prosecutor's earlier commitment, was inherently prejudicial to him. Although one can sympathize with the trial Judge, whose ruling was made after McCall's counsel made largely unpersuasive contentions regarding the character of the prejudice, I am unable to agree with his decision. I cannot, of course, be certain that McCall would have been acquitted even if his attorney had been apprised of Vagnette's potential identification of McCall and had taken all reasonable steps to avert it. He might also have been convicted even if the identification evidence had been excluded. Certainty on these subjects, however, is not required.

Analogizing to the harmless error doctrine, the court must be satisfied "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed" by the breach of the prosecutor's commitment. Giles v. United States, 432 A.2d 739, 746 (D.C. 1981) (emphasis added) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). Given the testimony of the three witnesses who knew hip that McCall was not the main assailant (or, for that manner, not an assailant at all), and given the ammunition available to McCall to impeach Daly, a broken promise by the prosecutor which substantially impaired McCall's ability to contest Vagnette's identification of him may well have put the government over the top. At the very least, the contrary cannot be maintained with the requisite "fair assurance." *fn17

V

For the foregoing reasons, I would reverse McCall's conviction and remand the case for a new trial.


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