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04/14/92 LUIGI CANTIZANO v. UNITED STATES

April 14, 1992

LUIGI CANTIZANO, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Ferren, Steadman, and Wagner, Associate Judges.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: Appellant was convicted of four counts of simple assault (D.C. Code § 22-504) (1989). Appellant argues on appeal that the trial court erred in denying his motions: (1) to suppress evidence and identification; (2) to dismiss based on the victim's destruction of physical evidence with the government's consent and the government's failure to disclose on a timely basis certain evidence; (3) to grant a mistrial based on the government's failure to disclose pre-trial an out-of-court identification by one complaining witness and the improper admission of hearsay testimony; and (4) to sever counts. Appellant also argues that there was insufficient evidence to convict him and that the prosecutor's allegedly improper closing argument requires reversal. Finding no reversible error, we affirm.

I.

Each of the four incidents out of which the charges arose occurred in 1989 between late morning and 2:30 p.m. on January 19, February 22, March 13 and March 14. Each complaining witness is a young adult female who, while driving an automobile, was approached by a man on a motorcycle, wearing a helmet. After speaking with each complainant on some pretext, the man smeared a substance on each victim's face and said it was sperm or semen. The man asked the first victim for the time and directions. He told each of the other victims that she had a nail in her tire, and thus got close enough to commit the assault. The second two victims obtained the tag number of the assailant's motorcycle. Shortly thereafter, the fourth victim saw her attacker walking across a parking lot where several motorcycles were parked which were later found to belong to a courier company in the building, Unicorn Graphics. A police officer was directed to the location where he encountered appellant who matched a description of the assailant given by the last victim. The officer took appellant outside where the fourth victim positively identified him.

Appellant was employed as a courier by Unicorn Graphics at the time the crimes were committed. A company supervisor testified that the motorcycle with the license plate given by the witnesses was the bike used by appellant and that employees customarily did not switch bikes. *fn1 The company's time records also showed that appellant worked on each of the dates that the crimes were committed.

II.

Appellant argues that the trial court erred in denying his motion to suppress evidence and identification. This argument is based on the several lookouts given for the suspect before his arrest, the first of which had mistakenly described the suspect as a black male on a red motorcycle wearing a black helmet and a black jacket. The first description came from an attendant at the gas station where Ms. Goldsmith, the fourth victim, went for assistance. Ms. Goldsmith testified that she told the attendant only that a man had hit her and that she had not provided the attendant with any description.

A police officer, who was directed to Unicorn Graphics to look for the suspect, learned that no black courier had entered the office, although he saw what appeared to be the assailant's motorcycle on the lot. While in the office, the officer requested and obtained a description from another officer who was still at the crime scene with the complaining witness. That description came back for an "Oriental male with acne." Observing that appellant, who was in the office, could be either "Oriental" or Hispanic and that he had an uneven complexion, the officer took him outside for a show-up and gave him Miranda warnings. Before they went outside, appellant obtained from his locker a red jacket, and the officer observed a black jacket inside the locker. Appellant asked what was going to happen, and the officer responded that if appellant was not identified, he would be free to go. Appellant volunteered that he wasn't at the gas station and he didn't do anything. Ms. Goldsmith positively identified appellant as her assailant, but she said that earlier he had been wearing a black jacket and a white helmet. The officer went back inside the office and asked which of the two or three helmets on a table belonged to appellant. Someone pointed to a white one. The officer took the helmet and a black jacket, which he obtained from appellant's locker, to Ms. Goldsmith. She identified the items as those worn by appellant.

The trial court granted appellant's motion to suppress the jacket, but denied the motion to suppress the helmet, the identification and the statement. We agree with the trial court that the information known to the arresting officer, including the later description obtained from the officer who was with the victim, and the arresting officer's observations that appellant appeared to match the description was sufficient to support appellant's brief detention to allow the crime victim to view him. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); see also In re J.G.J., 388 A.2d 472, 474 (D.C. 1978). Therefore, we reject appellant's argument that the identification and seizure of the evidence resulted from an unlawful detention and arrest. We reject also appellant's claim that the helmet should have been suppressed because of his expectation of privacy in the open office. The court found, and the record supports, that the office was open to those who walked in, as the officer did here. A brief detention of property for identification is permissible under Terry principles. United States v. Place, 462 U.S. 696, 706, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). *fn2

III.

Appellant next argues that the trial court erred in denying a motion to dismiss based on destruction of evidence and failure of the government to disclose certain physical evidence until mid-trial. The subject of the destroyed evidence claim was the paper towel used by the fourth victim to wipe her face after the incident. She discarded the paper towel after the police officer on the scene told her she could do so when she asked him what to do with it. Under the circumstances, no bad faith was shown on the part of the police officer in failing to preserve the evidence; therefore, the trial court did not err in denying the motion to dismiss. See Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 336-37, 102 L. Ed. 2d 281 (1988). *fn3 Nor do we find an abuse of discretion in the trial court's ruling under Super. Ct. Crim. R. 16. See Brown v. United States, 372 A.2d 557, 561 (D.C. 1977).

Appellant also argues that he was prejudiced by the court's ruling which would have allowed the government to offer in rebuttal the negative test results on a substance taken from another victim's automobile. On the third day of trial the prosecutor informed the court that he had just become aware of the information. In opening statements, defense counsel had alleged that the government had destroyed critical evidence, and the government sought to offer the negative test results evidence to refute appellant's claim. In view of the court's ruling, appellant declined to offer evidence related to the destruction of the paper towel ...


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