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03/23/93 TONY TURNER v. UNITED STATES

March 23, 1993

TONY TURNER, A/K/A DEVON TURNER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Truman A. Morrison, Trial Judge)

Before Rogers, Chief Judge, and King and Sullivan, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellant Tony Turner appeals his convictions of first degree theft, D.C. Code §§ 22-3811, -3812 (a) (1989 Repl.), and second degree burglary, id. § 22-1801 (b), on the grounds that the trial Judge erred in denying his motion to suppress identification testimony and by failing to dismiss the indictment because appellant's Sixth Amendment right to a speedy trial had been violated. We affirm.

I.

Appellant filed a pretrial motion to suppress identification testimony on the ground that in the absence of a positive identification based on the recognition of facial features, the identification based on non-distinctive clothing was too speculative, and that in view of the inherent suggestivity in a show-up identification, an identification based on "a match-up of commonplace clothing" was insufficiently reliable.

At the hearing on the motion, Michael Angel testified that on January 23, 1984, at approximately 5:40 p.m., he entered his home at 1418 C Street, S.E. and saw someone climbing on the bars of the rear kitchen window. It was dusk -- not dark enough to require headlights when driving -- and Mr. Angel could see without the lights on. Mr. Angel went to the rear kitchen door and looked out, through a window in the door, at the person on the kitchen window, who was only about fifteen feet away from him.

The man's back was to Mr. Angel. The man had a brown skull cap, light blue pants, dark brown boots and a beige waist-length jacket. Mr. Angel could also see the man's neck and hair, and could tell that the man was "light-skinned." He estimated that the man was five feet eleven inches or six feet tall, and thought the climber was in his early twenties given his slender build, hair style, and type of clothing. Mr. Angel continued to look at the man for approximately one or two minutes, until he determined that he did not know the man on the window, and then went to a neighbor's house to call the police. When the police arrived approximately fifteen minutes later, Mr. Angel told them what had happened. About ten minutes later, the police told him that they had a suspect for him to view, and brought Mr. Angel outside, in front of his house. He saw appellant standing near a police car, where there were street lights; two police officers were also there. Mr. Angel did not think appellant was handcuffed. Appellant turned around so Mr. Angel, who was standing about five feet away, could see him from all sides. The identification took less than a minute.

The trial Judge denied the motion, crediting Mr. Angel's testimony and finding no suggestivity in the show-up beyond that suggestivity that inheres in every show-up identification. The Judge also examined the reliability of the identification, using the factors set forth in Neil v. Biggers, 409 U.S. 188, 199, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114-16, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), finding that Mr. Angel's observation was made quickly, from a distance of fifteen feet, at dusk, with "sufficient time" to observe, even though he did not see appellant's face, and that Mr. Angel gave 100 percent of his attention to the man on the bars. Noting that there was no evidence concerning the accuracy of Mr. Angel's description to the police, and that the witness had not been asked how certain he was of the identification, the Judge found that the identification took place approximately thirty minutes after the first observation, and there was no evidence that Mr. Angel had failed to identify appellant on any other occasion. Accordingly, the Judge concluded that there was sufficient evidence of the identification's reliability and hence no Fifth Amendment ground existed for prohibiting the government from using the identification evidence.

At trial, Mr. Angel's testimony was substantially the same as his suppression testimony, although he indicated explicitly that he had told the police at the time of the show-up that appellant was the man he had seen outside of this kitchen window; he was "positive." He recognized the man's clothes -- the jacket, pants, boots and cap -- and noted that his complexion, height and build were "very similar." *fn1

Several police officers also testified at trial. Officer Somach testified that when he received a call about the burglary, it was dusk and the caller had said that the suspect was wearing dark blue pants. According to the officer, appellant "matched the description as far as clothing wise," in that appellant had on darkish brown boots and blue pants, and appellant alone was seen in the alley behind Mr. Angel's home. When appellant saw the police car, he made a 180-degree turn and began walking in the other direction. The officer stopped appellant, and another officer took appellant to the police car. There were footsteps in the snow which matched appellant's bootprints and led down the alley to a trash can or dumpster, inside of which there were two television sets; the footprints went from the dumpster to the rear yard of Mr. Angel's house. Officer Carter's testimony was similar, but he admitted that no scientific comparison had been made between appellant's boots and the prints to the dumpster. Officer Randall referred to a red stain on appellant's jacket and the fact that Mr. Angel's house was made of red brick, which looked as if it had been painted. He had first seen appellant about fifty to sixty feet from Mr. Angel's home.

In denying appellant's motion for a judgment of acquittal on the grounds of insufficient identification and insufficient evidence that the person on the bars had committed a crime, the trial Judge observed that:

the fact that somebody wears commonplace clothing isn't dispositive of the matter. The statistical odds of a person wearing boots that . . . appear to be the same, a hat that appears to be the same, pants that appear to be the same, and a jacket that appears to be the same within 100 feet, within 10 to 15 minutes is remote.

Furthermore, the Judge noted, there was additional circumstantial evidence corroborating the identification of appellant in that he was found in back of Mr. Angel's house. *fn2

On appeal appellant contends that the trial Judge erred in denying the motion to suppress Mr. Angel's out-of-court identification of appellant under Stovall v. Denno, 388 U.S. 293 (1966). He maintains that the fact that Mr. Angel made a one-person show-up identification at a time when it was approaching dark, saw only the person's back at the time of the initial observation, and was upset at the time he called the police makes clear, from the totality of circumstances, that the identification was unreliable. Appellant further contends that because the government's entire case rests on the identification, the case should be dismissed for insufficiency of the evidence.

The trial Judge addressed the factors under Neil v. Biggers, supra, 409 U.S. at 197-98, see Henderson v. United States, 527 A.2d 1262, 1269 (D.C. 1987), and we find no error. *fn3 Out-of-court identifications and testimony concerning them are examined under a familiar two-part inquiry. *fn4 This court has repeatedly held that the appearance that the suspect is in custody does not necessarily make an identification so suggestive as to create substantial likelihood of misidentification where the show-up takes place at the scene of the crime within a short period of time after the incident. See e.g., Garris, supra, 559 A.2d at 327 (citations omitted). Suggestiveness arising from the fact that appellant was standing next to the police car and police officers, and was obviously in custody, is the only basis for appellant's claim of substantial likelihood of misidentification: appellant was neither handcuffed nor standing next to the stolen televisions, nor were there any other suggestive factors. There was no more pressure on Mr. Angel to identify appellant than would have been present in any show-up. Cf. Parks v. United States, 451 A.2d 591, 605 (D.C. 1982), cert. denied, 461 U.S. 945, 77 L. Ed. 2d 1303, 103 S. Ct. 2123 (1983).

While a show-up may not be an ideal setting for an identification, it is not sufficient alone to establish a due process violation. *fn5 Manson v. Brathwaite, supra, 432 U.S. at 106 (citation omitted). Indeed, identifications conducted soon after the crime enhance the accuracy of witnesses' identifications and allow innocent suspects to be quickly freed. See Russell, supra, 133 U.S. App. D.C. at 81, 408 F.2d at 1284; United States v. (James) Jones, 170 U.S. App. D.C. 362, 365, 517 F.2d 176, 179 (1975). Appellant has failed to point to any "special elements of unfairness." Russell, supra, 133 U.S. App. D.C. at 84, 408 F.2d at 1284. See also Jones, supra, 170 U.S. App. D.C. at 365, 517 F.2d at 179.

Furthermore, assuming the show-up had created substantial likelihood of misidentification, the trial Judge could properly conclude that identification was still reliable and therefore admissible. See Neil v. Biggers, supra, 409 U.S. at 199. *fn6 Mr. Angel observed appellant on his window for approximately a minute. His attention was focused on the intruder on his window bars: he was checking to see whether he knew appellant. He examined appellant closely enough to determine that the intruder was not anyone he recognized. Mr. Angel called the police with a description only minutes after he observed the man on his window, and identified appellant about thirty-five minutes after those observations. * ...


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