Before Steadman and Schwelb, Associate Judges, and Gallagher,
The opinion of the court was delivered by: Associate Judge Steadman
Appeal from the Superior Court of the District of Columbia (Hon. William M. Jackson, Trial Judge)
Opinion by Associate Judge Schwelb, Concurring in the judgment, at p. ____.
Steadman, Associate Judge: Appellant was found guilty in a juvenile proceeding of armed robbery and assault with a dangerous weapon, and was committed to the custody of the Department of Human Services on February 24, 1997. Appellant argues that the photo array used by the police, found by the trial court to be unduly suggestive, made the resulting identification insufficiently reliable to be introduced as evidence or to sustain the adjudication of delinquency. He also argues that the two charges merge. We affirm the adjudication, while vacating that portion of the judgment finding guilt for assault with a deadly weapon.
Appellant approached and robbed the victim, a lawyer living on Capitol Hill, on April 24, 1996, while it was still light out. The victim was driving her car home, and appellant was riding a small pink bicycle. The victim took specific notice of appellant in her rear-view mirror as she surveyed her surroundings from her car. Though she looked at him only briefly, she focused on him enough to Judge from his apparent age and his child-style bike that he appeared to pose no threat. When the victim parked moments later and emerged from her car, she was confronted by appellant, who demanded her bag and struggled over it briefly. Immediately after the victim released the bag appellant stabbed the victim in her side with an unknown object, presumably but not necessarily a knife of some sort. Appellant then sped away on his bicycle. The encounter, during which appellant and victim were within an arm's length of each other, lasted approximately seven seconds. The victim testified that in the encounter she was focused on appellant's face and eyes, that he did not look away or avoid eye contact but was very direct, and that she never took her eyes off him. Afterward, the victim walked across the street to her house. After about a minute, she noticed she was bleeding and called 911. During that call, she gave a description of the perpetrator as a fourteen or fifteen year old boy with a normal, slight build and a large Afro, and asked for an ambulance.
The victim was first presented with a photo spread on May 16, 1996. At that time she selected two people who she thought might have been the robber at an earlier age, *fn1 but stated she was "not at all sure." Appellant's picture was not in that photo array. Six months later, a detective presented the victim with a photo of a lineup, and this time the victim identified the appellant without any question. *fn2 At trial, the victim also made a positive in court identification of the appellant.
Appellant argues that the second photo, a lineup of seven individuals with Afros among whom, as the court found, appellant was the youngest and the only one without any facial hair, was unduly suggestive and that thus both the out of court and in court identifications by the victim were tainted and should have been excluded as evidence under the doctrine of Manson v. Brathwaite, 432 U.S. 98 (1977).
Although the trial court did not find any leading behavior or intention on the part of the police during the identification process, the court agreed that the lineup photo itself was unduly suggestive in its formation. *fn3 However, in suppressing an identification, suggestivity is not the end of the inquiry. United States v. Walton, 411 A.2d 333, 337-38 (D.C. 1979). The trial court found the victim's identification of appellant reliable despite the faulted lineup and, in an appropriate use of its discretion, permitted evidence of the identification. We accord considerable deference to a trial court's determination of reliability based on that court's greater opportunity to assess the witness. Morriss v. United States, 554 A.2d 784, 788 (D.C. 1989); Henderson v. United States, 527 A.2d 1262, 1269 (D.C. 1987).
The factors that must be Judged in a reliability determination of an identification preceded by suggestive police procedure are outlined in Manson v. Brathwaite, supra, 432 U.S. at 114 as follows:
"the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."
In this case, the reliability of the victim's identification was supported by the fact that she was in close proximity to the robber during the incident, she focused on the robber's face, she gave an accurate and specific description to the police, and she felt a high degree of certainty about her final identification. Additionally, she refrained from making misidentifications when given the opportunity to do so during the first police identification procedure. Further, the trial court found that the victim's in ...