Before Schwelb, Ruiz, and Reid, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Susan R. Winfield, Trial Judge)
Opinion for the court by Associate Judge Schwelb.
Concurring opinion by Associate Judge Ruiz at p._.
Dissenting opinion by Associate Judge Reid at p. __.
On July 18, 1998, following a hearing, a Judge of the Superior Court found probable cause to believe that Jabbar K. Pope had committed the offense of assault with intent to kill while armed (AWIKWA), in violation of D.C. Code §§ 22-503, -3202 (1996). The Judge ordered that Pope be preventively detained without bond pursuant to D.C. Code § 23-1325 (a) (1996). Pope appealed and filed a motion for summary reversal, contending that the issuance of the detention order was erroneous as a matter of law because the Judge based her decision solely on her finding of probable cause and on the circumstances of the charged offense. *fn1 On February 11, 1999, following briefing and oral argument, this court summarily reversed the detention order. *fn2 We now issue this opinion to explain the reasons for reversal.
On July 11, 1998, Pope was arrested on a warrant and charged with AWIKWA in connection with the shooting and wounding of Keith Jones on June 29, 1998. The government requested that Pope be preventively detained, and on July 15, 1998, the trial Judge held a preliminary hearing which also served as a hearing on the government's request for detention.
The only witness at the July 15 hearing was Detective Brett D. Smith of the Metropolitan Police Department. The prosecutor introduced into evidence an affidavit that Detective Smith had executed in support of an application for a warrant for Pope's arrest. Smith was then cross-examined by Pope's attorney. The preventive detention order was based almost exclusively on Detective Smith's testimony. *fn3
Detective Smith testified that during the course of an investigation of Jones' shooting, the police had interviewed an eyewitness who had observed the relevant events. According to Detective Smith, the witness was in the area of the 300 block of Adams Street, N.E. in Washington, D.C. at about 10 p.m. on the evening of June 29. The witness reported that as Jones was walking along the street, Jones was approached by two masked men who began to shoot at Jones with handguns. Jones attempted to elude his assailants by running between two cars and hiding under one of them. The two gunmen positioned themselves on different sides of the car, and each man bent down and fired at Jones while he lay beneath the vehicle. *fn4
The eyewitness reported to the police that while the two gunmen were firing at Jones under the automobile, one man's mask fell from his face. The witness recognized this shooter, from a distance of approximately twenty feet, as someone whom the witness knew by the nickname "Bar." When asked how long the witness had known Bar, Detective Smith responded that the witness had "known of" Bar for approximately a year. According to Smith, the witness subsequently viewed an array containing nine color photographs, and selected the photo of Jabbar Pope as that of the assailant known to the witness as Bar.
On cross-examination, Smith stated that according to the eyewitness, the gunmen's masks covered their entire faces until one assailant's mask fell off while he was firing at Jones under the car. Detective Smith did not ask the witness how long the witness was able to observe the gunman's unmasked face. Smith had no knowledge of the lighting conditions at the location where the assailant's mask dropped to the ground. The witness provided no description of the assailant with respect to skin tone, age, eye color or weight, but he did state that the man was slim. Detective Smith did not know whether the witness had been drinking prior to the incident or whether the witness had any criminal charges pending against him or her. *fn5
The defense presented no evidence. Pope's counsel represented, however, that Pope's sole conviction had been expunged, see note 3, supra, so that Pope had no criminal record. Counsel stated that Pope's parents were in the courtroom, as was Pope's stepfather, a well-known attorney, and that, with the assistance of these individuals, there were conditions short of detention without bond which could assure the safety of the community. Counsel explained that Pope had been employed as a summer intern at a law firm, and he believed that this firm would be prepared to employ Pope as a clerk. Counsel concluded that "when you get to be Mr. Pope's age, in your mid-20's, and you've never been involved in any type of violent activity, that's about as good an indication as any that you're not a violent person," and he predicted that "when we do our investigation, we'll certainly find witnesses who are out there saying it wasn't Mr. Pope."
THE TRIAL JUDGE'S DECISION
Although the trial Judge was plainly troubled by what she viewed as the relative weakness of the government's identification evidence, she concluded that the evidentiary threshold for preventive detention was not a demanding one, and she ordered that Pope be detained without bond:
THE COURT: Here's what you have. You've got the thinnest presentation of probable cause - well, not the thinnest, real close to the line on probable cause but you've got probable cause.[ *fn6 ] If these were strangers, you probably wouldn't have probable cause. Because I can't imagine how someone makes a positive identification of a total stranger or at least how I could find probable cause to credit the identification of a total stranger under lighting conditions that are relatively unknown, probably slightly dark. I don't know how dark but dark. Under stressful circumstances. Even within 20 feet -- for some unknown period of time. It's the unknown period of time and the lighting that concerns me.
But there is a positive identification, as opposed to a looks like or I think so. And it is of someone the person knows by nickname and had known for a year,[ *fn7 ] who[m] he sees within 20 feet. So now the light worries me less and the time period worries me less.
And since probable cause is a very low threshold, it seems to me you've got it. (Emphasis added.)
The Judge rejected a defense argument that conditions short of preventive detention, such as placement in a halfway house, home monitoring, the posting of bond, or some combination of these conditions, would adequately protect the community:
THE COURT: What's weak is identification but not so weak that there isn't probable cause. What's powerful is violence and dangerousness. The facts say this isn't a bracelet[ *fn8 ] case. Right? It's not a halfway house case, even with no social passes. This isn't a go get a job and try and be clean through the trial case.
There's probable cause to believe he committed this offense. And, no, it's not anything come trial time but it is something because at the point of making a detention decision, the legislature has said the issue is probable cause to believe that someone committed the offense and then the standard goes up on dangerousness.
Well, the offense -- the facts and circumstances of the offense, make the evidence very clear and very convincing that the shooters, both of them, are a danger to this community. *fn9
Pope filed a timely appeal, and the parties submitted cross-motions for summary Disposition. On November 6, 1998, this court remanded the case to the trial court for clarification, inter alia, as to whether there was a "substantial probability" that Pope had committed the charged offenses. *fn10 On November 16, 1998, the Judge held a hearing pursuant to the remand and reiterated her prior ruling:
Nothing has changed since we've had the hearing. The finding was . . . probable cause . . . . There is more than probable cause on the event happening, but there is only probable cause on the identification. So, the court cannot make a substantial probability ...