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Dang v. United States

December 09, 1999

TRUNG VAN DANG, APPELLANT, V. UNITED STATES, APPELLEE
AND
PHUOC HUV NGUYEN, APPELLANT, V. UNITED STATES, APPELLEE



Before Terry and Steadman, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor, Senior Judge

Appeals from the Superior Court of the District of Columbia

(Hon. A. Franklin Burgess, Jr., Trial Judge)

Argued October 13, 1999

Appellants were convicted by a jury of two counts of first-degree burglary while armed, *fn1 one count of armed robbery, *fn2 and one count of possession of a firearm during the commission of a crime of violence. *fn3 A third co-defendant, Phi Nguyen, appellant Nguyen's brother, named in the indictment and tried with appellants, was acquitted of all charges. On appeal, appellants contend that (1) the trial court erred in admitting photographic arrays that were unduly suggestive, and (2) the evidence was insufficient to support their convictions. *fn4 Additionally, appellant Dang contends the trial Judge abused his discretion with regard to rulings made when questions arose as to the role of official interpreters during the course of the proceedings. We affirm.

I.

According to evidence presented by the government at trial, Ut Ho was celebrating the second day of the three-day Vietnamese New Year holiday with her family and invited guests at her apartment. After dinner, Ut Ho, her granddaughter, and her friend, Hoa Nguyen, went to sleep while other guests and family members gambled. There was money and jewelry on the floor. Around midnight, an uninvited tall man entered the closed but unlocked door of the apartment and asked for Hoa Nguyen. When told that she was asleep, he brandished a gun, and four other males entered the apartment. Three of the four males were identified at trial as appellants and Phi Nguyen, their co-defendant at trial; the fourth was identified as a "short man." The men unplugged the telephone and turned up the volume on the stereo equipment while Dang blocked the door. Sometime thereafter, the tall man and appellant Nguyen each pointed a gun at Mrs. Nguyen while the short man brandished a knife at her stomach; appellant Dang also guarded her at some point. Her jewelry was taken from her. While appellant Nguyen continued to point the gun at Mrs. Nguyen's head, her husband Binh Nguyen moved toward her, but was hit above the eye with the butt of a gun by the tall man and then kicked from behind by appellant Dang. Later the tall man approached a closet containing money and jewelry, which Phuong Ho, Ut Ho's daughter, blocked. After an exchange of words, Ut Ho moved to assist Phuong Ho and was pushed to the ground by the tall man. Appellant Nguyen said, "If you don't shoot her, I will shoot her." At that point, he pointed a gun at Phuong Ho's stomach when her boyfriend pushed him away. The five men ran out of the apartment after taking all the money from the floor.

Phuong Ho called the police from a neighbor's telephone. When the detectives arrived, Mrs. Nguyen identified both appellants and Phi Nguyen by name. On two subsequent dates, both Mr. and Mrs. Nguyen individually identified pictures of both appellants from a photographic array.

Two witnesses testified for the defense that both appellants were at a nearby coffee shop until 1:00 a.m. or later on all three days of the Vietnamese New Year.

II.

Both appellants challenge some of the identification procedures in this case. Appellant Dang asserts that his photograph was unfairly included in each of the arrays shown consecutively to different witnesses. In addition, Dang claims the viewings were defective because there were no other photographs of people, like him, of African-American and Asian descent, included in the arrays.

Appellant Nguyen argues that a photograph of his brother, Phi Nguyen, a person of similar appearance, was improperly included in the array of photographs which also included his photograph.

It is, of course, a familiar concept that the admissibility of evidence of eyewitness identification is to be evaluated by assessing whether the procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 196 (1972). In this instance the trial Judge reviewed the composition of the photographic arrays, as well as the circumstances surrounding the presentation of the photographs to the witnesses. Especially in light of the prior acquaintance of the witnesses and the defendants, the trial Judge found nothing irregular that rose to the level of undue suggestivity. We concur. See Greenwood v. United States, 659 A.2d 825, 827-28 (D.C. 1995); Green v. United States, 580 A.2d 1325, 1326-27 (D.C. 1990)..

Even assuming error on this point for sake of analysis, the record is strong regarding the reliability of the identification testimony presented to the jury. Both Mr. and Mrs. Nguyen, the complaining witnesses, had known both appellants for several years based on contact with them in the neighborhood. In addition, Mrs. Nguyen had cut both appellants' hair at her salon. Lastly, at the time of the crime both witnesses were in close contact with the robbers for an extended time, under adequate lighting, with a full opportunity to observe them. Thus aside from the identification procedures employed here, these witnesses had an independent basis showing a reliability warranting the admission of their testimony. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Additionally, we reiterate that upon initial encounter with the police, both complainants ...


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