Before Steadman, Glickman and Washington, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Robert E. Morin, Motions Judge) (Hon. Henry F. Greene, Trial Judge)
Late one summer evening, appellants were crossing Duke Ellington Bridge in a car. They accosted two women walking along the bridge and robbed and pistol-whipped one of the women.
The principal issues on appeal have to do with the trial court's refusal to suppress evidence of "show-up" identifications and the contents of a clutch purse seized on a "plain view" theory. Both involve somewhat unusual factual features. First, the show-up identifications were made not only at the scene of the original detention of appellants a few minutes after the event, but also an hour later at the hospital where the beaten woman had been taken for treatment. Second, an identification card in the name of one of the women was spotted by an officer located in a clutch purse in plain view, sitting on the front seat of appellants' car. However, the "plain view" had been created, so to speak, by another officer when, while searching the car for weapons, the officer had moved the purse from a glove compartment to the car seat and failed to place it back into the compartment after the search. Appellants raise a number of additional issues as well. We affirm.
As two female pedestrians were walking across the Duke Ellington Bridge from Adams Morgan to Connecticut Avenue shortly after midnight on August 23, 1996, a car approached. Men in the car made harassing comments to the women, which they ignored. As the women continued to walk away, the car cut in front of them. A man alighted from the vehicle, brandishing a weapon. One pedestrian, Ms. Moriconi, ran across the street to avoid the car, and hid behind a street light. But the other pedestrian, Ms. Dizon, remained and was faced by the assailant directly. The assailant pointed the gun at her and grabbed her clutch purse away from her. The man then hit her in the face with the gun, saying "I don't like your attitude, bitch," and got back into the car. The car drove away, passing within seven feet of Ms. Moriconi.
Police responded shortly thereafter and were given descriptions of the assailant and the driver, as well as the car they drove. The police broadcast a lookout for the car and for the two men, one of whom was said to be armed. In a matter of minutes, an officer spotted a car matching the description, heading the wrong way with its lights off on California Street, in the vicinity of the crime. The officer tried to pull the car over, but the car sped away. After a short chase, the car was eventually stopped by another police cruiser at Kalorama Circle. Several officers were on the scene as the car was stopped and the passenger, who was appellant Maddox, and the driver, who was appellant Davis, were removed from the vehicle.
While Maddox and Davis were secured, another officer, Officer Felicia Toronto, searched the car for weapons. The glove compartment was open, so the officer looked inside and removed a clutch purse that was obstructing her view of the compartment. The officer placed the purse on the passenger seat and continued to search, but did not find a weapon. She left the purse, apparently open, on the seat.
Detective Hugh Carew then came to the scene and observed, through the window of the car, the open purse and an exposed identification card of Debra Dizon. He called an officer at the scene of the crime to confirm whether one of the complainants' names matched that of the identification on the passenger seat. After finding that the identification did indeed match the name of the victim, he seized the purse.
While Ms. Dizon was taken to a local emergency room for treatment for a serious gash inflicted by the assailant's weapon which required at least 40 stitches, Ms. Moriconi was escorted from the crime scene to the spot where the car was stopped to determine whether the men stopped could be identified as the perpetrators. Prior to arriving, she was informed that two men fitting her general description had been found. There, she identified appellant Maddox as the assailant and appellant Davis as the driver of the car involved in the incident. Approximately an hour later, the police brought Maddox to the hospital where Ms. Dizon was being treated. There, she identified Maddox as the assailant.
Pre-trial, the trial court denied appellants' motions to suppress evidence of these identifications by the two victims. The court likewise denied a motion to suppress the clutch purse and its identification card.
Subsequently, a jury found Maddox guilty of armed robbery under D.C. Code §§ 22-2901, -3202, and possession of a firearm while committing a crime of violence under D.C. Code § 22-3204(b). The jury also found Maddox guilty of assault with a deadly weapon as a lesser included offense of aggravated assault while armed under D.C. Code §§ 22-504.1, -3202, and Davis guilty of the same offense as an aider and abettor.
There are seven distinct issues on this appeal. Both Maddox and Davis appeal their convictions on the bases that (1) the identification card and the purse were improperly admitted because they were not properly in plain view, nor were they inevitably discoverable, and (2) the out-of-court "showup" identification by Ms. Moriconi was improperly admitted because it was unduly suggestive and not otherwise reliable. Maddox argues that (3) his out-of-court identification by Ms. Dizon was likewise improperly admitted for the same reasons. Maddox also argues that (4) his assault count merges into the armed robbery count, (5) there was insufficient evidence to support the armed element of his convictions, and (6) the jury instruction regarding the assault with a deadly weapon charge constructively amended the indictment against him by allowing the jury to find he possessed a weapon other than a pistol. In addition to the mutual claims, appellant Davis argues that (7) there was insufficient evidence to convict him as an aider and abettor to the assault with a deadly weapon. We reject all of appellants' arguments.
We address first the seizure of the purse and its contents. On appeal from a denial of a motion to suppress, deference must be given to the trial court's findings of fact, but review of the trial court's legal conclusions is de novo. Davis v. United States, 724 A.2d 1163, 1167 (D.C. 1998); Womack v. U.S., 673 A.2d 603, 607 (D.C. 1996), cert denied, 519 U.S. 1156 (1997). Moreover, the evidence presented at the suppression hearing must be viewed in the light most favorable to the prevailing party, here the government, and this court must draw all reasonable inferences in that party's favor. Womack, 673 A.2d at 607.
At the suppression hearing, the motions court found that police officers witnessed appellants' car traveling the wrong way down a one- way street with its lights off at night, and that the car matched a lookout description broadcast over police radios minutes prior to the sighting. The car was stopped after a short chase and once the appellants were removed, an officer conducted a search of the car "solely for the purpose of looking for a weapon." That officer removed a clutch purse from the glove compartment, but did not "inspect the . . . purse." Subsequently, another officer observed the purse and exposed identification card in plain view and, after confirming that the identification card was that of the victim, retrieved the purse.
The touchstone of the Fourth Amendment is reasonableness. Based on the facts here, we conclude that the police acted within constitutional bounds. United States v. Watson, 697 A.2d 36, 39 (D.C. 1997) ("The reasonableness of a search or seizure must be judged against an objective standard, that is, whether the facts available to the police officer at the moment of seizure warrant a man of reasonable caution in the belief that the seizure was reasonable.") (quotations omitted). First, the stop of the vehicle was permissible. While a stop of an automobile is certainly justified by probable cause, an "investigatory stop [of a vehicle] is also permissible if the police have a reasonable suspicion of criminal activity." Russell v. United States, 687 A.2d 213, 214 (D.C. 1997). Here, the obvious traffic violations alone were enough to meet the higher standard of probable cause to justify the stop. Id. (holding "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred") (quoting Whren v. United States, 517 U.S. 806, 809 (1996)). Even absent the violations, however, there existed at least a reasonable suspicion of criminal activity because the description of the ...