Before Terry and Schwelb, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Paul R. Webber, III, Trial Judge) (Hon. Judith E. Retchin, Motions Judge)
Appellants Gregg and Richardson were convicted of second-degree burglary while armed, *fn1 armed robbery, *fn2 and possession of a firearm during a crime of violence. *fn3 On appeal, they both challenge the trial court's denial of their motions to suppress their showup identifications; they also contend that the evidence was insufficient to support their convictions. We find no merit in these arguments. Gregg also maintains that the court erred in denying his motion to vacate sentence under D.C. Code § 23-110 (1996), based on a claim of ineffective assistance of counsel. He maintains that his attorney's absence from the courtroom during portions of the voir dire of the jury constituted ineffective assistance per se. Although the question is a close one, we conclude that Gregg was not denied his Sixth Amendment right to counsel. Accordingly, although counsel's departure from the courtroom was ill-advised, and although the trial judge should not have acquiesced in it, we affirm the convictions of both appellants and the denial of Gregg's § 23-110 motion.
Shortly before 6:00 p.m. on July 24, 1995, a dark-skinned man wearing dark clothes and a black hat (later identified as appellant Gregg) entered a Murry's Steaks carry-out on Benning Road, N.E., and purchased some styrofoam cups. When Jimmy Bennett, the cashier, opened the cash register to complete the sale, another man (later identified as appellant Richardson) entered the store wearing a shiny black shirt, black pants, sunglasses, and a bandanna over the lower part of his face. He pointed a gun at Mr. Bennett and ordered him to leave the cash register drawer open. A customer attempted to leave the store, but Richardson grabbed her and pulled her back inside. While Richardson's attention was momentarily diverted, Bennett tapped on the front window of the store to get the attention of Vaughn Galery and Crystal Skinner, who were standing outside on the sidewalk, engaged in conversation. *fn4 Galery turned and saw Richardson pointing a pistol at Mr. Bennett, whereupon Galery and Skinner immediately ran to a fast-food restaurant across the street.
Richardson noticed Bennett tapping on the window and instructed him to "hurry up." Bennett handed Richardson the cash register drawer, but Richardson, apparently nervous, dropped it on the counter. He quickly picked up the drawer and placed it in the plastic bag with the styrofoam cups, which Gregg was holding. Gregg then helped Richardson collect the coins that had fallen out of the drawer and put them also in the bag. After the two left the store, Bennett called 911 and gave a description of the robbers. He described the first one (Gregg) as tall, heavy-set, and brown-skinned. The second one (Richardson) he described as heavy-set and dark-skinned, about 5'7" tall, and wearing all black clothing.
Galery watched from across the street as the two robbers came out of the store and drove away in a black Cadillac with chrome wire wheels. He then called the police and gave them a description of the car and the robbers' clothing. The police dispatcher broadcast a lookout for the two robbers, based on descriptions provided by Bennett and Galery. *fn5
Approximately half an hour later, Metropolitan Police Officer Kurt Delpo spotted a black Cadillac about two miles from the scene of the robbery. Gregg was driving, and Richardson was riding in the front passenger seat. When Officer Delpo pulled his unmarked police car up beside the Cadillac, Richardson jumped out and ran. Officer Delpo gave chase, but eventually lost him. Gregg, however, was detained by another officer.
Shortly thereafter, Officer Adrian Treadwell spotted Richardson crouching behind a bush in the 100 block of 47th Street, N.E. Richardson ran when he saw Officer Treadwell, but the officer pursued and caught him. Upon learning where Richardson had been found, Officer Delpo retraced the route he believed Richardson had taken and found a black cap in an alley. The police also recovered a pair of black sweat pants, a red cap, a bandanna, and a pair of sunglasses from the Cadillac. However, they did not find a gun, the cash drawer, any coins, or a Murry's Steaks plastic bag inside the car.
The police took Gregg and Richardson back to Benning Road for identification by Galery and Bennett. By then approximately sixty-five minutes had passed since the robbery. Before the identifications, police told the witnesses that the persons they were going to view "matched the descriptions" they had given of the two robbers. Galery and Bennett individually viewed each appellant separately from inside Murry's Steaks, looking out through the front window. Appellants were on the other side of Benning Road, approximately twenty-five yards away. Their hands were cuffed behind their backs, and they were surrounded by several officers and three police cars. Detective William White, who stood next to Galery and Bennett while they made the identifications, testified that there were "no obstructions" between the witnesses and the two suspects and that the witnesses could see Richardson and Gregg well enough to distinguish their clothing and facial features. Without hesitation, both Galery and Bennett positively identified appellants as the two men who had robbed the store.
Appellants' challenges to the showup identifications as unduly suggestive and unreliable are meritless. Neither the custodial appearance nor the officers' statement that the appellants "matched the descriptions" given by the witnesses rendered the identifications unduly suggestive. Singletary v. United States, 383 A.2d 1064, 1069 (D.C. 1978) (with suspects seated in police car, witnesses were told, "We got two guys in the car similar to the ones you told us about"); see Turner v. United States, 622 A.2d 667, 672 (D.C. 1993) (suspect was standing next to police car and police officers and was obviously in custody, but not in handcuffs); Garris v. United States, 559 A.2d 323, 327 (D.C. 1989); Fields v. United States, 484 A.2d 570, 574 (D.C. 1984), cert. denied, 471 U.S. 1067 (1985); Washington v. United States, 334 A.2d 185, 186 (D.C. 1975) (detective told victim, "We got your man, we think"); Jones v. United States, 277 A.2d 95, 98 (D.C. 1971) (suspect was seated in the back of a police car in handcuffs when witness identified him).
To the extent that they may have been suggestive, the identifications were nonetheless reliable. See Stewart v. United States, 490 A.2d 619, 623 (D.C. 1985) (listing factors which courts consider when assessing reliability of an identification); accord, e.g., In re B.E.W., 537 A.2d 206, 208 (D.C. 1988); Taylor v. United States, 451 A.2d 859, 863 (D.C. 1982), cert. denied, 461 U.S. 936 (1983). Both witnesses had an opportunity to view the robbers for several minutes and provided accurate descriptions of the robbers, including their height, weight, skin color, and clothing, and a description of the car in which they fled. Both positively identified appellants without hesitation a little over an hour after the robbery. See Washington, 334 A.2d at 187 (identification made more than an hour after crime); Jones, 277 A.2d at 98 (identification made one hour after crime). Finally, viewing the evidence in the light most favorable to the government, as we must, White v. United States, 714 A.2d 115, 118 (D.C. 1998), we hold that the evidence was sufficient. Not only were the identifications reliable, but other evidence, including the kind of clothing worn by appellants and the car they were driving when they were apprehended, supported the verdict.
Following the initial questioning of the jury panel by the court, Gregg's counsel requested permission to be absent during a portion of the individual voir dire of the potential jurors:
The Court: Mr. Finnerin [courtroom clerk], I'll ask you to set up in the jury room. And when we come back, counsel, do your clients ...