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Smith v. United States

August 02, 2001

CURTIS A. SMITH, APPELLANT
v.
UNITED STATES, APPELLEE



Before Terry and Farrell, Associate Judges, and Gallagher, Senior Judge.

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

Appeal from the Superior Court of the District of Columbia (Hon. A. Franklin Burgess, Jr., Trial Judge)

Argued January 2, 2001

On January 9, 1997, after a jury trial, appellant Curtis A. Smith was convicted of armed robbery in violation of D.C. Code §§ 22-2901 and -3202 (1996). Smith raises three issues on appeal. First, he argues that the trial judge erroneously denied his motion to suppress the identifications of two eyewitnesses. Second, he asserts that the trial judge improperly permitted the government to introduce evidence of his pre-trial flight. Finally, he posits that the government failed to present evidence sufficient to establish that he was armed and, therefore, that the trial judge incorrectly denied his motion for judgment of acquittal on the armed robbery charge. We disagree with Smith's arguments and affirm.

I.

At approximately 11:00 p.m. on April 19, 1996, Officer Tim Harris and another member of the Metropolitan Police Department ("MPD") were outside a Checkers drive-in restaurant in the District of Columbia. Officer Harris recognized Smith as he walked by and asked him if his name was Curtis Snowden. Officer Harris thought he knew Smith from McFarland Junior High School. Smith responded by saying that his first name was Curtis, but that his last name was not Snowden. Smith then asked Officer Harris if he knew his cousin, Nigel Brown, who was also an MPD officer.

During their conversation, appellant Smith was wearing a red jacket, a gray sweat shirt, gray sweat pants, and had a "dark, puffy" eye and a mustache. Following their conversation, Smith walked across the street to a pay phone only to return to the area around the restaurant a short time later. He then went into the restaurant, stood around for a few minutes, ordered a beverage, and left. Soon thereafter, he approached the "low-side" drive-up window from the outside, pushed Diane Williams, the Checkers employee servicing the drive-up window, and "started going through the [cash] drawer." With his right hand in his jacket pocket, Smith used his left hand to pilfer the cash register. During the robbery, Smith's right hand and, thus, right jacket pocket were pointed through the window in the direction of Williams and Brenda Kearney, another Checkers employee. Both Williams and Kearney testified that they believed Smith had a gun inside his right jacket pocket. No one, however, saw Smith holding a gun, nor did anyone actually observe a gun on Smith's person. A gun was never recovered. At some point, Johnnie Washington, a manager at the restaurant, approached Smith from the inside of the restaurant. Upon seeing Washington, Williams testified that Smith "told [the manager] to the stay the **** back before he shoot him." Kearney testified that Smith's exact words were, "Move - move back or I'll shoot." Calls for help ensued and Smith quickly fled the scene.

Upon hearing the pleas for assistance, Officer Harris, who was still in the vicinity, pursued Smith by following the directions of those who had witnessed Smith's flight. However, he was unable to locate Smith and returned to the restaurant a short time later. Kearney then told Officer Harris that the perpetrator was "[t]he guy with the red jacket that was talking to you outside in the picnic area." *fn1 In addition to observing him during the robbery, both Williams and Kearney had seen Smith inside, or just outside, the restaurant prior to the commission of the crime. In fact, Kearney had served him a beverage just prior to the robbery.

Kearney and Williams provided similar descriptions of the offender to the investigating detective, MPD Detective Larry West. Kearney told Detective West that the perpetrator was wearing a red jacket, had a "black eye," was approximately thirty-five years old and five feet eight inches tall, and had a complexion similar to Kearney's. *fn2 Williams described the robber as a "brown-skinned" black male, in his thirties and six feet tall, with a "black puffy eye" who was wearing a red sweat shirt with pockets. *fn3

On August 27, 1996, MPD Detective Diana Pristoop showed Officer Harris a photo array which contained nine photographs. Officer Harris selected Smith's photograph. With Officer Harris' identification, Detective Pristoop was able to secure an arrest warrant.

She also proceeded to conduct identification procedures with Washington, Kearney, and Williams. On November 1, 1996, Detective Pristoop showed Washington two group photographs of a September 25, 1996 line-up. *fn4 Washington ultimately identified a police "filler," and not Smith, as the perpetrator of the crime.

Feeling that the depictions of the men in the two group photographs were not optimum for identification purposes, Detective Pristoop enlarged the group photographs and separated them by individual. On November 6, 1996, Kearney and Williams were exposed to this "new" photo array. The array consisted of fourteen total pictures, two each of the seven subjects who made up the September 25, 1996, group line-up. Both Kearney and Williams were shown the photo array separately. *fn5 Without hesitation, Kearney selected Smith's photograph, signing "That's him" on the back of the photograph. Williams also picked Smith's picture, noting "This looks exactly like him. Positive that's him!" on the back of the same photograph.

Following Smith's arrest, on September 17, 1996, Deputy United States Marshal Christopher Layer brought Smith to a preliminary hearing for the charges stemming from the robbery. According to Deputy Layer, when the trial court ruled that Smith was to be held without bond pending trial, Smith attempted to flee the courtroom. A plainclothes MPD officer apprehended Smith before he could escape.

Sandra Dockery, Smith's mother, testified at trial that her son briefly attended McFarland Junior High School and that Officer ...


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