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Ifelowo v. United States

August 02, 2001

BABAJIDE IFELOWO, APPELLANT
v.
UNITED STATES, APPELLEE



Before Schwelb, Reid and Glickman, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. John H. Bayly, Jr., Trial Judge)

Argued June 13, 2000

In this case, appellant Babajide Ifelowo, who was convicted of several criminal offenses, *fn1 contends that the trial court (1) abused its discretion by failing to sever counts of the indictment relating to three separate events; (2) erred by: (a) limiting his cross-examination of a rebuttal witness with respect to credibility, while permitting the government to bolster the witness's credibility during closing argument; and (b) failing to give the complete standard instruction regarding witness immunity. We affirm the trial court's judgment of convictions. We hold that the combination of consistent features of each of the three robberies outweighed the variations, and that any striking differences were cured by the rebuttal testimony of the other robber, Shotikare, who implicated Ifelowo in all three incidents. We summarily dispose of Ifelowo's other arguments.

FACTUAL SUMMARY

The government presented evidence against Ifelowo, in its case in chief, through several witnesses. Their testimony shows the following events, information, and allegations. Ifelowo and Shotikare, former roomates who both lived previously in the same West African country, were indicted for the same criminal offenses which took place on three separate days in February 1997, in the District. Each of the crimes involved the use of the same vehicle. On February 3, around 10 p.m. at Vermont and K Streets, N.W., Allan Haley, a former language instructor, withdrew $70.00 from the ATM machine at the First Union bank. As he was trying to obtain more money from the machine, a man with a foreign accent, which Mr. Haley described as "similar to a couple of guys [he] had worked with from the Ivory Coast or Cameroon, West Africa[,]" demanded the money he held in his hand. The man, later identified as Shotikare, was in his late 20s or early 30s, medium to dark-complected, 6'1" tall, and weighed about 180 pounds. Shotikare "had his right[] hand in his jacket pocket and, [] it was raised toward [Mr. Haley] as if it were a firearm." The man made a second demand for money, saying: "[G]ive me the money in your hand or I will blow your f-k-g head off." After Mr. Haley gave him the money, Shotikare "turned, and walked back to the car[,]" "a gray or silver 80's model hatchback," which was located about twenty feet away. The license tag of the car was covered with yellow-brown cardboard. When asked to "describe the manner in which Shotikare walked back to the car[,]" Mr. Haley said: "He seemed pretty cool about it."

Mr. Haley said little about the driver of the car. He was asked: "Could you tell during the incident whether the driver was paying attention to what was going on?" He responded: "[W]hen I looked at the driver he was looking straight ahead, . . . which would not be at me, but he was looking straight ahead down the street." When the prosecutor inquired whether Mr. Haley was "able to describe what the driver . . . looked like[,]" he replied: "Just that he was a black man with what appeared to be a moustache. . . . And he had fairly prominent cheek bones."

Several days after the incident, a police detective showed Mr. Haley "a group of photos and asked [him] to look through them." Mr. Haley set aside two photographs, and eventually selected one, which was a picture of Shotikare, as the man who robbed him. He was unable to identify the driver of the getaway car because he "didn't see his face . . ., [and] only saw him at a distant profile."

Ms. Sibley was walking to her home in the Georgetown area of the District from Georgetown University on the evening of February 6, 1997, around 9 p.m., when she crossed Wisconsin Avenue, N.W., moving toward P Street, N.W. Suddenly, she encountered two men who "stepped out from . . . behind a tree . . . box." The man "on [her] left had his hand in a pocket of [his] coat and he said this is a gun, give us your bag." Ms. Sibley commented more than once about how "quiet" the event was: "[I]t was very, very very quiet, and it was hard for me to hear." She did not detect a foreign accent in either man's speech. *fn2 The man on Ms. Sibley's "right said this is a gun [a]nd he also had his hand in his pocket and said this is a gun, give us your bag." Ms. Sibley held out her purse, and one of the robbers took it after asking whether it contained money, and she replied that it did. She was directed to walk toward Wisconsin Avenue. She complied, but turned around and saw the men get into an automobile. She stated: "[I]t was strange because it was a small car and they seemed extremely tall to me." *fn3 At that moment, a passerby who lived in the neighborhood, Dale Overmyer, was walking down the street.

Mr. Overmyer noticed a few people in front of his house in the 3100 block of P Street, N.W., whom he did not recognize. He then saw Ms. Sibley who "stopped [him] and said she [had] just been robbed by these two men." When Mr. Overmyer looked, he saw "two black men getting into a car." He started to run toward them but stopped when Ms. Sibley warned him that "they have got guns." He asked whether Ms. Sibley was "okay." When she said, "yes," he looked at the car again. He saw "two black men." However, "[t]here wasn't anything distinguishing about them . . . . [T]hey weren't real short or wearing anything strange or anything that particular that [he] would remember." *fn4 He never saw the faces of the men. The car in which the men drove away was "a light gray or light silver, very small car like a two door hatchback. Sort of an older model." The men "weren't fleeing in a hurry. The car didn't screech out or speed away in a real hurry. It just drove away normally." Mr. Overmyer did not notice the license plate of the car.

When a police officer questioned Ms. Sibley about the robbery, she described the robbers as "tall and thin," and black. Approximately six days after the robbery, a police detective contacted Ms. Sibley and asked her to look at some photographs of men, and one or two photographs of a car. She picked out two photographs of men, but could not identify the car. The police officer who showed the photo array to Ms. Sibley testified that she selected the pictures of Shotikare and Ifelowo as those of the men who robbed her. She stated that Ifelowo was the man on her left during the robbery, and that Shotikare was the person closest to her, to whom she gave her purse. In court, Ms. Sibley also identified the picture of Ifelowo as the man who was on her left during the robbery.

Around 9 p.m. on February 11, 1997, Georgia and Benjamin King, husband and wife, were walking home after having seen a movie. They crossed 31st and N Streets, N.W. In the middle of the block was a dumpster, in front of a house that was being renovated. Mrs. King saw that a "car had . . . stopped and two young men jumped out of the car. One came around the dumpster" and "stopped" the Kings. "He had a big knife in his hand and said in an accent what sounded like, `This is a stuck up.[ *fn5 ] Give me your . . . money.'" Mrs. King recalled that he had a "very pronounced accent," and wore light pants and a "darker top." She described the knife as "a butcher knife." The man "was holding [the knife] at [her] husband's stomach. . . ." The other young man, who "had not come to the sidewalk, [] asked for [her] hand bag." She saw no weapon in his hand. Mrs. King told the man that she didn't have a hand bag. She had no money at all on her person. Mr. King removed his wallet and gave money to the man with the knife. The men then got into the car which they had left "double-parked on the street with the engine running and the passenger door open." Mrs. King described the car "[a]s being a small hatch back, light color, whitish; white color. White in color. With the tag being covered by something beige or yellow. . . ." Later that same evening, Mrs. King was taken to a location where she identified the car. She was unable to identify the two men. She commented that one "looks about right but I couldn't tell about the face." She explained that "the height and the build" and the clothing "look[ed] about right" with respect to the man with the knife.

Mr. King's account of the robbery was similar to that of his wife. However, he said that during the robbery, the second man was "[s]tanding by the car." Immediately after the robbery, the man with the knife "ran into the street and got into the [passenger side of the] car." He remembered only that the car "was small, light-colored and looked a bit beat up." He asserted that the accent of the man with the knife "sounded somewhat West African to [him]." He was unable to identify either robber at the show-up identification location.

Officer Michael Barron of the Metropolitan Police Department ("MPD") was on duty around 9 p.m. on February 11, 1997, in his privately owned vehicle. He was on "a robbery detail in plain clothes," and was situated in the 1200 block of Wisconsin Avenue, N.W. He began to follow what appeared to him to be a suspicious pedestrian. However, he saw "a silver or gray colored car," which was a small hatchback with two doors and a piece of cardboard where the license tag is usually placed, carrying two black males who looked tall and thin. He began to follow the car instead of the suspicious man on the street, because he thought its occupants fit the description of a robbery that had occurred earlier in the week. The car in which the men were riding came to an abrupt stop near 31st and N Streets, N.W. Officer Barron pulled his vehicle to the side. He watched the two men get out of the car and walk to the sidewalk. The dumpster obstructed Officer Barron's sight, and he decided to drive over to the car from which the men had exited. He stopped behind the car and left his headlights on. He observed Ifelowo and Shotikare "walking away from an elderly couple . . . ." Ifelowo "was carrying a light blue knit cap in his hand," which had "a glint of metal," and Shotikare carried "a black knit cap." The men walked to the car and Shotikare got into the driver's seat, and Ifelowo into the front passenger seat. He saw Shotikare's face, and noted that Ifelowo "had on a black T-shirt and gray sweat pants." Officer Barron chased the car, with the assistance of other MPD officers. The car was stopped and Ifelowo and Shotikare were removed. Later, a knife was recovered from 28th and N Streets, N.W.

Ifelowo testified in his own defense. He denied committing the robberies. In addition, he denied being in a car with Shotikare on February 3rd and 6th. However, he acknowledged that he was in a car with Shotikare on February 11th. He stated that he had been shopping in Georgetown and as he was about to catch a bus home, he saw Shotikare who offered him a ride home. Ifelowo accepted the ride, and shortly after he got into the car, the police stopped it. Four other defense witnesses presented character testimony in Ifelowo's behalf.

The government's main rebuttal witness was Shotikare, who testified against his will, pursuant to a grant of immunity. *fn6 He stated that Ifelowo was with him during each robbery. Ifelowo drove the car for the first robbery and remained in the car while Shotikare demanded money from Mr. Haley. Both men, however, demanded Ms. Sibley's hand bag. Shotikare said he drove the car for the ...


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