Appeals from the Superior Court of the District of Columbia (No. CR F-9887-97) (Hon. Michael L. Rankin, Trial Judge)
Before Steadman, Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appellant was convicted by a jury of an aggravated armed assault with intent to rob Roland Ngong. *fn1 After the trial itself had begun, the government furnished appellant with Ngong's grand jury testimony, which appellant contends undermined the accuracy of Ngong's identification of appellant. The principal issue before us is whether the trial court erred when it denied without a hearing appellant's post-trial motion alleging that (1) the government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose Ngong's grand jury testimony in a more timely manner; and (2) trial counsel's failure to move for a mistrial or make a motion to suppress Ngong's allegedly impermissibly suggestive post-attack identification of appellant amounted to ineffective assistance of counsel. *fn2 We remand the case for further consideration of the ineffectiveness claim with respect to the failure to file a suppression motion.
Around four o'clock in the morning of December 21, 1997, Roland Ngong was walking home when he was accosted by a person demanding money. The assailant was carrying something close to his chest, later identified as a shotgun. Although Ngong pulled fifty dollars from his pocket in an attempt to comply with his assailant's request, he felt that the assailant was becoming more aggravated. Ngong was scared he would be shot whether or not he gave the man his money. Therefore, he shoved the assailant's gun with his left hand. The gun fired and shot Ngong through the palm of his left hand, and sprayed pellets into his face. Ngong then ran away, followed by his assailant, who eventually turned off in a different direction. Ngong ran home and called 911 to request an ambulance. During the 911 call Ngong described his assailant as a black man with a dark complexion, approximately 16 to 20 years old, with no facial hair, wearing a blue or black jacket with the hood up, blue or black jeans, and carrying a blue bag.
Waiting for medical treatment at the hospital, Ngong happened to be seated outside a hospital room occupied by appellant, who had also come to the hospital with a gunshot wound. As Ngong testified at trial about noticing appellant: "I saw a gentleman who looked like the guy that robbed me. I just kept quiet since I didn't know what brought him out there. I didn't want to - I didn't want to be assessed as being stupid or something, acting stupid." *fn3
While in the process of questioning Ngong at the hospital, *fn4 the investigating detective became aware of the fact that another individual, appellant, was being treated for a similar gunshot wound to the hand. The detective then interviewed appellant, who told him that a 6 foot to 6'1" man "wearing a dark-colored jacket and a hood with a sawed off shotgun, blue jeans, and black boots" approached and attempted to rob him. In the ensuing struggle, the shotgun went off and hit appellant in the hand. During this interview the detective became suspicious of appellant because the description both Ngong and appellant offered of their assailant matched the appearance of appellant and because appellant was evasive about where he was prior to and at the time of the shooting as well as how he had been shot.
The detective picked up a dark jacket on the floor of appellant's room, took it to Ngong, and, according to Ngong, asked if it looked like his assailant's jacket. Ngong responded in the affirmative *fn5 . Ngong testified that some police officer also brought in a pair of boots and asked if they looked like the assailant's boots. Ngong again responded in the affirmative. *fn6 Then the detective asked Ngong to look through the window separating his own room from the treatment room next to his and see if the "guy in the room next door is the guy" who had robbed him. Without hesitation, Ngong positively identified the appellant as the person who had robbed him. *fn7 Appellant was then placed under arrest.
At trial, consistent with what his counsel had already set forth in opening statement, appellant testified that he and Ngong had an encounter, but claimed that he was the victim and Ngong was the assailant. He testified that while en route to his girlfriend's house he was confronted by a dark skinned man between 5'6" and 5'9" that looked like Ngong, whom he identified in court. This man repeatedly asked him for money and carried an unzipped duffle bag from which an inch or two of a gun barrel protruded. After a struggle in which appellant put his hand inside the duffle bag, appellant claims he accidentally fired the gun, shooting himself in the hand. *fn8 From there he went directly to the hospital, arriving before Ngong.
Appellant first argues that he is entitled to a new trial because the government violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963) by failing to provide the defense with Ngong's grand jury testimony during pre-trial discovery. *fn9 Appellant asserts that the grand jury testimony constituted Brady material because it demonstrated that (1) Ngong did not initially identify with certainty the appellant during their chance encounter at the hospital (see note 3, supra) and (2) the police-sponsored show up was suggestive and unreliable. *fn10 From this premise, appellant contends that he did not receive the Brady material "in time to use it effectively at trial." Edelen v. United States, 627 A.2d 968, 971 (D.C. 1993).
While Ngong's grand jury testimony essentially tracked his trial testimony, appellant argues in essence that this Brady material came too late because he had already made his opening statement. He asserts that he would have presented his defense in a different light, both by way of his defensive position, see note 12, infra, and by a pretrial suppression motion, had he been previously apprised of the grand jury testimony. However, the information clearly came in time for appellant to have moved during the trial itself for a mistrial on this basis or to suppress the identification, which he did not do. Cf. United States v. Wilson, 333 U.S. App. D.C. 103, 112, 160 F.3d 732, 741 (1998) (no Brady plain error where counsel failed to request a continuance or move for a mistrial and instead made effective use of the statements at trial), cert. denied, 528 U.S. 828 (1999); State v. Bryant, 554 A.2d 1105, 1108 (Conn. 1989) (no Brady ...