Appeals from the Superior Court of the District of Columbia (F-3824-97) (F-3823-97) (Hon. Michael L. Rankin, Trial Judge)
Before Farrell, Ruiz and Reid, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appellants Lyons and Hilton appeal their convictions of armed robbery and related weapons offenses. *fn1 Lyons challenges the trial court's denial of his motion to suppress his identification during a show-up after the robbery. Appellant Hilton appeals the trial court's denial of his motion for judgment of acquittal and in the alternative for a new trial, arguing that he was intimidated by Lyons, his co-defendant at trial, from testifying on his own behalf. We conclude that the trial court did not err in denying Lyons's motion to suppress and affirm his conviction, but remand for a hearing on Hilton's motion for a new trial.
Jacqueline Shives testified that on May 5, 1997, at about 7:15 p.m., she was robbed at gunpoint after withdrawing money from an automated teller machine located at 12th and Perry Streets, N.E. As she was walking to her car, she noticed a man, later identified as appellant Lyons, walking towards her. Lyons pulled out a handgun and the two of them began to circle her car. At some point, Lyons grabbed her and pointed the weapon at her chest, so she threw a twenty dollar bill on the ground. Lyons picked up the bill and ran into the passenger side of a waiting black Isuzu Rodeo truck. As he jumped in, the truck sped away east on Perry Street.
Shives drove to her home on Monroe Street. After a family member called the police, Officers Ennis and Harkins interviewed Shives at her home. Shives described her assailant as a black man in his twenties, approximately 5'9" tall, 160 lbs., with brown eyes, short black hair, a dark and rough complexion, wearing dark pants and a royal blue sweatshirt. Shives also described the getaway vehicle as a shiny, black, two-door, Isuzu Rodeo truck with chrome. Officer Ennis left for the crime scene and, while driving there, observed a black Isuzu Rodeo with a passenger who appeared to fit the description of the robber. Officer Ennis followed the vehicle which, after a high-speed chase, crashed into a utility pole on 18th and Monroe Streets. The passenger, later identified as Lyons, exited the vehicle and ran into an alley. Officer Ennis followed him until he realized that another officer, Officer Payne had stopped Lyons in the alley. *fn2 Officer Ennis ordered the driver, appellant Hilton, out of the vehicle and turned him over to another officer. Ms. Shives was taken to the scene of the crash and arrest, which took place about an hour and fifteen minutes after the robbery, by Detective Harkins. She positively identified Lyons as the one who robbed her and the Isuzu Rodeo truck as the vehicle in which he had entered. Shives testified that the lighting conditions were good, as Lyons was under a streetlight and the police car's headlights were directly on him, and that when she saw him she was "one hundred percent . . . certain it was the same person [who robbed her]." When the truck was searched, the police found a red plastic cup with fifty-five dollars, including a twenty-dollar bill, a loaded black semi-automatic pistol, which Ms. Shives testified at trial looked like the robber's gun, and a shotgun.
Lyons argued he was not the robber and presented an alibi defense. His brother, Dale Lyons, testified that on the day of the robbery, Lyons had been at their parents' home on Delafield Place, N.E., which is approximately one to two miles from the scene of the robbery, between 7:00 and 7:30 p.m., and that he had spoken to his brother in front of their home at 7:45 p.m. Renelle Hinton testified that on the day of the robbery, she saw Lyons enter his parents' home at approximately 7:30 p.m., and that she saw him leave the house at approximately 7:45 p.m. and speak with his brother, Dale, and then to her, before walking down the street.
The government prosecuted Hilton on the theory of aiding and abetting as the get-away driver, D.C. Code § 22-105 (1981) (recodified at D.C. Code § 22-1805 (2001)), *fn3 based on evidence that Hilton was driving the black Isuzu Rodeo truck with Lyons and was involved in a high-speed chase with police about an hour and fifteen minutes after the robbery, and that a gun and a twenty dollar bill were recovered from Hilton's truck.
Hilton did not offer any witnesses, but presented three exhibits that he claimed called into question that he was the driver of the getaway car: a portion of the PD 251 report that described the getaway vehicle; Shives's grand jury testimony describing the vehicle as having chrome and two doors, whereas the Isuzu Rodeo he was driving had four doors and did ...