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In re As.H.

June 10, 2004

IN RE AS.H.


Appeal from the Superior Court of the District of Columbia (J2449-98) (Hon. George Mitchell, Trial Judge)

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

Submitted March 15, 2004

Dissenting opinion by Associate Judge FARRELL at page 11.

This juvenile delinquency case is more than five years old. On January 20, 1999, following a factfinding hearing, As.H., then sixteen years of age, *fn2 was adjudicated guilty of robbery. The sole evidence implicating As.H. in the offense was the testimony of the victim, Ms. Michal Freedhoff, who identified As.H. at a photo array almost a month after the robbery and again in court more than four months after that. Ms. Freedhoff described her level of certainty on both occasions, however, as "seven or eight" on a scale of one to ten. Because Ms. Freedhoff was obviously less than positive regarding her identification, and for other reasons described below, we conclude as a matter of law that the evidence was insufficient to prove beyond a reasonable doubt that As.H. was involved in the robbery. Accordingly, we reverse.

I.

In the early morning hours of August 17, 1998, between 12:30 and 1:00 a.m., Ms. Freedhoff was robbed by three *fn3 or more young men. The assailants knocked Ms. Freedhoff to the ground, threatened her with "a long piece of wood" which, Ms. Freedhoff believed, was "suppose[d] to look like a rifle,"ordered her to "shut up, bitch," and robbed her of her purse and her personal electronic organizer. Ms. Freedhoff promptly reported the crime to the police. Officers detained a group of young men shortly after the robbery and arranged a show-up, but Ms. Freedhoff stated that the detained individuals were not the robbers. Indeed, she was "completely" certain that the individuals at the show-up were not the guilty parties.

Ms. Freedhoff testified that there were street lights in the area where the robbery occurred. She further stated that she had been outside in the street for some time, so that her eyes had become accustomed to the dark. Nevertheless, Ms. Freedhoff could not provide an informative description of her assailants. According to Detective Ross, she recalled nothing distinctive about their clothing; "young black males and baggy clothes" was his recollection of her report. At the factfinding hearing, which took place more than five months after the robbery, Ms. Freedhoff recalled that the robbers were teenagers, "two dark-skinned and one light," each of a different height, and that "one had shorts and sneakers and another may have had a hat." Ms. Freedhoff was also uncertain as to the role which the individual she tentatively identified as As.H. allegedly played in the robbery.

On September 11, 1998, Detective Ross showed Ms. Freedhoff an array of nine polaroid pictures and asked her if she recognized anyone who was involved in the offense. At a hearing on As.H.'s motion to suppress identification, Ms. Freedhoff testified as follows regarding this array:

Q: Now, Ms. Freedhoff, on that day did you identify any of the people in the photos as having been involved in the incident of August 16th?

A: Yes, I did.

Q: Which photos did you identify?

A: These two marked nine and [ten] I was very certain about and the two marked three and four I was less certain about.

Q: During the identification procedure, did you talk to the detective about ...


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