Appeal from the Superior Court of the District of Columbia (F6341-99). (Hon. Judith E. Retchin, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 25, 2003
Before WAGNER, Chief Judge, and FARRELL and REID, Associate Judges.
The only issue presented on appeal in this homicide case is whether the trial court properly denied appellant John Jones' motion to suppress identification testimony.*fn1 Mr. Jones contends that "he was denied his rights under the [Fifth] Amendment to the Constitution because  the pretrial identification procedures used by the police were unduly suggestive and unreliable." Discerning no error, we affirm the judgment of the trial court.*fn2
The government presented the testimony of Metropolitan Police Department ("MPD") Detective Don Juan Monroe at the hearing on Mr. Jones' motion to suppress identification testimony.*fn3 According to that testimony, on January 1, 1999, Mr. Jones and another man went to a rooming house in the 1500 block of Eighth Street, in the Northwest quadrant of the District of Columbia where Valjean Pledger maintained a room. In addition to Ms. Pledger, Valerie Berry and Renita Ross were in the room at that time. When the two men were unable to find any money or cocaine in the room, Mr. Jones instructed his accomplice to shoot the three women. Ms. Pledger and Ms. Berry were fatally wounded. Ms. Ross stated that the accomplice "put the gun to [her] head and [she] heard a click. And [the accomplice] said you're lucky."
Detective Monroe did not speak with Ms. Ross on the day the murders occurred, January 1, 1999. However, at the suppression hearing he testified that Detective James Francis took her statement at approximately 7:00 p.m. that day. Detective Monroe reviewed the statement at trial and responded to questions by the prosecutor. Ms. Ross was asked on January 1, 1999, whether "she had ever seen the [d]efendant before." Her answer was "No. But his cousin does my hair and his name is Rickie Alexander -- Richie Alexander . . . . She stated that she knew [the defendant's] name as David,"*fn4 and as of January 1, 1999, had known him "about three days." She indicated that David had visited "the house three days in a row" with some drugs (cocaine, heroin, crack). She described David as "a black male, in the thirties, 5' 7", medium build, medium brown, short hair, no hair on his face, face looked rough." Ms. Ross responded "yes" when asked "if [she were] show[n] some pictures, could [she] pick out David?"
On January 6, 1999, Detective Monroe spoke with Ms. Ross who, at the time, was in a District of Columbia "Rehab Center." In the presence of three other law enforcement officers, he showed her six black and white pictures which included the most recent available photograph of Mr. Jones. Ms. Ross was unable to identify any of the six pictures as that of the assailant. Detective Monroe then retrieved from his vehicle a sheet of nine photographs in color, with front and side views of each person. Upon seeing this photo array, Ms. Ross immediately identified Mr. Jones' photograph. She commented: That's him, his face look[s] rough." Mr. Jones was the only person whose picture was included in both the first and second photo arrays. Detective Monroe spoke with Ms. Ross on an unspecified day after her photo identification of Mr. Jones, and she "stated that [Mr. Jones] had a rough pocked marked style face. His face looked real rough like he had a lot of holes in his face."
In support of the motion to suppress, counsel for Mr. Jones argued at the suppression hearing "that it is clearly suggestive to first give someone a photograph and then show them another set [of photographs] with only that one individual in that group." Counsel also stated that the first photo array had no "identifying characteristics showing that these were people that had prior criminal records or that were locked up," but that the second array contained a Police Department identification number, thus "associat[ing]" Mr. Jones with "some type of police record." And, counsel contended that "indications of the possibility of a mis--I.D." stemmed from Ms. Ross "being under the influence of drugs."
The trial court stated that it did not "need a response from the [g]overnment, and concluded that the photographs and the procedures used during the photo array viewed by Ms. Ross were not suggestive. The court noted difficulties with the picture of Mr. Jones in the first array -- "his eyes are partially closed . . . [and] the photograph is more washed out than all of the other photographs . . . And also Mr. Jones looks heavier in this photograph than he appears in the subsequent photograph and as he appears in [c]court today." In addition, the trial court discounted the influence of any drugs on Ms. Ross' identification:
And to the extent the witness may have been under the influence of drugs, I'm not sure how drugs affect her ability to observe. For some people it may, in fact, make her power of observation keener or she may have sobered up immediately after she realized she was no longer in a safe environment. But she appeared to have a basis for her identification given that she knew the Defendant by a name and had seen him on two earlier occasions. And she had a good opportunity to observe. So in any event, there appears to be an independent basis for the identification. So the Motion to Suppress her identification is denied.
At trial, Ms. Ross made an in-court identification of Mr. Jones. She testified that she had picked "David's" picture out of the photo array shown to her and that she had no doubt that "David" was the person who accompanied "the gunman" on the day of the shootings. As she put it: "I just knew that it was him," but she did not "remember anything about how he looked in the picture." She met Mr. Jones, whom she knew as "David" or "Bugaloo" sometime in 1998. During the last week of December 1998, she was staying with Ms. Pledger, and she saw Mr. Jones in Ms. Pledger's room on the Monday and Wednesday before the shooting. She was able to see his face clearly, and recognized him on Wednesday as the same person who was there on Monday. On Friday, January 1, 1999, Mr. Jones again returned to Ms. Pledger's residence. The day before his return, Ms. Ross had "[c]leaned up, made some black eyed peas, washed clothes, drunk some champagne . . . [and] smoked [some crack]." Sometime on the morning of January 1, she fell asleep.
Ms. Pledger woke Ms. Ross up later on January 1 to search for a phone book. Upon hearing a knock on the outside door of the rooming house, Ms. Ross went to that door, "peeped out the peephole" and saw Mr. Jones clearly. She returned to Ms. Pledger's room and informed her that it was Mr. Jones. Ms. Pledger responded, "Tell him I'm not here." Ms. Ross refused to return to the outside door saying, "I ain't telling him nothing." Ms. Berry, who also was in Ms. Pledger's room, went to the door to convey the message to Mr. Jones. Ms. Ross heard her say, "Why you doing that?" Then Ms. Ross heard Mr. Jones' voice at the door; he asked to speak with Ms. Pledger. Ms. Ross told him she was not there. Mr. Jones was able to open the door, and Ms. Pledger told him to "[g]et out." At that point another man entered the room; Ms. Ross did not know him. Mr. Jones "pulled" Ms. Berry into the room and shut the door. There was sufficient light for Ms. Ross to recognize Mr. Jones. His face "looked rough." Mr. Jones confronted Ms. Pledger and demanded drugs. The man with him pulled out a gun. Mr. Jones searched Ms. Pledger's person and the drawers in her room. Ms. Ross kneeled on the floor and put her head down. Eventually, she "heard . . . some shots . . .[,] falls and . . . another shot." "And then somebody put the gun to [her] and they pulled the trigger." The gun did not go off. After the shootings and the departure of the assailants, Ms. Ross ran to an upstairs apartment, kicked the door in, and ran to the window to get someone's attention. The occupant of the apartment soon appeared and assisted her. A call was placed to the police.
In response to the prosecutor's questions, Ms. Ross confirmed that she had a criminal record, including 1991 convictions pertaining to distribution or attempted distribution of cocaine, and a 1993 conviction for shoplifting. She began using drugs -- marijuana, crack cocaine, and PCP -- at the age of sixteen. She developed a daily habit of ...