Appeal from the Superior Court of the District of Columbia. (F-6478-98). (Hon. Noel A. Kramer, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before SCHWELB, WAGNER,*fn1 and REID, Associate Judges.
Concurring opinion by Associate Judge SCHWELB at page 18.
This case raises the question as to whether the trial court erred when it allowed the jury, during its deliberations and over defense counsel's objection, to view appellant Yogi Washington up close, and at multiple angles, where the defendant had not been similarly shown to the jury during the trial. We hold that the trial court did not err in allowing the jury, at its request, to view Mr. Washington in this manner, and that their close-up view of Mr. Washington did not constitute "new evidence" requiring the trial court to reopen the case.
At Mr. Washington's third jury trial,*fn2 the government presented evidence that at approximately 12:15 a.m., on September 9, 1998, a man wearing jeans, a "light colored shirt," a "blue hat placed over his head," and "holding [a blue sweatshirt] to cover a portion of his mouth," entered the Red Roof Inn on the 500 block of H Street, in the Northwest quadrant of the District of Columbia. The man approached the front desk attendant, Joseph Frazier, pointed a revolver "directly at [his] face," and told Mr. Frazier to "give me your money." Mr. Frazier immediately grabbed the barrel of the man's gun, and the two men wrestled for control of the weapon. During this struggle, the armed man "stumbled back[wards]" and momentarily lost control of the weapon; Mr. Frazier, meanwhile, lost his grip on the barrel of the gun. He watched as the man regained control of the gun, and then Mr. Frazier quickly ducked down behind the counter.
Officer Marchella Horton of the Metropolitan Police Department ("M.P.D."), the hotel's night security guard, was standing in the lobby of the Red Roof Inn at the time of the incident. After the brief struggle between Mr. Frazier and the armed man, Officer Horton found herself "face to face" with the assailant, her "gun . . . pointed at [the assailant] and his gun . . . pointed at [her]." Officer Horton told the man, "don't even try it." Suddenly, the armed man bolted; he "turned around and ran" out of the hotel lobby. He "made a left" on H Street, running parallel to the hotel, and "made a left around to the rear of the [hotel]."*fn3 Officer Horton, who was only "five or ten feet" away from the armed man, "chased him" out of the hotel and down H Street. Fearing that "he would shoot [her] if [she] ran around the corner" of the hotel, Officer Horton "stopped and waited [for] a few seconds before [she] looked around the corner." When she did look around the corner, she saw the armed man "stooping down behind [a] dumpster" in the alleyway. The dumpster was approximately forty to fifty feet from where the officer was standing.
Officer Horton "ran back inside [the hotel] and told Mr. Frazier to call [the police]." After only "a few seconds," she "ran back out and stopped . . . at the corner again and looked around to see if [the armed man] was still there." She saw that the man was still crouching beside the dumpster, and observed him as he removed a "gray T-shirt" and "threw it on the ground." Officer Horton "waited on the corner and watched him until [her] backup arrived." Officer Michael Glean of the M.P.D. arrived on the scene in a marked police cruiser approximately three or four minutes later. Together, Officers Horton and Glean descended upon the dumpster.*fn4 They found Mr. Washington, covered in sweat and shirtless, "squatting down" behind the dumpster.*fn5
Sergeant Robert Glover of the Metropolitan Police Department arrived on the scene as Officers Horton and Glean were placing Mr. Washington under arrest. Sergeant Glover conducted a pat down search of Mr. Washington, finding "12 live rounds of ammunition" in Mr. Washington's "left front pants pocket." The officers also searched the area surrounding the dumpster where Mr. Washington was arrested, as well as the section of the alleyway which the assailant had used to escape. The officers found the assailant's gray tee shirt, blue hat, sweatshirt, and revolver, all of which had presumably been thrown to the ground as the assailant fled the hotel. The ammunition found in the revolver was the same caliber as the ammunition recovered in Mr. Washington's pocket.
On November 25, 1998, Mr. Washington was charged in an eight-count indictment with: (1) two counts of second-degree burglary while armed (pistol), D.C. Code §§ 22-1801 (b), -3202 (1996);*fn6 (2) assault with intent to commit robbery while armed, D.C. Code §§ 22-503, -3202, -2901 (1996);*fn7 (3) assault with a dangerous weapon, D.C. Code § 22-502 (1996);*fn8 (4) possession of a firearm during a crime of violence ("PFCV"), D.C. Code § 22-3204 (b) (1996);*fn9 (5) carrying a pistol without a license ("CPWL"), D.C. Code § 22-3204 (a)(2) (1996);*fn10 (6) possession of an unregistered firearm, D.C. Code § 6-2311 (a) (1981);*fn11 and (7) unlawful possession of ammunition, D.C. Code § 6-2361 (3) (1981).*fn12 At his jury trial in January of 2000, the government presented physical evidence of the incident, including the firearm and clothing recovered in the alleyway, and pictures of the assailant captured by the hotel's security camera. The government also presented the testimony of Joseph Frazier, Officers Horton, Glean, and Carroll, and Sergeant Glover. Mr. Washington's defense at trial was misidentification; he presented the testimony of Michael Ehrmann, a defense investigator, and also recalled Sergeant Glover and Officer Horton.*fn13
At trial, Mr. Frazier identified Mr. Washington as the armed man who entered the Red Roof Inn that evening. Mr. Frazier testified that although the assailant held a sweatshirt "around his mouth," he "could still see the upper portion of [the man's] face." During the "approximately twelve seconds" that the incident lasted, Mr. Frazier stated that he was "mostly focused on [the man's] face," and that he was "very confident that [Mr. Washington] [was] the man that pulled the gun [on him]." On cross-examination, Mr. Frazier admitted, however, that the arresting police officers did not ask him to identify Mr. Washington as the assailant at the time Mr. Washington was arrested, or any time prior to trial.
Officer Horton also identified Mr. Washington as the assailant. Officer Horton testified that when she was "face to face" with Mr. Washington in the hotel lobby, with her gun drawn, he was holding his revolver with both hands, and that he did not "have his hands up" covering his face anymore. She was confident that Mr. Washington, the man found hiding behind the dumpster, was the same man whom she had only minutes earlier chased from the hotel, noting that he was wearing "the same gray shirt [as the man] that ran out the door." On cross-examination, however, Officer Horton admitted that she lost sight of the assailant when "he turned the corner" of the alleyway, and that she never actually saw Mr. Washington run the length of the alleyway to the dumpster; rather, when she eventually turned the corner, she saw Mr. Washington taking off his shirt behind the dumpster. She also admitted that she never saw the assailant throw the gun, hat, or sweatshirt to the ground; that she could not remember the assailant's height, weight, or facial features; and that she was "focusing" on the man's revolver, not his face, during the incident.
The jury was excused to begin its deliberations on January 13, 2000. The following day, the trial court advised the parties that it had received a note from the jury requesting that it be allowed "to view the defendant at close range, like two to three feet and from each side." Defense counsel objected to the proposal, claiming that "the request constitute[d] new evidence," and that it amounted to "an in-court demonstration of Mr. Washington which was not introduced at . . . trial." Defense counsel argued that while Mr. Washington may have been visible to the jury by his mere presence in the courtroom, he was not "an exhibit" which the jury was free to ...