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Diggs v. United States

August 31, 2006

DONNELL DIGGS AND FRANCISCO KIPETTE, APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (FEL-6386-02 and FEL-6044-02) (Hon. Maurice A. Ross, Trial Judge).

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

Argued May 3, 2006

Before WASHINGTON, Chief Judge, REID, Associate Judge, and NEBEKER, Senior Judge.

After a jury trial, co-defendants Donnell Diggs and Francisco Kipette were convicted of the lesser-included offense of car jacking after being indicted on the charge of armed car jacking, in violation of D.C. Code §§ 22-2803, -4504 (2001); unauthorized use of a vehicle, in violation of § 22-3215; and first-degree theft, in violation of § 22-3211.*fn1 On appeal they contend: (1) the trial court improperly denied their claim that they were deprived of their Sixth Amendment right to a jury drawn from a fair-cross-section of the community;*fn2 and (2) the trial court erred in denying their motions to suppress identification. Discerning no trial court error, we affirm the judgments of the trial court.

FACTUAL SUMMARY

The government presented testimony showing that on the night of August 8, 2002, around 11:45 p.m., complaining witness Shamar Knighton and his friend, Kizzie McKay, returned from a restaurant in Greenbelt, Maryland, where they had dined, and were seated in Mr. Knighton's vehicle, a Chevy Tahoe truck, outside Ms. McKay's residence in the 1400 block of W Street, in the Northwest quadrant of the District of Columbia. The street lights were on; both the driver's side (where Mr. Knighton was seated) and the passenger side windows were down, and the buildings in the neighborhood were illuminated. Two men approached, one on each side of the vehicle. A man "stuck an object through the window toward Ms. McKay," and Mr. Knighton "felt an object up against [his] face," which "appeared to be a gun." The man on Mr. Knighton's side of the truck ordered him to "empty [his] pockets" and to exit the vehicle before he was shot. Mr. Knighton followed the man's instructions "to go across the street." The man then got into the vehicle. Ms. McKay also was told to get out of the vehicle and "to leave her purse." When Ms. McKay complied, the other man entered the truck on the passenger side.

Mr. Knighton described the assailant on Ms. McKay's side of the vehicle as "about [his] build and stature[,] about [his] height," "a little darker [than himself, but] a dark skinned guy." He had on a black shirt, and something "black" covering his head and his mouth. The man who was on Mr. Knighton's side of the truck was "about 5'9", 5'10", about the same stature as Mr. Knighton, "lighter" than Mr. Knighton who had been working in the sun -- "light skinned, brown skinned guy." Mr. Knighton estimated that "from the time that [he] first saw the man approaching on Ms. McKay's side to the time that [the car jackers] "pulled off" in Mr. Knighton's truck was approximately 45 seconds to one minute.

Mr. Knighton used his cell phone to call 911, and the police responded within "[m]aybe two minutes." After he gave the police a description of the suspects and of his vehicle, the officer asked Mr. Knighton to get into the police car, and then drove down W Street to Fourteenth and U. Soon the officer said that Mr. Knighton's car had been spotted in Maryland. Mr. Knighton was transported to Maryland for a show-up identification. He was shown two men, one at a time. Mr. Knighton identified the men as the perpetrators, saying "yes, that's him" each time. He was "pretty certain" of his identification, which occurred "roughly 30 minutes" after the car jacking.

Detective Robert Thompson, a thirty-one year veteran of the Metropolitan Police Department ("MPD") testified that on August 8, 2002, he "had monitored a radio run for a car jacking that had just occurred in the 1400 block of W Street, Northwest." He soon learned that the Chevy Tahoe truck had been stopped in Maryland, and proceeded there. Soon after Mr. Knighton arrived on the scene, Detective Thompson told him that he was "going to look at somebody and see if [he] recognizes them." When the suspects were brought to Mr. Knighton for identification, he was "standing on the street[,] approximately . . . maybe twenty feet away. The area was "pretty well" illuminated by street lights." Mr. Kipette was brought out first, and Mr. Knighton was about twenty feet away from Mr. Kipette when he identified him as the person who took his Chevy Tahoe truck. He was "pretty positive" of his identification. When Mr. Diggs was brought out, Mr. Knighton also identified him.

Officer Kevin Griffin, a twenty-seven year veteran of the MPD, testified at the suppression hearing. He was on duty on August 8, 2002, when he was directed to the 1400 block of W Street, N.W. for the purpose of interviewing Mr. Knighton. Mr. Knighton described his assailants as follows: "One suspect was . . . approximately 18-19, black male, dark complected, about five feet eight to five nine in height, 140 to 150 pounds. He was armed with a chrome colored . . . handgun." The second suspect was "a black male, approximately 18-19, wearing a black shirt, white tank T-shirt, he was also armed with a small type handgun or an unknown type handgun." Officer Griffin drove Mr. Knighton to Maryland where his Chevy Tahoe was spotted. He reached Maryland in about fifteen minutes, and the show-up occurred about five minutes later. "One suspect was brought to where [Officer Griffin and Mr. Knighton] were standing, . . . outside [Officer Griffin's] police car." Mr. Knighton "looked at [him]" and "positively identified him," saying, "F--k yeah, that is him." When the second suspect was brought out, Mr. Knighton said, "Yeah, he made me empty my pockets." Officer Griffin did not remember whether Mr. Diggs and Mr. Kipette were handcuffed when they were identified.

ANALYSIS

The Sixth Amendment Issue

Appellants contend that "the Superior Court [of the District of Columbia's] systematic method for administering the jury system causes the under-representation of African American panelists for trials, like [Mr.] Kipette's, in which the litigants select their juries on Mondays," and hence, "that method violated the Sixth Amendment right to a jury that is chosen from a fair cross section of the community." They claim that "the trial court assumed that the under-representation of African Americans in the Monday jury panel was systematic . . . [since] the system is 'skewed towards the white professionals' on Mondays because 'the people who defer [their jury service] have a higher education and economic[] level so they exercise their right to defer' and 'because most of the people who defer are ...


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