Appeal from the Superior Court of the District of Columbia No. F-6732-96 Hon. Wendell P. Gardner, Jr., Trial Judge.
The opinion of the court was delivered by: Terry, Senior Judge
Before GLICKMAN, Associate Judge, and STEADMAN and TERRY, Senior Judges.*fn1
Appellant, Julio Rodriguez, was indicted for armed robbery and carrying a dangerous weapon. After a jury trial, he was acquitted of those charges, but was found guilty of the lesser included offense of robbery. He appeals from his robbery conviction, contending that the trial court erred by allowing the government to elicit prejudicial testimony from police officers about their prior contacts with him, by refusing to impose sanctions on the government for failing to preserve an item of evidence, and by instructing the jury on the lesser included offense of robbery even though the evidence, in his view, did not support such an instruction. We affirm.
A. The Robbery and Its Aftermath
William Woodson testified that Rodriguez and another man, Angel Lopez, robbed him on the morning of June 28, 1996. On that day Woodson had gone to an apartment on Columbia Road, N.W., in order to buy some crack cocaine from Lopez. While Woodson waited for Lopez to get the cocaine, Rodriguez entered the room and, apparently still angry over a prior argument, punched Woodson in the chest and threatened him with what Woodson described as a "scratch awl." Rodriguez and Lopez then took from him a pouch or "fanny pack," a broken watch, a belt, a pair of sandals, a paycheck, and $60 in cash.
After the robbers left, Mr. Woodson picked up his glasses and some personal papers which had fallen on the floor, and then he too left the building. When Woodson described the robbery to some people on the street, one of them told him which way the robbers had fled. Woodson headed in that direction, and a few minutes later he found Rodriguez and Lopez at the corner of 15th and Irving Streets, N.W. He asked for his money back, but they refused to return it. Rodriguez taunted him by waving a piece of paper in his face which he later concluded was possibly his stolen paycheck.
Quickly recognizing that the two men would not return his money, Mr. Woodson went back to the apartment where the robbery had occurred, looking for his keys. This time his quest was successful: a woman whom he had seen there earlier gave him the keys but said she knew nothing about the robbery. Woodson left the apartment again, intending to walk home.
Luckily, Mr. Woodson saw a police car less than a block away. He flagged it down and told the officers inside - Emiliana Rodriguez, Harry Weeks, and Emilio Martinez - the details of the robbery. The officers testified that Woodson was disheveled and barefoot (the robbers had taken his sandals) and appeared to be nervous and "panicking," but not under the influence of alcohol or drugs. He described the robbers to the officers, stating that one of them appeared to be Cuban and the other Puerto Rican. Upon hearing these descriptions, the officers recalled seeing Rodriguez, Lopez, and another Hispanic man named Tartabull, wave to their patrol car as it drove past them earlier that morning. These men were known to some members of the police force as "the Cubans." Suspecting them, the officers broadcast a lookout for three Hispanic males.
Shortly thereafter, another officer, Edward Soto, detained Lopez and Tartabull in a nearby alley. Mr. Woodson was taken there and identified Lopez as one of the robbers. Lopez had in his possession Woodson's sandals and pouch, which contained the broken watch, and was carrying an awl in his pocket.*fn2 The pouch's fastening device was broken when the police recovered it from Lopez. While on the scene, the police photographed the awl, the sandals, the watch, and the pouch. They kept the awl but returned the other items to Mr. Woodson, who testified that he later threw away the pouch because the clasp had been broken during the robbery. On the basis of Mr. Woodson's identification, Lopez was placed under arrest, but Tartabull was released after Mr. Woodson told the officers that he was not the second robber. Accompanied by Mr. Woodson, the police continued looking for the second robber that morning, but they were unsuccessful.
About a month after the robbery, Woodson went to the police station to look at an array of photographs, which included a picture of Rodriguez because the police suspected that he might have been involved. Woodson identified Rodriguez from the array as one of the robbers, and the police arrested him three days later.
Lopez and Rodriguez were later jointly indicted as co-defendants. Shortly before trial, however, Lopez entered a plea of guilty to robbery, and Rodriguez was tried alone.
B. Testimony about Prior Contacts
During a pre-trial hearing, some police officers testified that Rodriguez was well known to officers patrolling his neighborhood and that they had had contact with him on other occasions prior to the day of the robbery. Concerned that evidence of these prior contacts with the police might suggest to the jury that Rodriguez had a prior criminal record or at least a criminal disposition, defense counsel requested a ruling in limine to prohibit the government from eliciting such testimony at trial. The court denied the motion, stating:
Police officers walk beats every day. . . . [T]hey know people from the police Boys' Club, they know shop owners. Police officers see and know a lot of people; that doesn't mean that they arrested the person. So I don't think that the prejudicial [effect] outweighs the probative [value].
During her opening statement, the prosecutor said that the arresting officers had had "prior contacts" with Rodriguez and that they knew him "from the area" and "from this particular neighborhood." After summarizing the facts of the robbery and Mr. Woodson's report to the police, the prosecutor continued: "So what they [the officers] did, ladies and gentlemen, is, based on their knowledge of Mr. Rodriguez, they located a photograph of Mr. Rodriguez and inserted it into a photo array of nine photographs." Defense counsel ...