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Ventura v. United States

June 21, 2007


Appeal from the Superior Court of the District of Columbia (No. F4248-03) (Hon. Thomas J. Motley, Trial Judge).

The opinion of the court was delivered by: Kern, Senior Judge

Argued February 22, 2007

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and KERN, Senior Judge.

This is an appeal from a judgment of conviction the trial court entered after a jury found appellant guilty of assault with intent to commit robbery while armed in violation of D.C. Code §§ 22-401, -4502 (2001) and carrying a dangerous weapon, a knife, outside the home or place of business in violation of D.C. Code § 22-4504 (a) (2001). Appellant seeks reversal of his convictions on the grounds (1) that the trial court erroneously denied his pretrial request for a DNA test of blood stains on the clothing that he was wearing at the time of the alleged robbery and that was later recovered from his apartment as he was being transported by ambulance for treatment of a stab wound; and (2) that the trial court erred by failing to intervene sua sponte when (a) the prosecutor at trial improperly elicited prior consistent statements of the complainant through the testimony of various witnesses, and (b) the prosecutor made inflammatory comments and emphasized to the jury the fear the complainant had suffered as a consequence of appellant's alleged actions.

We are not persuaded upon the particular facts and circumstances of record that the trial court's actions constituted reversible error. We first set forth the general background of the case and then, for each claim of error, discuss the salient facts and our reasoning as to why we reach our conclusion that the judgment of conviction must be affirmed.

I. Background

The record contains the testimony of four prosecution witnesses: (1) the complainant, Mauro Contreras;*fn1 (2) Muhammad Jallow, the security guard who was on duty at the time of the robbery in the apartment building where both the complainant and appellant resided; (3) Officer Joseph Belfiore, the first responding officer from the Metropolitan Police Department ("MPD"); and (4) Officer Eldred Boria, a Spanish-speaking MPD officer, who responded to the scene initially to investigate the robbery and then again, less than an hour later, to investigate a report from appellant's cousin that appellant had been stabbed.

The complainant, Mr. Contreras, testified that on July 17, 2003, shortly after 11:00 p.m., he began walking home from the Columbia Heights Metro Station to the apartment building in which he lived, in the 1400 block of Ogden Street, Northwest, after finishing his shift as a cook at a restaurant in Chinatown. After passing appellant and another man sitting together in a park, the complainant became aware that these men had begun to follow him. The complainant observed that appellant, who is Hispanic, was wearing dark pants and a white t-shirt and carrying a jacket under his arm; appellant's companion, an African American, was wearing black pants and a blue jacket. As the complainant quickened his walk homeward, the men kept pace, and then the complainant began to run as appellant called out in Spanish for him to "stop." The complainant reached the door to his apartment building moments before appellant arrived, while appellant's companion stayed back a little distance as if to serve as a lookout.

The complainant unsuccessfully tried to unlock the building's door with several hasty swipes of his keycard at the door's external card reader. Before the complainant could unlock the door, appellant arrived and stepped between the complainant and the card reader, blocking the complainant's access to the card reader and thus to the building. Appellant ordered the complainant to "give me your money," and the complainant explained that he did not have any money. Appellant then demanded the bracelet and two gold chains that the complainant was wearing, for which the complainant had paid over $1,000, and the complainant noticed that appellant was brandishing a knife in his right hand. The complainant refused to give appellant anything, and appellant struck the complainant twice in the face with his left hand, causing an injury to the complainant's eye. Nevertheless, the complainant again refused to give appellant anything, and appellant tried to stab the complainant with the knife he was wielding. The complainant deflected the attempt, using two hands to push appellant's attacking arm across appellant's body and turning the hand that held the knife towards the left side of appellant's body.

The complainant testified that he did not try to stab appellant, did not notice whether appellant got cut during their struggle, and did not observe any blood on appellant.*fn2 Appellant, however, drew back from the complainant after their struggle, and in this moment of separation, the complainant again swiped his keycard at the card reader and this time gained access to the building. The complainant ran into the building yelling "Security" to summon the on-site security guard, who stepped out of a nearby laundry room. The complainant told the security guard what had happened, pointing out appellant as he fled away from the building. The complainant and security guard then went back into the building, encountered appellant's mother, and told her what had just happened. The police were called, and the complainant gave a statement to the responding officers. About an hour and fifteen minutes later, police officers returned to the complainant's apartment and asked him to look through the blinds on his third-floor apartment window to view a suspect in police custody outside. The complainant positively identified appellant as his assailant. Subsequently at trial, the complainant again identified appellant as his assailant.

The security guard, Muhammad Jallow, testified that he was on duty inside the apartment building about 11:20 p.m. on July 17, 2003, when he heard someone screaming, "Security, security, help me, help me." Mr. Jallow rushed toward the front door and saw the complainant entering the building and pointing at a man about six feet away from him. Mr. Jallow, who had worked in the building since 1999, recognized both men as residents of the building. Mr. Jallow testified that he had been introduced to appellant approximately two months before the assault "as the son of Maria, the resident of [a first floor apartment]," and that he usually saw appellant "up to three or four times a day" as appellant entered or exited the apartment building. Mr. Jallow observed that appellant was wearing a camouflage, military-style jacket.

Mr. Jallow testified that he watched appellant "jog" away from the front of the building as the complainant explained that appellant had just attempted to rob him with a knife.*fn3 Mr. Jallow observed that the side of the complainant's face under the eye was "red and kind of swollen," but saw no other injuries to the complainant. Mr. Jallow called inside to Maria, appellant's mother, whom he had just seen in the laundry room. Appellant's mother came to the lobby and the men told her what had just transpired. Mr. Jallow then called the police. When MPD officers arrived, Mr. Jallow accompanied them to the apartment that he knew to be the residence of appellant and told appellant's cousin, Roxana Flores, that the police were there looking for "Maria's son." Appellant was not home, so the police officers obtained appellant's name and date of birth from Ms. Flores.

Mr. Jallow further testified that approximately an hour later, MPD officers asked him to accompany them back to the apartment of appellant's mother "[b]ecause the police wanted me to have a look at somebody." Mr. Jallow observed appellant lying on his stomach on a bed with paramedics attending to his lower back, but did not see a wound or any blood because the paramedics were holding gauze over the area. Mr. Jallow identified appellant as the man he had seen running away from the building earlier that evening. Mr. Jallow also made an in-court identification of appellant.

Officer Joseph Belfiore, who has only "[a] very minimal understanding" of Spanish, and his partner were the first officers on the scene in response to a radio dispatch for a robbery. Officer Belfiore testified that he recognized a potential language barrier and immediately called for a Spanish-speaking officer to respond; in the meantime, he determined the details of the robbery attempt and got a description of the suspect by communicating with the complainant through a combination of English, Spanish, and pantomime gestures.*fn4 Officer Belfiore observed that the complainant was "agitated" and "perspiring" and that he had "[b]right redness around the higher cheekbone area and around the eye and the beginning stages of bruising." Officer Belfiore did not see any additional injuries that the complainant may have sustained. Officer Belfiore looked for but did not find any blood at the scene of the incident.

Metropolitan Police Officer Eldred Boria, who is fluent in Spanish, arrived on the scene shortly after Officer Belfiore and obtained a more detailed statement from the complainant in Spanish. Officer Boria testified that the complainant's "face was red, and he said his shoulder was hurting." The security guard, Mr. Jallow, took Officer Boria to the apartment in which appellant lived with his mother, and the officer spoke with appellant's cousin, Ms. Flores. However, appellant was not home at the time.

Officer Boria further testified that approximately one hour later, he returned to the apartment building in which the complainant and appellant lived in response to a radio dispatch for a stabbing victim in the same apartment unit that he had visited earlier when he had been looking for appellant. Once inside the unit, Officer Boria observed appellant lying on a bed with a stab wound in his lower left back, and the officer saw that there was wet blood around the wound, on appellant's clothes, and on the sheets. Mr. Jallow had accompanied Officer Boria into this room and identified appellant as the man he previously had seen in front of the building after the complainant cried out for help.

Appellant told Officer Boria that approximately one hour earlier, a Hispanic male had tried to rob him in front of the apartment building and had stabbed him, but that he did not see the man's face. Appellant told the officer that he had been accompanied by an African American male at the time, but appellant did not know that man's name or address. As paramedics and officers were escorting appellant out of the building, Officer Boria asked the complainant to look out his window for a show-up identification, and the complainant made a positive identification of appellant as his assailant. At this time, appellant was placed under arrest.

Officer Boria testified that before appellant was transported by ambulance to the hospital, the officer returned to appellant's apartment unit and asked Ms. Flores to retrieve a change of clothes for appellant; the t-shirt appellant was wearing, for example, "was all torn up." As appellant's cousin looked around for a pair of pants, she picked up a pair with blood stains on them and identified them as the pair appellant had taken off when he came home injured. She offered these pants to Officer Boria, along with a green, camouflage military-style jacket with a bloodstain on its back; Officer Boria did not request these articles of clothing, but he did accept them.*fn5 Police officers also searched the area in front of the building and other areas around the perimeter of the building, but did not locate the knife or any sign of blood.

In the defense case, only one witness was called to testify: appellant's cousin, Roxana Flores, who shared the Ogden Street apartment with appellant and his mother.*fn6 Ms. Flores testified that after appellant returned home on the evening of the incident, she observed that he was bleeding from a wound on his back and had "lots of blood" on his clothing. She recalled appellant telling her that he had been attacked from behind in a robbery attempt by an unknown assailant in a park near their apartment building. Ms. Flores testified that she called 911 and asked for the police and an ambulance because "somebody had been held up" and "he was badly wounded." At the conclusion of Ms. Flores' testimony, the trial court permitted appellant to enter the well of the court and lift his shirt to show the jury the scar from the injury.

II. Appellant's Request for Pretrial DNA Testing

On appeal, appellant first contends that the trial court erred when it denied his pretrial request for a test of the DNA contained in the biological material on his bloody clothing. The issue first was raised sua sponte by the trial court pursuant to its obligation under the Innocence Protection Act ("IPA"), D.C. Code ยง 22-4131 et seq. (Supp. 2002), to provide certain notifications to a defendant under ...

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