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Lewis v. United States

August 23, 2007

ROSCOE K. LEWIS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (F-6810-02) (Hon. Lynn C. Leibovitz, Trial Judge).

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

Argued June 5, 2007

Before FARRELL and THOMPSON, Associate Judges, and TERRY, Senior Judge.

Appellant, Roscoe Lewis, was convicted of assault with a dangerous weapon and malicious destruction of property (a coat). On appeal he challenges (1) the trial court's failure to declare a mistrial sua sponte after a police officer mentioned in his testimony that appellant was homeless, (2) the trial court's failure to take corrective action sua sponte when the complainant, on cross-examination, mentioned an out-of-court identification made by a witness who did not testify, and (3) the sufficiency of the evidence to sustain his convictions. We conclude that appellant has not shown any error, and certainly not plain error, with regard to his first two contentions and that the evidence was sufficient to enable reasonable jurors to find guilt beyond a reasonable doubt. Accordingly, we affirm.

I.

Merry Miller testified that on October 21, 2002, at approximately 7:00 p.m., while it was "still daylight," she was walking eastward on F Street, N.W., across the street from the Hotel Monaco. As she approached Seventh Street, she noticed a man - later identified as appellant - wearing a light tan jacket, "casual" pants, and a cap, and carrying a white plastic bag, walking toward her. When they were about twenty feet apart, appellant began yelling "Bitch" at her repeatedly. Ms. Miller briefly averted her eyes, but resumed eye contact with appellant when he said, "Bitch, I'm talking to you." As the distance between them lessened, appellant blocked Ms. Miller's path, and she looked him in the eye and said, "Sir, please let me pass."

Appellant then displayed a knife in his left hand, with a silver blade five to six inches long, and said, "Come on, be nice now." When Ms. Miller raised her right forearm in a protective gesture, appellant lunged at her with the knife, slashing a four-inch tear in Ms. Miller's "very thick" coat but failing to injure her. Ms. Miller screamed for help and ran across the street to the Hotel Monaco, where she asked a valet and a doorman to call the police. As she looked back, she saw that appellant was still on the sidewalk where the assault had occurred.

Andrei Kourepine, the doorman at the Hotel Monaco, testified that when he heard a scream for help, he turned to look across the street and saw Ms. Miller running toward him. At the same time, he saw a man running west on F Street in the direction of Ninth Street. Mr. Kourepine recognized the man as the person who moments earlier had asked him for a cigarette while Mr. Kourepine was taking a break, a request which Mr. Kourepine had refused without looking at the man's face. Mr. Kourepine recalled that the man had been wearing a gray jacket and carrying a black plastic bag.*fn1

Police officers arrived quickly, and Ms. Miller gave them a description of her assailant. According to Ms. Miller's testimony on cross-examination, a hotel valet named Mario*fn2 also told the officers, "It's Roscoe." Moments later the officers stopped appellant at the corner of Ninth and F Streets, less than two blocks away. When one of the officers transported Ms. Miller by car to that location for a show-up identification, she recognized appellant by his face and positively identified him as her assailant.*fn3 As she did so, she noticed that appellant was no longer wearing a jacket, but she saw the jacket on the ground next to him along with the plastic bag he had been carrying. Mr. Kourepine also participated in a show-up and positively identified appellant as the man who had asked him for a cigarette and then had run away shortly after Ms. Miller screamed. Mr. Kourepine's identification was based mainly on appellant's jacket and bag, since he did not get a good look at the man's face.

When the prosecutor asked Officer David Adams, one of the officers on the scene, whether he had searched for any weapons, the officer replied, "Yes, we did." The prosecutor then said to Officer Adams, "Tell us about that," and the officer answered, "Well, of course, we searched him, and we searched the . . . surrounding area, with Mr. Lewis being homeless and frequents in that area." Defense counsel immediately objected to Officer Adams' answer, and the court sustained the objection - not on the ground asserted by defense counsel ("no basis"), but because the answer was "not responsive" to the prosecutor's question. The court also struck the answer from the record. The court gave no immediate jury instruction, but later told the jury in its final charge, "If, after a witness answered a lawyer's question, I ruled that the answer should be stricken, you should disregard both the question and the answer in your deliberations."*fn4

After the direct examination of Officer Adams had been completed, a juror informed the judge during a recess that she now thought she recognized appellant as one of several homeless individuals whom she had seen harassing women near a Metro station at Seventh and F Streets, N.W., a short distance from the scene of the assault. At a bench conference with the court and counsel, the juror said:

I come out of that Metro station every day and go into it every evening. And I have experienced homeless people, particularly, I think that man, yelling at women near that location. And when the police officer mentioned - I know it's not supposed to be on the record - that he was homeless, I believe that I have seen him before.

Upon hearing this,*fn5 the court excused this juror from the jury and replaced her with an alternate. Neither counsel objected.

At the close of the government's case, the court denied defense counsel's motion for judgment of acquittal. The defense then rested without calling any witnesses; counsel's renewed motion for judgment of acquittal was again denied. ...


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