Appeal from the Superior Court of the District of Columbia (DEL1687-08) (Hon. Zoe Bush, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before FERREN, TERRY, and SCHWELB, Senior Judges.
Opinion for the court by SCHWELB, Senior Judge.
Concurring opinion by SCHWELB, Senior Judge, at page 23.
On September 16, 2008, following an evidentiary hearing in the Juvenile Branch of the Family Court, T.C., then aged 17, was found involved in two counts of armed robbery,*fn1 one count of carrying a pistol without a license (CPWOL),*fn2 and one count of possession of a firearm during the commission of crime of violence (PFCV).*fn3 T.C. was found not involved with respect to one count of possession of a prohibited weapon (PPW (b))*fn4 and one count of unlawful possession of ammunition.*fn5 T.C. was placed on probation for one year.
On appeal, T.C. claims that the evidence was insufficient as a matter of law to prove that he was the person who committed the charged offenses, that the trial judge's conduct of the evidentiary hearing was not impartial, and that several of the judge's other rulings constituted reversible error. In our view, there was at least one significant discrepancy in the evidence, which T.C.'s counsel and the judge both failed to detect, and which made the question of guilt or innocence somewhat closer than it would otherwise be. In addition, the judge erred in several of her evidentiary rulings, and although we are confident that she did her best to be fair and to discern the truth, she took an unusually active part in the questioning of defense (but not government) witnesses. Under the circumstances, in our view, the judge might appropriately have paid greater attention to preserving the appearance of impartiality. Nevertheless, we discern no reversible error. Accordingly, we affirm.
I. THE TRIAL COURT PROCEEDINGS
At about 10:00 p.m. on July 2, 2008, Vincent Cartwright and Kevin Amato were robbed at gunpoint by two youths who appeared to be in their teens. The robbers took a bank card and keys from Cartwright and three crisp twenty dollar bills from Amato. Amato had obtained the three twenty dollar bills from an Automatic Teller Machine (ATM) a short time before the robbery.
The robbers fled down an alley, and one of the victims called the police on his cell phone. Officers arrived within a few minutes, and the victims provided reasonably detailed descriptions of the two robbers. Soon thereafter, police detained five young men as possible suspects. One of those detained was T.C.
At a show-up conducted approximately twenty-five minutes after the robbery, both Cartwright and Amato positively identified T.C. as one of the youths who had robbed them. Specifically, they stated that he was the gunman, and that the gunman's confederate had been wearing a mask. T.C. had three fresh twenty dollar bills in his possession. No other fruits of the robbery were recovered from T.C. or found in the surrounding area, and the handgun used in the robbery was never found.
Three of T.C.'s friends, as well as T.C. himself, testified for the defense. According to the defense witnesses, T.C. was not and could not have been the robber. All four young men stated that they and a number of their friends had been playing basketball for several hours at a nearby school. A short time before they left, they saw two other young men running past the scene. Thereafter, police arrived, and the young men who had been playing basketball scattered in different directions. Essentially, T.C.'s friends claimed to have been in his presence until shortly before his arrest, thus providing the basis for an alibi defense.
T.C.'s father, the Program Manager for Intake at the District's Child and Family Services Administration (CFSA), also testified for the defense. The father stated that on July 1, 2008 - the day before the robbery - T.C. had withdrawn $143.00*fn6 from his summer youth employment account at the Chevy Chase Bank. The father further asserted that after T.C.'s arrest, he (the father) had found $80.00 in T.C.'s dresser drawer.*fn7 In response to a question from the court, the father acknowledged that he had not personally observed his son make the withdrawal, but he stated that T.C.'s mother had told him that T.C. had done so. The trial judge immediately sustained her own objection to this testimony as hearsay. T.C. testified in his own behalf, denied any involvement in the robbery, and stated that he had indeed withdrawn approximately $140.00 from an ATM on July 1, and that he had taken $60.00 with him the following day, leaving the rest of the money in a drawer.
The judge, who had interrogated the young defense witnesses in some detail, did not credit their testimony, and she ruled, inter alia, as follows:
Now the court heard from the respondent's friends, C.S., J.R. and Ronald Wright, and the court also heard from T.C. And if the court were to believe their testimony, the court would have to believe that they were playing basketball from 5:30 until 10:00, that they were wearing jeans, playing basketball with no basketball, in the dark , and played basketball after they smoked marijuana.
Mr. Wright said that they had played basketball for four to five hours, they then smoked marijuana and then played basketball again, which seems unlikely. The testimony is contradicted by Officer Small,*fn8 who said that there was no basketball, and the court was dark, and that there was no sporting equipment on the scene, and that he had in fact searched the area.
We have two eyewitnesses who identifi[ed] the respondent, based not just on clothing but also his facial features and his hair, his wristbands and that the respondent was stopped in a short time and within a short distance of the robbery, following the same path of flight identified by Mr. Amato and Mr. Cartwright.
On this evidence, the court finds beyond a reasonable doubt that the respondent took the property that was of value from the two complaining witnesses, that he did so from their immediate actual possession. That he used force and violence to take their property. That he carried the property away without a right to it with the specific intent to steal it. And that at the time he took the property, he had a weapon.
Presumably as a result of her ruling excluding the bank record, the judge made no mention of the testimony of T.C.'s father or of the defense's innocent explanation of the presence of the three twenty dollar bills in T.C.'s pocket, namely, his claimed ATM withdrawal of the previous day. The judge found T.C. involved in armed robbery, PFCV, and related weapons offenses. On October 21, 2008, the judge placed T.C. on juvenile probation for one year. This appeal followed.
II. EVIDENTIARY SUFFICIENCY
T.C. claims on appeal that the evidence against him was insufficient as a matter of law. We disagree.
In assessing claims of evidentiary insufficiency, we view the record in the light most favorable to the District, and we "give full weight to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences." Poulnot v. District of Columbia, 608 A.2d 134, 137 (D.C. 1992); see also In re R.H.M., 630 A.2d 705, 707 (D.C. 1993). Although we have recognized that, depending on the circumstances, eyewitness identification of strangers can be unreliable, see e.g., Benn v. United States, 978 A.2d 1257, 1265 (D.C. 2009) (Benn II); Webster v. United States, 623 A.2d 1198, 1204 n.15 (D.C. 1993),*fn9 that is a consideration that must be evaluated by the trier of fact. Even "the testimony of a single eyewitness can be sufficient to support a conviction so long as a reasonable person could find the identification convincing beyond a reasonable doubt." Benn II, 978 A.2d at 1265 (quoting Peterson v. United States, 657 A.2d 756, 760 (D.C. 1995)) (internal quotation marks omitted).
In this case, positive identifications were made by two witnesses*fn10 at a show-up held some twenty-five minutes after the robbery. Although such "show-ups" necessarily involve a measure of suggestivity, we have also recognized their utility and reliability. See, e.g., United States v. Hunter, 692 A.2d 1370, 1376 (D.C. 1997). Cartwright testified that he recognized T.C. not only by his facial features and dreadlocks, but also because "he was wearing the same wristbands that the person who robbed us did." Amato stated that he identified T.C. on the basis of his dreadlocks and facial features, and like Cartwright, he professed to have no doubt about the accuracy of his identification.
Aside from the identifications, the District relied heavily on the evidence that police found three apparently brand new twenty dollar bills on T.C.'s person, and that shortly before the robbery, Amato had obtained three such bills "from the 711 ATM up the block." In most instances, and perhaps in this case, such evidence should, to use the vernacular, "seal the deal." It would surely be a remarkable and improbable coincidence if Amato had been robbed of three brand new twenty dollar bills and if a short time later, a young man identified by the victims as the robber had in his possession three different brand new twenty dollar bills. "Coincidences happen, but an alternative explanation not predicated on happenstance is often the one that has the ring of truth." Poulnot, 608 A.2d at 139.
In this case, however, there is an unusual quirk. Both complainants identified T.C. as the gunman, and they agreed that T.C.'s fellow-robber was wearing a mask. Cartwright testified that Amato gave the three twenty dollar bills to the masked accomplice, not to the gunman, and he expressed no doubt on that subject. Cartwright stated:
[M]y friend then showed his wallet, to show that there was nothing in it. Then he emptied the other pocket and there was $60 that the other person had taken from him, that my friend, Kevin, had handed the $60 to the other person.
Q: Did you actually see that occur?
Q: Could you see how the, the denominations rather, of the $60?
A: Yeah, they were in $20 bills, and they were brand new, we had just gone to 7-Eleven and they were brand new, just taken out of the ATM.
Amato, on the other hand, believed that he had handed over the bills to the gunman, and not to the accomplice. Amato's recollection was, however, far less positive than Cartwright's:
Q: Where did you have that money?
A: It was in my left pocket.
Q: As you took [it] out, do you remember who[m] you gave it to?
A: I believe it was the man with the gun, but I put my head like to the ground because I was, to be honest, was very upset that this all was going down and I was getting my money taken and there was a gun pointed at my friend. It was like [a] very emotional state.
It does not appear that counsel for either party*fn11 or, for that matter, the judge, recognized that if Cartwright, the complainant who appeared certain of his recollection, was to be believed, then all three bills were surrendered to the masked accomplice, but they were recovered from the young man who was identified by the victims as the robber with the handgun. In her oral findings, the judge, who had evidently taken copious notes, and who recited the evidence in considerable detail, specifically mentioned Amato's statement that he "gave that [money] to the man with the gun." The judge made no reference at all, however, to Cartwright's testimony that he had seen Amato give the bills to the masked robber and not to the gunman.
That the money was found on the alleged gunman does not, of course, establish that T.C. was innocent. Amato, though obviously uncertain, may have been right about which robber received the bills; Cartwright, who expressed no doubt, may nevertheless have been wrong. Moreover, even if the accomplice was the person who first obtained the bills in question, he may subsequently have turned them all over to the gunman (or, there being no honor among thieves, the gunman might even have robbed his masked confederate). Viewing the evidence in the light most favorable to the District, we cannot say, given the identifications and the other evidence, that the judge, as the trier of fact, clearly erred in finding beyond a reasonable doubt that T.C. was involved. We are therefore constrained to reject T.C.'s claim of evidentiary insufficiency.
Nevertheless, the issue is troubling. As we have noted, the police did not find any other fruits of the robbery on or near T.C., and the weapon with which the crime was carried out was never recovered. The alternative explanation for T.C.'s possession of the bills offered by the defense - that the three new twenty dollar bills were a part of T.C.'s ATM withdrawal on the previous day - becomes more plausible in light of the apparent discrepancy in the District's case. Although we do not believe that the uncertainty as to which robber received Amato's money, or the failure of the court and counsel to detect this uncertainty, renders the evidence legally insufficient, it implicates T.C.'s claim that the judge inappropriately injected herself into the defense case by aggressively interrogating the defense witnesses while making no attempt to explore any possible weakness in the District's evidence.
III. T.C.'s CLAIM OF JUDICIAL PARTIALITY
T.C. contends that at the evidentiary hearing, "the court failed to maintain its role as a neutral judge." He asserts that the judge "extensively, unnecessarily, and disparagingly questioned only the witnesses for the defense."*fn12 T.C.'s claim is not without some support in the record,*fn13 but we do not believe that it warrants reversal.
During the presentation of the District's case, the judge posed only a single question to one witness for the government, and no questions at all to any of the others. Specifically, she asked Amato whether he had seen the people who were presented to Cartwright during the show-up.*fn14 Although there were potential weaknesses in the District's case, including the failure of the police to recover the weapon or any of the property taken from the victims (except the three twenty dollar bills), as well as the (unnoticed) discrepancy as to which robber received those bills, the judge left the questioning of the District's witnesses almost entirely to the attorneys for the parties.
By contrast, the judge questioned at length, and with considerable asperity, the defense witnesses who claimed to have played basketball with T.C. and who attempted to provide him with an alibi. Indeed, the court's examination of these witnesses covers the same number of pages of the transcript as their cross-examination by the District's counsel. In the case of the last of these witnesses, Ronald Wright, the transcript contains four pages of examination by the Assistant Attorney General, but six and one-half pages of questioning by the judge.
The tone and manner of the judge's interrogation were sometimes openly incredulous. In fact, the judge appeared on several occasions to be attempting to extract an admission, or to expose a contradiction, rather than to elicit information or clarify the evidence. The judge obviously disbelieved the testimony that the group of young men, some of them comparatively warmly dressed, had spent several hours playing basketball on a hot July day, and much of her questioning was addressed to this subject and to details incidental to it.
The first of these defense witnesses was C.S. After this young man had been examined by T.C.'s attorney and cross-examined by counsel for the District, the following dialogue ensued:
The Court: Wait just one second. You can retake the stand.
The Witness: To my knowledge, I remember him wearing a blue shirt with a blue visor and he had a blue skull cap on with some, I think, they were Two Park shoes, and he had on some ...