Appeal from the Superior Court of the District of Columbia (CMD-13769-08) (Hon. Anthony C. Epstein, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before GLICKMAN and OBERLY, Associate Judges, and TERRY, Senior Judge.
After a non-jury trial, appellant Maurice Simmons was convicted of distributing a controlled substance (marijuana).*fn1 On appeal he argues that the trial court erred in denying his motion for discovery sanctions, based on the government's failure to disclose an out-of-court identification procedure in a timely manner before trial, and in denying his mid-trial oral motion to suppress the identification resulting from that out-of-court procedure. For the reasons that follow, we affirm the judgment of conviction.
Appellant's trial was originally scheduled for October 27, 2008, but it was continued to October 31 so that appellant could be tried jointly with his co-defendant, Sergio Waynes. On October 31, for reasons unrelated to this appeal, appellant's case was severed from that of Mr. Waynes and rescheduled for trial on November 6.*fn2 On November 3, however, the government learned that an essential witness would not be available to testify on November 6, so appellant's trial was continued again, on the government's motion, until December 10.
During the proceedings on October 31, defense counsel learned for the first time that the principal officer involved in the case had identified appellant from an array of photographs, and that those photographs had not been preserved. Waynes' counsel and appellant's counsel both urged the court to impose sanctions on the government for its failure to disclose this fact earlier. The court, however, deferred ruling on the request because it did not yet have a sufficient factual record.
When the parties came to court a week later, on November 6, the issue of the out-of-court identification was again brought up. Appellant's counsel asked for permission to "file a motion on the identification issue." The court granted counsel's request but asked counsel to "try to file any motion a week before the trial," which it then set for December 10. Despite counsel's assurances ("Oh, it'll be in before then"), no motion either to suppress the photographic identification or to impose sanctions for the asserted discovery violation was filed prior to trial.
The trial began on December 10. The government presented testimony from two Metropolitan Police officers, Vincent Norris and Edward Stewart. Officer Norris testified that he participated in an undercover drug transaction with appellant, and Officer Stewart stated that he witnessed the transaction from half a block away. Both Norris and Stewart identified appellant in court as the seller of the drugs. Although Norris did not know appellant's name at the time of the transaction, he had patrolled the neighborhood where the transaction took place for several years and had previously seen appellant in the area at least "three or four times."
On cross-examination, appellant's counsel elicited from Officer Norris the fact that other officers had shown him photographs of individuals from the police database, and that he had picked out a photograph of appellant from this group. Counsel also cross-examined Officer Stewart about this procedure, bringing out further details about how the photos were presented to Norris. Neither officer knew what happened to the photographs after Norris identified appellant from one photo.
After the government rested, defense counsel argued that the government had violated its discovery obligations by failing to make the photographs available to the defense. Counsel asked the court to "strike the testimony regarding the identification" because there had been "no explanation for why the photograph[s] [were] not preserved." The court ruled, however, that sanctions were not appropriate, in part because appellant could have obtained copies of the photographs if he had made a timely discovery request, remarking that "the time to raise a problem with the discovery was before trial, not after the government rested."
The trial court also ruled that, even if "the use of the photograph" was suggestive ("I'm willing to assume that there was only one photograph that looked anything like Mr. Simmons"), it was "not unnecessarily suggestive." The court found that the purpose of the identification was limited because Norris already "had a clear picture in his mind of who this person was, and it was just to put a name with the face." Because the identification involved the officer's own internal investigatory practices, it was "not like showing a nine photograph array to a civilian witness." After finding that Norris "saw more than one photograph" and that he "had no hesitation about picking Mr. Simmons out," the court ruled that the identification was reliable and therefore admissible.
Appellant argues that the government violated its discovery obligations and that, as a sanction, the out-of-court photographic identification should have been suppressed and all the testimony about it stricken. Super. Ct. Crim. R. 16 (a)(1)(C) requires the government, at the defendant's request, to permit the defense to "inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places . . . which are within the possession, custody or control of the government." This provision has often been applied to require the government to preserve "all photographic arrays" from which out-of-court identifications are made. See, e.g., Sheffield v. United States, 397 A.2d 963, 967 (D.C. 1979). Thus we agree ...