Tywon M. HAGER and Devon Davis, Appellants,
UNITED STATES, Appellee.
Argued Feb. 13, 2013.
[Copyrighted Material Omitted]
Bruce A. Johnson, Jr., for appellant Hager.
Jenifer Wicks, Washington, DC, for appellant Davis.
Elizabeth Gabriel, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Reagan M. Taylor, Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and OBERLY, Associate Judges, and REID, Senior Judge.
OBERLY, Associate Judge:
Devon Davis and Tywon Hager were convicted of armed robbery, assault with intent to commit robbery, and possession of a firearm during a crime of violence (" PFCV" )  in connection with an incident on the early morning of July 1, 2008. Davis was separately convicted of escape  and violating the Bail Reform Act (" BRA" ). In addition to mounting a constitutional challenge to his exclusion from the voir dire process, Davis raises evidentiary challenges to his convictions for armed robbery, assault with intent to commit robbery, and PFCV. Davis does not separately challenge his escape and BRA convictions. We find no merit to Davis's evidentiary arguments. Because we find that the trial court committed reversible error by denying Davis his right of presence during voir dire, however, we reverse the judgment against him and remand his case for a new trial. Hager does not challenge the conduct of voir dire without his presence, but argues only that the trial court erred in admitting evidence of his pretrial identification by the complainants and that there was insufficient evidence presented at trial to support his convictions. As in Davis's case, we find Hager's evidentiary arguments without merit and affirm the judgment against him.
A. The Robbery
At approximately 1:30 on the morning of July 1, 2008, Jamar Harrison, his mother Rhonda Harrison, and two of his friends, Corey Sheppard and Charles Ford, were returning from a 7-Eleven and parking their car when they saw a black Mercedes Sport Utility Vehicle (" SUV" ) stop in the middle of the street in front of them. Three men jumped out of the SUV and approached them with guns as they got out of their car. After taking cash and cell phones from the victims, the three men
returned to the SUV and drove away. The victims reported the robbery to police and gave descriptions of their attackers. The description of one of the attackers was of a heavily built black male with " long dreads" wearing a green shirt and blue jean shorts.
The police tracked Jamar Harrison's stolen cell phone to an alley where three or four black men were seen talking among themselves. Upon approach, the men ran from the police. In the alley, the police found a black Mercedes SUV and a second stolen cell phone that was determined to belong to Ford. Jamar Harrison's wallet was in the SUV. Appellant Davis's fingerprint was found on the phone in the alley. Shortly thereafter, three men generally matching the description of the robbers were spotted running along a fence line near the alley and into an apartment building. A police dog tracked human scent from the black Mercedes SUV in the alley to the same apartment building. Once inside the building, the dog led the police to an apartment where Davis's mother lived.
The police found Davis, Hager, and a third man in the bedroom of Davis's mother's apartment. Hager, a black male wearing his hair in long dreadlocks, was wearing blue jean shorts and a green t-shirt somehow wrapped around his body. A " man-sized" green shirt was later collected by police on a pile of clothes that contained no other " man-sized" clothing near the same bedroom. Jamar Harrison's cell phone was found on a dresser in the bedroom. When arrested, Hager was in possession of $801.
B. The Pretrial Identifications
Later the same morning, Jamar Harrison, Sheppard, and Ford were separately shown photo arrays for both Hager and Davis. Sheppard was unable to make an identification of Hager. Jamar Harrison selected Hager's photo and said, " Maybe number 1, he looks like the driver." Ford also chose Hager's photo and stated, " This looks most like the dude with the dreads." When shown a photo array for Davis, Ford was unable to make an identification. Sheppard selected Davis's photo and said, " This face looks familiar." Harrison also picked Davis's photo and said, " Maybe number 3, it looks like the person who checked me."
At trial, both Hager and Davis moved to suppress the identifications on due process grounds. The trial court denied the motions, concluding that the circumstances of the identifications were not unconstitutionally suggestive. In court, none of the complainants identified Hager or Davis as their attackers. Jamar Harrison testified that he would recognize his robbers if he saw them again, but when asked if he saw any of them in the courtroom, he answered " No." On cross-examination, when asked why he picked Davis's picture from the array, Sheppard testified that he " picked the person because I was not sure ... the picture's, like, misleading. So it's different from seeing people face-to-face than the actual person." Sheppard further testified that he did not see any of the perpetrators in the courtroom. Ford testified on cross-examination that the person he picked in the photo array looked most like the robber with dreadlocks, but he was not sure that the robber was in the photo array at all. Ford denied seeing any of the robbers in the courtroom. The trial court permitted the government to introduce, over objection, the photo arrays and the pretrial identifications.
C. The Cell Phones
1. Ford's Cell Phone Found in the Alley
During trial, the government moved to admit Ford's stolen ...