Argued November 20, 2013.
Appeal from the Superior Court of the District of Columbia. (DEL-71-11). (Hon. Milton C. Lee, Trial Judge).
Shirin Ikram for appellant.
Janice Y. Sheppard, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, and Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.
Before GLICKMAN, Associate Judge, and SCHWELB and KING, Senior Judges. Opinion of the court by Senior Judge SCHWELB. Dissenting opinion by Senior Judge KING.
Schwelb, Senior Judge :
Following protracted evidentiary hearings in the Juvenile Branch of the Superior Court's Family Division, A.W. was adjudicated a delinquent on the basis of his alleged commission of assault with intent to rob (AWIR) and misdemeanor malicious destruction of property (MDP). The trial judge placed A.W. on juvenile probation for four months. On appeal, A.W. contends,
inter alia, that the judge erred in denying A.W.'s motion to suppress statements and identification evidence and in prohibiting the defense expert witness from expressing an opinion as to the reliability of the victim's identification of A.W. as his assailant. A.W. also claims that the evidence was insufficient as a matter of law to prove his guilt beyond a reasonable doubt. Primarily in light of the victim's own unequivocal testimony that the person shown in a photograph taken of A.W. less than three hours after the offense was not the person who attacked him, we agree with A.W.'s final claim, and we reverse the judgment without reaching or deciding the other issues that he has raised.
I. THE EVIDENCE
In September 2011, the trial court initially heard testimony on A.W.'s motion to suppress. On September 28, the judge denied the motion. A.W.'s bench trial followed, and the evidence from the motions hearing was made a part of the trial record. The judge granted A.W.'s motion for judgment of acquittal on a charge of aggravated assault, but at the conclusion of the trial he found A.W. guilty of AWIR and MDP.
The evidentiary record in this case is quite extensive, but in this opinion we confine ourselves to a discussion of that part of the evidence that informs our decision with respect to the issue that we view as dispositive. Issues relating to other evidence have been the subject of extensive disagreement and argument between the parties, but we find it unnecessary to address them.
On December 27, 2010, at about 5:10 p.m., Roger Gorke was sitting on a Metro train, listening to music and sending text messages on his cell phone. At the Gallery Place station, four young black persons in their teens or early twenties boarded the train. They appeared to be together, and they attracted his attention because some of them were being " rather loud." Two or more of the members of this group appeared either to be female or cross-dressing males. There is no doubt that the young people were on the train for several minutes and that Mr. Gorke had ample opportunity to, and did, observe them. In particular, he watched and made eye contact with a young member of the group who had short hair, who was not dressed in women's clothing, and who had been seated opposite the exit doors of the train, facing him.
Just before the train arrived at Union Station, the group gathered near the exit. At this point, the young man who had been sitting opposite Mr. Gorke tried to grab Mr. Gorke's cell phone. Mr. Gorke testified that he " hung on and we were -- his momentum of pulling, trying to get the phone, was pulling me out of the train." During the struggle, Mr. Gorke was struck on the head from the side by someone (not the would-be phone thief) whom Mr. Gorke apparently did not see, and Mr. Gorke ended up on the ground on the platform, bruised and bleeding. The assailant released the cell phone, which was damaged as a result of the fracas.
Officer Thaddeus Ferguson, III of the Metropolitan Police Department responded to Union Station, arriving at about 5:30 P.M. After interviewing Mr. Gorke, the officer broadcast a lookout for two black males, one of whom was described as a transgender male with a long curly wig, thigh high boots, jeans, and a dark jacket. Ferguson testified that, in his subsequent report, he identified A.W. in a Metro surveillance video of the scene shortly after the incident, District Exhibit 5, as a person with a wig and long boots. Nothing in the video suggests that this person, who was one of a group of passengers walking down the platform, had been involved in an altercation
with Mr. Gorke, who was on the ground.
Mr. Gorke was transported to Howard University Hospital. At the hospital, Mr. Gorke was interviewed by Detective Colin Dorrity of the Metropolitan Police Department. After relating what had occurred on the train, Mr. Gorke provided the following description of the person who had been seated opposite to him, facing him and who had tried to take his phone: between seventeen and twenty-two years of age, approximately 5'9" in height, with close-cut hair and a tan coat. He described a second member of the group, who had been sitting parallel to him--not the would-be phone-snatcher--as being a transvestite or cross-dresser, six feet in height, with a muscular build, a curly wig or hair, wearing a purple coat, tight jeans, and boots.
Later that evening, Officer Ferguson, who had been canvassing the area, stopped four young people at the Gallery Place Metro Station who appeared to match Mr. Gorke's description of the group. According to Ferguson, one of the four, who turned out to be A.W., spontaneously stated that " we didn't do anything to that white man. He fell on his own. We didn't do anything to that man at Union Station." Ferguson stated that A.W. had a lace-front wig, and he was wearing a dark purple coat, jeans, and long boots, thus matching the description of the non-snatcher in the lookout. The officer detained two of the men, including A.W., until after a warrant check disclosed that they were not wanted by the police, at which point they were released. However, Officer Ferguson identified a photograph which was admitted as District's Exhibit 8 as accurately representing A.W.'s appearance when he was stopped at Gallery Place, and the officer made an in-court identification of A.W. without defense objection. Officer Ferguson also testified that he had seen A.W. on a number of other occasions and that he was always dressed as a woman, with curly hair or a wig.
Based on the information available to him, Detective Dorrity prepared a photo array to display to Mr. Gorke. The photograph of A.W. included in the array was two years old, and it came from another detective's investigation of activities of a gang which had allegedly committed similar crimes, and with which A.W. was suspected of being connected. When the array was shown to Mr. Gorke ten days after the assault, he pointed to the photograph of A.W. and stated that " this man right here, I recognize him." He said that he specifically recalled the " almond-shaped eyes" and that " this is the person that grabbed my phone." At the trial, but before he was shown District's Exhibit 8, Mr. Gorke identified A.W. in court as his assailant.
Detective Dorrity also conducted a videotaped interview with A.W., relevant parts of which were played at trial. In the video, which was admitted as District's Exhibit 11, A.W. confirmed much of Mr. Gorke's account. Although A.W.'s description of his location on the train, in relation to where Mr. Gorke was sitting, was conveyed in substantial part by hand gestures and is not entirely clear, he indicated that he and his nephew had been sitting across the aisle from Mr. Gorke, apparently facing in the same direction. When told by the Detective that Mr. Gorke claimed that
the two of them made eye contact, A.W. did not deny that this was possible. He insisted, however, that he did not snatch the phone or strike Mr. Gorke. Rather, he stated that it was one of the other three boys that tried to take the phone, and a " fat" boy who struck Mr. Gorke on the head.
After the motion to suppress was denied, Mr. Gorke was re-called to the witness stand. In response to questions from counsel for the District, he described his assailant again as " a young African-American, very short hair," and he added that " I really remember the shape of his eyes." Counsel then asked whether " you see that individual in court today," and Mr. Gorke testified that he did, but that this person, who was seated at the defense table, was " dressed very much differently." He stated that " the person, when I saw them [sic], was dressed with a very very short hair, and the hair is significantly different now." On cross-examination, defense counsel asked Mr. Gorke to examine District's Exhibit 8, the photograph of A.W. taken by Officer Ferguson a few hours after the assault. Counsel for the District objected on unstated grounds, but the objection was overruled, and Mr. Gorke testified that he had " never seen this picture before." He stated that the photograph resembled not the assailant with short hair who had been sitting across from him on the train, but rather the " cross-dresser" who had been seated parallel to him, as Mr. Gorke remembered that individual; Mr. Gorke remarked, however, that " that was nine months ago that I saw that person." The following exchange ensued:
Q. So this picture, as far as you remember with nine months behind you, accurately reflects the clothing and the gender impression that you had of that cross dresser?
Q. Now did ...