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Thomas v. United States

Court of Appeals of Columbia District

April 28, 2016

DONNELL THOMAS, Appellant,
v.
UNITED STATES, Appellee.

Submitted February 12, 2016

Appeal from the Superior Court of the District of Columbia (CF3-13688-13) (Hon. Ronna L. Beck and Hon. Robert I. Richter, Trial Judges)

Ron Earnest for appellant.

Vincent H. Cohen Jr., Acting United States Attorney at the time the brief was filed, with whom Elizabeth Trosman, Michael P. Spence, Christine Macey, and Daniel J. Lenerz, Assistant United States Attorneys, were on the brief, for appellee.

BEFORE: Glickman and Blackburne-Rigsby, Associate Judges; and Steadman, Senior Judge.

JUDGMENT

This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment on appeal is affirmed.

Stephen H. Glickman, Associate Judge

The deliberating jury at appellant's trial sent a note asking whether it could consider the absence of alibi evidence in evaluating the government's proof of appellant's presence at the scene of the crime. Over appellant's objection, the judge responded in the affirmative. We hold that the judge did not abuse his discretion in so doing.

I.

On August 2, 2013, two young men confronted Matthew Stone near the intersection of 14th and Belmont Streets and robbed him of his motor scooter at gunpoint. The following day, police officers arrested appellant and a juvenile, B.M., after observing the two of them riding the scooter. Three days later, Stone viewed two photo arrays, each depicting one actual suspect and eight fillers. From one array, he selected B.M.'s photograph as depicting one of the robbers. From the other array, Stone eliminated seven of the fillers, leaving appellant and the remaining filler as potential suspects.

Appellant was charged by indictment with armed carjacking and related offenses. At his trial, Stone described his robbers and identified appellant, noting among other things that appellant had red highlights in his hair at the time. Stone explained that although he was able to eliminate only seven out of the eight other persons shown in appellant's photo array, he could identify appellant as one of the men who had taken his scooter upon seeing him in the courtroom.

The prosecution presented evidence corroborating Stone's identifications. The arresting officer testified about appellant's furtive behavior during the stop and B.M.'s possession of a loaded firearm. A police investigator testified that appellant's hair did have a "reddish color" at the time of his arrest. An officer who assisted with the arrests testified that appellant falsely told her he received the motor scooter as a gift from his grandfather. Video surveillance evidence showed that appellant and B.M. were in the vicinity of 14th and Belmont Streets around the time of the robbery. Appellant sent text messages after the robbery saying he was on a "scooter" or "moped." Finally, the prosecution introduced surveillance evidence to prove ...


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