Davis v. United States

498 A.2d 242, 1985 D.C. App. LEXIS 490
District of Columbia Court of Appeals·Decided September 23, 1985·No. 83-1068·Published·Cited by 25 cases

Opinions

NEBEKER, Associate Judge:

Appellant was charged by indictment with three counts of armed robbery and one count of assault with intent to commit [244] robbery while armed, in violation of D.C. Code §§ 22-2901, -3202, -501 (1981). The charges stemmed from robberies committed on October 26, 1982, and November 17, 1982. After a hearing, appellant’s motion to suppress identification evidence was denied, and his trial began. A jury found appellant guilty on all counts. He was sentenced to concurrent prison terms of seven to twenty-one years on each of the first two robbery counts. The court suspended sentence on the remaining two counts and placed appellant on five years probation to be served after his prison term.1 Appellant now contends that the trial court erred in admitting the identification evidence, in denying his motion for judgment of acquittal on two counts on the ground that they merged with the two other charges, in instructing the jury on the theory of aiding and abetting over appellant’s objection, and in commenting on the lighting in the courtroom to clarify for the record the testimony of an eyewitness. Finding no error, we affirm.

The relevant facts may be stated briefly. On October 26, 1982, the Chesapeake Cleaners was robbed by three young men, one armed with a gun. The store was again robbed on November 17, 1982. Eyewitnesses identified appellant as one of the robbers on both occasions, and as the gunman in the first incident. Two eyewitnesses later testified that they recognized appellant from the neighborhood, where they saw him regularly.

On November 2,1982, the police received an anonymous tip. The caller stated that one of the armed robbers from the October 26 incident was standing on the corner of 6th and Chesapeake Streets, S.E., near Chesapeake Cleaners. The caller described the clothing the person was wearing at the time of this second sighting. Two Metropolitan Police officers in a squad car responded to investigate the tip. Appellant matched the description given by the tipster. The police officers stopped him; the officer who was driving the squad car displayed his service revolver to effect the stop.

The officers detained appellant near the squad car for approximately 15 minutes while they attempted, unsuccessfully, to locate the anonymous caller. No one at the cleaners admitted making the call; but Mrs. Choung and Miss Lee, the co-owner and her employee, both victims of the October 26 robbery, viewed appellant through the window of the cleaning establishment. At that time, each woman stated that appellant might be the robber, but neither was willing to make a positive identification.2 At some point during this showup, appellant gave his name to the officers. Subsequently, three witnesses separately identified appellant from a photo array and lineup. A fourth witness identified him from a photo array and a photograph of the lineup.

I

Appellant moved pretrial to suppress identification evidence. His theory was that all identifications were the fruit of his stop and detention on November 2. He argued that the stop for the showup was an arrest made in- violation of his Fourth Amendment rights, that his photo was included in the array shown to each witness as a direct result of his identifying himself to the officers upon their request at the time of the stop, that his presence in the lineup was the result of his being identified from the photo array, and that all identification evidence, therefore, had to be suppressed.3 After hearing evidence and ar[245] gument of counsel, the trial judge ruled the evidence admissible. Appellant argues now, based on the grounds he urged below, that the trial judge erred. We disagree.

After the reported second sighting, appellant was stopped for approximately 15 minutes while a police officer attempted to locate the caller and to persuade Mrs. Choung and Miss Lee to view appellant. “[Wjhere police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice.” United States v. Hensley, — U.S. -, -, 105 S.Ct. 675, 677, 83 L.Ed.2d 604 (1985), citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). A brief stop of an individual, based on reasonable suspicion, to determine his identity while obtaining more information “may be most reasonable in light of the facts known to the officers at the time.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Appellant was released as soon as the officers ascertained that Mrs. Choung and Miss Lee would make no positive identification at that time. Under the circumstances, the duration of the stop did not transmute it into an arrest. Wilkerson v. United States, 427 A.2d 923, 925 (D.C.1981) (stop constitutionally valid when there is a reasonable relationship between the scope of the stop and the justification for its initiation).

Appellant contends that, because the officer driving the patrol car drew his service revolver as he approached appellant, the stop was actually an arrest. Appellant is mistaken. It is reasonable for a police officer to display his weapon while confronting a suspected gunman and such action does not by itself transform a Terry stop into an arrest. See Hensley, supra, — U.S. at-, 105 S.Ct. at 679-82 (police officer drew revolver to stop suspect described in “wanted flyer” as participant in armed robbery; the stop was nevertheless a valid Terry stop); see also Miley v. United States, 477 A.2d 720, 723 (D.C.1984). Once appellant had been frisked and found unarmed, he was neither handcuffed nor held at gunpoint. Procedures followed by the police officers were reasonable in light of the facts known to them at the time of the stop. Because appellant’s stop was lawful, his “tainted identifications” argument fails.4

II

Appellant contends that the trial court erroneously denied his motion for judgment of acquittal on two of the charges of which he was convicted. We find no error.

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Davis v. United States, 498 A.2d 242, 1985 D.C. App. LEXIS 490 (D.C. 1985).

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Davis v. United States
498 A.2d 242 (District of Columbia Court of Appeals, 1985)