In re L.G.T.

735 A.2d 957

• Court: District of Columbia Court of Appeals
• Decided: August 19, 1999
• Docket: No. 97-FS-531
• Status: Published

Opinions

STEADMAN, Associate Judge.

Appellant was found guilty in a juvenile proceeding of armed robbery and assault with a dangerous weapon, and was committed to the custody of the Department of Human Services on February 24, 1997. Appellant argues that the photo array used by the police, found by the trial court to be unduly suggestive, made the resulting identification insufficiently reliable to be introduced as evidence or to sustain the adjudication of delinquency. He also argues that the two charges merge. We affirm the adjudication, while vacating that portion of the judgment finding guilt for assault with a deadly weapon.

I.

Appellant approached and robbed the victim, a lawyer living on Capitol Hill, on April 24, 1996, while it was still light out. The victim was driving her car home, and appellant was riding a small pink bicycle. The victim took specific notice of appellant in her rear-view mirror as she surveyed her surroundings from her car. Though she looked at him only briefly, she focused on him enough to judge from his apparent age and his child-style bike that he appeared to pose no threat. When the victim parked moments later and emerged from her car, she was confronted by appellant, who demanded her bag and struggled over it briefly. Immediately after the victim released the bag appellant stabbed the victim in her side with an unknown object, presumably but not necessarily a knife of some sort. Appellant then sped away on his bicycle. The encounter, during which appellant and victim were within an arm’s length of each other, lasted approximately seven seconds. The victim testified that in the encounter she was focused on appellant’s face and eyes, that he did not look away or avoid eye contact but was very direct, and that she never took her eyes off him. Afterward, the victim walked across the street to her house. After about a minute, she noticed she was bleeding and called 911. During that call, she gave a description of the perpetrator as a fourteen or fifteen year old boy with a normal, slight build and a large Afro, and asked for an ambulance.

The victim was first presented with a photo spread on May 16, 1996. At that time she selected two people who she thought might have been the robber at an earlier age,¹ but stated she was “not at all sure.” Appellant’s picture was not in that photo array. Six months later, a detective presented the victim with a photo of a lineup, and this time the victim identified the appellant without any question.² At trial, the victim also made a positive in court identification of the appellant.

II.

Appellant argues that the second photo, a lineup of seven individuals with Afros among whom, as the court found, appellant was the youngest and the only one without any facial hair, was unduly suggestive and that thus both the out of court and in court identifications by the victim were tainted and should have been excluded as evidence under the doctrine of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Although the trial court did not find any leading behavior or intention on the part of the police during the identification process, the court agreed that the lineup photo itself was unduly suggestive in its formation.³ However, in suppressing an identification, suggestivity is not the end of the inquiry. United States v. Walton, 411 A.2d 333, 337-38 (D.C.1979). The trial court found the victim’s identification of appellant reliable despite the faulted lineup and, in an appropriate use of its discretion, permitted evidence of the identification. We accord considerable deference to a trial court’s determination of reliability based on that court’s greater opportunity to assess the witness. Morras v. United States, 554 A.2d 784, 788 (D.C.1989); Henderson v. United States, 527 A.2d 1262, 1269 (D.C.1987).

The factors that must be judged in a reliability determination of an identification preceded by suggestive police procedure are outlined in Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. 2243 as follows:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

In this case, the reliability of the victim’s identification was supported by the fact that she was in close proximity to the robber during the incident, she focused on the robber’s face, she gave an accurate and specific description to the police, and she felt a high degree of certainty about her final identification. Additionally, she refrained from making misidentifications when given the opportunity to do so during the first police identification procedure. Further, the trial court found that the victim’s in court identification of appellant derived from her independent recollection of the crime, and was not affected by the photo lineup.

There was some discrepancy between the initial age and height estimations given by the victim and appellant’s actual age and height. In her 911 call, the victim first gave an age range of twelve to sixteen, and later narrowed her guess to fourteen or fifteen. Appellant was fifteen years and six months old at the time of the incident. The trial court found the victim’s inability to state an age with greater precision to be inconsequential. The court further found that the difference between the victim’s guess at a height of S'8" and appellant’s self-reported height of 6'1" at the time of trial was adequately explained by the victim, who only saw the boy in a crouched position on a small pink bicycle. The victim stated that she never ventured a guess as to his full standing height, and the court noted that the most critical element of the height description was the victim’s awareness that her young attacker was taller than she, who stood at 5'6". Further, the victim repeated, her description consistently on the 911 call, to police at her home, and again to officers at the hospital emergency room.

In short, the court derived from the victim’s testimony that her identification was reliable based on the relevant Manson factors. Though the trial court evaluated the witness’ credibility, such judgments are an allowable component of a reliability determination. Morriss v. United States, supra; Henderson v. United States, supra. After a review of the record we see no reason to disturb the court’s decision.

III.

Nor do we find reason to reverse the resulting adjudication, especially in a bench trial where the court clearly laid out its reasoning for finding guilt. We apply the familiar and oft-repeated principles governing such review. See, e.g., Kennedy v. District of Columbia, 601 A.2d 2, 2-3 (D.C.1991); Parker v. United States, 601 A.2d 45, 51 (D.C.1991). Sufficiency of evidence is examined on appeal “in the light most favorable to sustaining the verdict.” Jones v. United States, 716 A.2d 160, 161 (D.C.1998); McClain v. United States, 460 A.2d 562, 567 (D.C.1983). Furthermore our ability to review a court’s findings of fact upon which a sufficiency determination is based is substantially limited, allowing reversal only when the finding is clearly erroneous. Poole v. United States, 630 A.2d 1109, 1117 (D.C.1993). The standard is particularly called for where “the finding largely revolves around concerns of credibility and demeanor.” Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 603 (D.C. 1994). Such is the case here, where the court cited not only the victim’s testimony, but also “her facial expressions and her hand expressions and her description” in his findings.⁴

The reliability of the identification also was corroborated independently to some degree by testimony from a detective that appellant, around the time the crime took place, matched the description given by the victim. In particular, appellant wore the very distinctive Afro haircut noted by the victim. While the appellant suggests that this independent evidence was an incorrect basis upon which to make a reliability ruling in the context of admissibility of the identification, the trial court was clearly entitled to take this evidence into account in assessing guilt.⁵

We are not for a moment unmindful of the care that should be exercised with respect to eyewitness identifications of strangers. Nonetheless, “the issue is not whether this court might find reasonable doubt; rather, we can only determine that the evidence is insufficient if we conclude, as a matter of law, that no reasonable [trial judge], acting reasonably, could convict on the evidence presented.” Parker, supra, 601 A.2d at 51(citation omitted). We cannot so conclude on the record here.

IV.

Appellant also argues that the two counts underlying his adjudication should merge because assault with a dangerous weapon is a lesser included offense of armed robbery. Whether two offenses merge is a question of law and thus is reviewed de novo by this court. Hagins v. United States, 639 A.2d 612, 617 (D.C.1994). On the facts of the instant case, it is at least highly questionable whether the armed element of the robbery charge could be met unless the stabbing is considered part of the robbery. See Cooper v. United States, 368 A.2d 554, 557-58 (D.C.1977) (armed element of burglary not met by proof that appellant had in his pocket at the time a pen knife, not a per se dangerous weapon).⁶ We note also that the adjudication of delinquency remains the same whether based on one count or two, and the trial court indicated its disposition would not be affected.

We vacate the portion of the judgment finding guilt on a separate offense of assault with a dangerous weapon. In re T.H.B., 670 A.2d 895, 903 (D.C.1996). In all other respects, the adjudication of delinquency is affirmed.

1 . She testified that the pictures she selected were of considerably younger children, perhaps ten or eleven, so that one had to figure out what they might have looked like in three or four years.

2 . The witness made clear that the detective asked her for a positive identification: "He didn’t say look like, he said is anyone in this picture the individual who stabbed you.” The witness then continued: "I looked at the picture. I knew immediately. There was one individual who was in fact the individual who had stabbed me. But I wanted to take some time to make sure that that was the individual, and so I spent probably another half a minute, maybe, looking at the picture, maybe even a minute. And I identified the individual who, in my mind, there wasn’t any doubt was the young man who had stabbed me.... [W]hen I saw the picture, I instantly recognized the eyes, the same pout on the face, the face construct.” She said her degree of certainty of the identification was "hundred percent.” In cross-examination, she acknowledged that her precise words to the officer at the time were that "Number six [appellant] looks very clearly like the man who stabbed me.”

3 .The photograph itself was not included in the record transmitted to this court, so we proceed on the assumption of undue sugges-tivity.

4 . In finding the victim’s testimony "very very compelling," the court noted the care with which she described events, her focus on events, her description and her repeated statements of concern about not inculpating an innocent person by a misidentification.

5 . We also note that no objection was made to Detective Johnson’s rebuttal testimony at the motions hearing, and thus any inference that the court improperly used the testimony to determine admissibility would need to survive plain error review. Harris v. United States, 602 A.2d 154, 159 (D.C.1992). Here, the government made no reference to the detective’s testimony in its argument on admissibility. Additionally, when the court summarized all the evidence that had been put forth, it acknowledged that the detective's testimony was of limited use. We therefore see no basis for finding plain error in the admissibility adjudication.

6 . While in theory, this might lead simply to eliminating the "armed” element of robbery and retaining the assault with a dangerous weapon as a separate offense, the government makes no specific argument for such a disposition and we therefore do not explore it further, particularly in the context of a juvenile adjudication for the reason stated.