Parker & Rollerson v. United States

• Court: District of Columbia Court of Appeals
• Decided: April 17, 2025
• Docket: 16-CF-1068 & 16-CF-1098
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 16-CF-1068 & 16-CF-1098

DEANGELO PARKER & DELONTA Q. ROLLERSON, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the District of Columbia (2015-CF3-015573 & 2015-CF3-015572)

(Hon. Anita Josey-Herring, Trial Judge)

(Argued November 6, 2019 Decided April 17, 2025)

Cecily E. Baskir for appellant Parker.

Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant Rollerson.

Patricia Heffernan, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, Elizabeth Trosman, John P. Mannarino, Jennifer Fischer, and Thomas Saunders, Assistant United States Attorneys, were on the brief, for appellee. 2

Before BECKWITH, Associate Judge, THOMPSON, * Senior Judge, and EPSTEIN, ** Senior Judge, Superior Court of the District of Columbia.

Opinion for the Court by Senior Judge EPSTEIN, Superior Court of the District of Columbia.

Dissenting opinion by Associate Judge BECKWITH at page 48.

EPSTEIN, Senior Judge, Superior Court of the District of Columbia: A jury

found appellants DeAngelo Parker and Delonta Q. Rollerson, along with their co-

defendant Maurice Ricks, guilty of armed robbery and related gun possession

charges. 1 On appeal, Mr. Parker and Mr. Rollerson raise challenges to investigative

stops, show-up identifications, and the trial court’s denial of severance motions,

management of a witness’s testimony, and response to a question by the jury.

Applying established legal principles to the facts of this case, we affirm.

I. Background

On November 8, 2015, at approximately 3:30 a.m. near the intersection of

55th Street and Eastern Avenue in Northeast D.C., two men, one armed with a

∗ Senior Judge Thompson was an Associate Judge of the court at the time of submission. On February 18, 2022, she began her service as a Senior Judge. ∗∗ Sitting by designation pursuant to D.C. Code § 11-707(a). Senior Judge Epstein was an Associate Judge of the Superior Court at the time of submission. On February 24, 2025, he began his service as a Senior Judge. 1 D.C. Code §§ 22-2801, -4502, -4504(b). 3

shotgun, approached Charmagne Eccles, one hit her in the face, and they stole two

iPhones. The two men started to leave but immediately returned. The gunman

threatened to kill Ms. Eccles with his shotgun, the gunman and she struggled, the

shotgun discharged, and Ms. Eccles got possession of the weapon. The two men ran

off, but returned with a third man and asked Ms. Eccles to return the shotgun.

Ms. Eccles ran into the street and flagged down a police vehicle, and the three men

ran away.

When Detective Thomas O’Donnell arrived at the scene shortly after the

robbery, he used an application on an iPhone to track Ms. Eccles’s stolen iPhones.

The application led officers to the 5400 block of James Place, where they

apprehended Mr. Ricks after he attempted to flee. The police found Ms. Eccles’s

phones in Mr. Ricks’s pocket, and they arrested him.

The police established a perimeter around a city block near the robbery.

Officers searched for the two remaining suspects with the help of a K-9 unit and a

police helicopter. Around 5:15 a.m., a police dog made contact with two men

ducked down behind shrubs in a backyard inside the perimeter. The two men were

later identified as Mr. Parker and Mr. Rollerson. In show-up identifications,

Ms. Eccles identified Mr. Parker and Mr. Rollerson as two participants in the

robbery. 4

All three defendants were charged with armed robbery and possession of a

firearm during the commission of a crime of violence (PFCV), and Mr. Ricks was

also charged with assault with intent to kill (AWIK).

Mr. Parker, Mr. Rollerson, and Mr. Ricks filed pretrial motions to suppress,

arguing that the police stopped them without reasonable suspicion that they were

participants in the robbery, and that evidence obtained as a result of the illegal stops

should be suppressed. After a pretrial evidentiary hearing, the trial court concluded

that the officers had reasonable suspicion for each stop.

Mr. Parker and Mr. Rollerson filed pretrial motions to suppress Ms. Eccles’s

out-of-court identifications. After a pretrial evidentiary hearing, the trial court

denied the motions, finding that the show-up identification procedure was not unduly

suggestive and that the identifications were reliable.

Mr. Parker and Mr. Rollerson filed motions to sever their trial from Mr.

Ricks’s, arguing that Mr. Ricks would present a conflicting defense and become a

second prosecutor. The trial court denied the motion. During the trial, Mr. Parker

and Mr. Rollerson renewed their severance motions, and the trial court again denied

their request.

The government called Ms. Eccles as a witness on April 28. Over defense

objections, the trial court delayed her cross-examination until she got federal 5

immunity because the defense intended to question her about violations of federal

criminal law in multiple jurisdictions. Ms. Eccles got this immunity on the next trial

day, which was May 2. Her cross-examination began May 10, which was two trial

days later.

During its deliberations, the jury sent a note asking whether it could convict

Mr. Ricks of AWIK on an aiding and abetting theory if the possibility that Mr.

Rollerson was the gunman created a reasonable doubt that Mr. Ricks was the

gunman. Only Mr. Ricks was charged with AWIK, and the government argued to

the jury that Mr. Ricks himself assaulted Ms. Eccles with the gun, not that he aided

and abetted a co-defendant. Rejecting Mr. Rollerson’s proposal to address the

robbery charge in its answer, the trial court told the jury that it could convict Mr.

Ricks of AWIK only if the government proved beyond a reasonable doubt that he

was the gunman who tried to kill Ms. Eccles. Mr. Rollerson moved for a mistrial,

and the trial court denied the motion.

The jury convicted each defendant of armed robbery and PFCV. The jury

could not reach a verdict on the AWIK charge against Mr. Ricks. 6

Mr. Parker and Mr. Rollerson filed timely appeals. 2 Pursuant to D.C. App. R.

28(j), Mr. Rollerson adopted Mr. Parker’s arguments concerning the stops, the out-

of-court identifications, severance, and Ms. Eccles’s cross-examination.

II. Reasonable Suspicion

Mr. Parker and Mr. Rollerson argue that the trial court erred in denying their

motions to suppress because the facts described in the testimony at the pretrial

hearing did not establish reasonable suspicion for the investigatory stops. The

government does not dispute that both men were stopped shortly after the police

spotted them, 3 but it argues that these stops were justified in order to give Ms. Eccles

a chance to see whether or not she could identify them as participants in the robbery.

We conclude that the evidence presented by the government established that the

police had reason to suspect that the two men found hiding in a dark backyard inside

2 At Mr. Ricks’s request, this court dismissed his appeal. 3 Case law from other jurisdictions supports the conclusion that Mr. Parker was seized when the police dog, released by the officers, used the physical force of his bite to stop him. See, e.g., Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir. 1998) (holding that plaintiff was seized when police dog was deployed “to find, bite, and detain” potential burglary suspect); Collins v. Schmidt, 326 F. Supp. 3d 733, 741 (D. Minn. 2018) (holding that police dog’s act of biting plaintiff on the arm and leg constituted a Fourth Amendment seizure); McKay v. City of Hayward, 949 F. Supp. 2d 971, 979 (N.D. Cal. 2013) (concluding that a bystander was seized when he was bitten by a police dog that a police officer searching for a robbery suspect intentionally deployed in his yard). 7

a police perimeter around 5 a.m. were the two remaining suspects. Because the stops

were justified by reasonable suspicion, the subsequent show-up identifications were

not the product of unconstitutional seizures.

A. Evidence at the Suppression Hearing

At the hearing on the motions to suppress evidence obtained as a result of the

stops of each of the three defendants, the government called as its sole witness

Detective Darin Booher. Detective Booher was not present at the scene on the night

of the robbery, and he based his testimony on what Detective O’Donnell told him

and on police paperwork. Detective O’Donnell was present when Mr. Ricks was

stopped, but not when Mr. Rollerson and Mr. Parker were stopped by other officers.

Detective Booher did not speak directly with any other officers who were at the

scene, and he did not listen to the police radio broadcasts.

Detective Booher testified that the robbery occurred around 3:37 a.m., marked

units and uniformed officers arrived within minutes, and officers stopped Mr. Ricks

approximately ten minutes after the robbery.

Detective Booher testified that the police established a perimeter around the

block bounded by James Place, Hunt Avenue, 55th Street, and Eastern Avenue. He

testified that the police used the Find My iPhone application to construct this

rectangle. 8

Detective Booher testified that after the police apprehended Mr. Ricks, a K-9

dog unit and a police helicopter joined in the search for the two remaining suspects.

He said that police first spotted Mr. Parker and Mr. Rollerson when “[t]hey were

ducked down behind home [sic] shrubs in the back yard of a residence” inside the

perimeter. Detective Booher testified that he believed that Mr. Parker and

Mr. Rollerson were apprehended within two blocks of the robbery, although he did

not know the exact location.

Detective Booher testified that a police dog tracked to a location where Mr.

Parker attempted to flee. Detective Booher “remember[ed] [D]etective O’Donnell

specifying that [Mr. Rollerson] tried to jump over a fence” after the dog was released

and “either got tripped up or was apprehended immediately on the other side of the

fence.” Detective Booher did not know whether the officers made any

announcements or gave any warnings before releasing the dog, although he said it

would have been standard procedure to do so.

After Mr. Parker and Mr. Rollerson were stopped in the backyard, the police

conducted a show-up identification, and Ms. Eccles identified each of them about an

hour and 45 minutes after the robbery. 9

B. Legal Principles

In reviewing the trial court’s denial of a motion to suppress, we evaluate legal

conclusions de novo and “make an independent legal assessment as to whether” a

detention was supported by reasonable suspicion. Umanzor v. United States, 803

A.2d 983, 991 (D.C. 2002). Looking at the record in the light most favorable to the

court’s ruling, Mayo v. United States, 315 A.3d 606, 617-18 (D.C. 2024) (en banc),

we “leave untouched factual findings so long as they are not clearly erroneous.”

Jenkins v. United States, 152 A.3d 585, 589-90 (D.C. 2017). “The ‘clearly

erroneous’ standard of review is highly constraining,” although “it does not relieve

us of our obligation to conscientiously review the trial court’s finding based on the

record presented.” Hawkins v. United States, 248 A.3d 125, 130 (D.C. 2021)

(quotation and citation omitted).

One exception to the Fourth Amendment’s warrant requirement is that “the

police may briefly detain a person for an investigatory or Terry stop, even if they

lack probable cause, if the officers have a reasonable suspicion based on specific and

articulable facts that the person has just committed a crime.” Bennett v. United

States, 26 A.3d 745, 751 (D.C. 2011) (quotation and citation omitted); see Terry v.

Ohio, 392 U.S. 1 (1968). The government has the burden to establish the legality of 10

a warrantless stop. See Davis v. United States, 306 A.3d 89, 98 (D.C. 2023);

Akinmboni v. United States, 126 A.3d 694, 697 (D.C. 2015).

In assessing whether officers had particularized reasonable suspicion, we

examine the “the totality of ‘the facts available to the officer at the moment of the

seizure’” to determine whether they would “‘warrant a [person] of reasonable

caution in the belief’ that [the stop] was appropriate.” Mayo, 315 A.3d at 620

(quoting Terry, 392 U.S. at 21-22). “Terry’s reasonable articulable suspicion

standard requires … considerably less than proof of wrongdoing by a preponderance

of the evidence, and obviously less than is necessary for probable cause.” Mayo,

315 A.3d at 620 (quotation and citation omitted). “However, the officer must be

able to articulate something more than an inchoate and unparticularized suspicion or

hunch,” and “he must provide some minimal level of objective justification for

making the stop.” Goines v. United States, 964 A.2d 141, 144 (D.C. 2009)

(quotation and citation omitted); Bennett, 26 A.3d at 751 (an articulable suspicion is

“more than a mere ‘hunch’ or ‘gut feeling’”) (quotation and citation omitted).

“In considering whether reasonable articulable suspicion existed, we must

consider the totality of the circumstances, as viewed through the eyes of a reasonable

and cautious police officer on the scene, guided by his experience and training.”

Posey v. United States, 201 A.3d 1198, 1201 (D.C. 2019) (quotation and citation 11

omitted); see Green v. United States, 974 A.2d 248, 256 (D.C. 2009). “[I]n

evaluating whether an investigative detention is unreasonable, common sense and

ordinary human experience must govern over rigid criteria.” United States v.

Sharpe, 470 U.S. 675, 685 (1985). “Thus, the determination of reasonable suspicion

must be based on commonsense judgments and inferences about human behavior.”

Illinois v. Wardlow, 528 U.S. 119, 125 (2000); see United States v. Taylor, 49 A.3d

818, 825 (D.C. 2012) (“common sense conclusions about human behavior may

contribute to reasonable suspicion”) (quotation and citation omitted).

“Multiple factors may contribute to the totality of the circumstances, including

the time of day, flight, the high crime nature of the location, furtive hand movements,

an informant’s tip, a person’s reaction to questioning, a report of criminal activity or

gunshots, and viewing of an object or bulge indicating a weapon.” Posey, 201 A.3d

at 1201-02 (quotation and citation omitted); Armstrong v. United States, 164 A.3d

102, 110-11 (D.C. 2017) (explaining that factors relevant to the totality of the

circumstances include spatial and temporal proximity to the crime, the number of

people in the area, the time of day, and whether the suspect fled from the police).

The issue is not whether any one factor individually justifies a stop, but rather

whether “collectively” the totality of the circumstances supports a determination that

the officers had reasonable suspicion for an investigatory stop. Mayo, 315 A.3d at

637. 12

To have reasonable suspicion, officers “need not rule out the possibility of

innocent conduct.” Mitchell v. United States, 314 A.3d 1144, 1151 (D.C. 2024)

(quotation and citation omitted). “[T]he police need not rule out every innocent

explanation for suspicious behavior in order to justify an investigatory stop.”

Pridgen v. United States, 134 A.3d 297, 304 n.20 (D.C. 2016) (quotation and citation

omitted). “[I]nnocent individual acts or circumstances do not rule out a finding of

reasonable suspicion,” and “the Terry standard does not require that an officer rule

out the possibility of innocent behavior, for suspicious conduct by its very nature is

ambiguous, and the principal function of the investigative stop is to quickly resolve

that ambiguity.” Umanzor, 803 A.2d at 993 (quotation and citation omitted).

“[S]imply because certain conduct may be construed as consistent with innocent

behavior does not mean that this conduct may not form the basis for reasonable

suspicion.” Gomez v. United States, 597 A.2d 884, 890 (D.C. 1991) (quotation and

citation omitted).

“Trustworthy hearsay is admissible in a suppression hearing and may justify

a finding of probable cause.” In re K.H., 14 A.3d 1087, 1091 (D.C. 2011) (emphasis

in original); see also United States v. Matlock, 415 U.S. 164, 175 (1974) (holding

that there is no automatic rule against the admission of hearsay in an evidentiary

hearing on a suppression motion and reversing the trial court’s exclusion of reliable

hearsay evidence). However, hearsay testimony may be “too unreliable and 13

uncertain to support” a finding of probable cause or reasonable suspicion. In re

K.H., 14 A.3d at 1091.

C. Discussion

The facts recounted by Detective Booher made reasonable the police’s

suspicion that the two men found hiding in a dark backyard inside a police perimeter

around 5 a.m. within two hours of an armed robbery were the two suspects still at

large. In addition, the trial court could reasonably conclude that Detective Booher’s

hearsay testimony was reliable.

1. Facts establishing reasonable suspicion

At least four sets of facts support the reasonableness of the suspicion that the

two men found in the backyard were two participants in the robbery.

First, the time and place of the stop contribute to reasonable suspicion of Mr.

Parker and Mr. Rollerson. Reasonable suspicion is more likely to exist when a

person is found at “a time and place where people are not expected to be going about

their daily business.” Mitchell, 314 A.3d at 1153. In Funderburk v. United States,

260 A.3d 652, 659 (D.C. 2021), we found particularized suspicion when the police

stopped people in an alley at an hour—2:20 a.m. on a December weeknight—when

one would not expect to see people engaged in innocent activity there. One would 14

not expect to see people engaged in innocent activity in a backyard shortly after 5

a.m. In Umanzor, we upheld the reasonableness of the stop of a blue two-door

Honda carrying three individuals even though the lookout was for a gray two-door

Honda containing one or two individuals and the stop occurred 25 minutes after the

alleged crime, in part because “[t]he stop of appellant’s vehicle was made at

approximately 2:45 a.m. —hardly an hour when Hondas of the type described in the

lookout are ubiquitous on our city streets.” See 803 A.2d at 989, 994. Five o’clock

in the morning is hardly an hour when people are ubiquitous in our city’s backyards

in November. 4 Officers are entitled to use their common sense, see Sharpe, 470 U.S.

at 685, and common sense tells us to suspect that two people at this hour in this

location in these circumstances are not there for an innocent reason. 5

4 “[W]e are wary of over-relying on attempts at case matching” in the fact- specific Fourth Amendment context. See Mayo, 315 A.3d at 638. We recognize that Funderburk and Umanzor are distinguishable in some respects, but they still provide support for our conclusion. 5 Our dissenting colleague states that shortly after five in the morning, “some early birds might well be taking out the trash, heading out for a run, or walking their dog.” We are dubious that many people are engaged in these activities in pitch darkness in their backyards at this time, much less that many pairs of people do so in the same backyard. But in any event, the police can have reasonable suspicion even when a substantial possibility exists that the suspect’s conduct has a legitimate explanation. See Mitchell, 314 A.3d at 1151; Pridgen, 134 A.3d at 304 n.20; Umanzor, 803 A.2d at 993; Gomez, 597 A.2d at 890. 15

Second, the police found Mr. Parker and Mr. Rollerson not engaged in

innocent activity, but rather hiding by shrubbery, which is suspicious behavior in

these circumstances. Detective Booher testified that the two men “were ducked

down behind [s]ome shrubs in the back yard of a residence that was contained

within” the perimeter.

Third, the existence of the police perimeter made more suspicious the decision

of two men to position themselves behind shrubbery in a backyard inside the

perimeter. Although the police could not know for sure, it was reasonable for them

to suspect that people inside the perimeter were aware that the perimeter existed.

Detective Booher testified that the police established a “perimeter” around the block

containing the backyard in which Mr. Parker and Mr. Rollerson were found, and the

term “perimeter” in this context can only mean that the police positioned themselves

around the block. The evidence established that at least some of the police were

wearing uniforms and using marked police vehicles.

Although the trial court found that the perimeter area was “secure,” Detective

Booher’s testimony did not establish this fact. However, even if the police allowed

a number of people to enter or leave, that would not make any less suspicious the

presence of two people hiding in a backyard inside the perimeter for an extended

period of time. The police reasonably suspected that two people hiding almost two 16

hours after the police established the perimeter did so because they were afraid that

if they tried to leave the area, the police would see that they matched the description

provided by the victim who flagged down a police car as they left the immediate

scene of the robbery. In addition, it would not make any sense for a suspect to enter

the block in order to hide inside a police perimeter (and indeed it is questionable

whether the police could lawfully stop anyone entering—except maybe to warn them

that dangerous robbers may be hiding there).

More detailed information about the security of the perimeter and the amount

of pedestrian traffic would be relevant if the police had stopped Mr. Parker and Mr.

Rollerson when they were walking or standing on the sidewalk or street, but the

police did not. Detective Booher could not say that no civilians were out and about

inside the perimeter, and in some circumstances, knowing the number of people in

the area is important in assessing whether reasonable suspicion exists. See

Armstrong, 164 A.3d at 111. However, the number of people on streets and

sidewalks is irrelevant to whether the police reasonably suspected that two men

hiding in a backyard within the perimeter were the missing suspects.

Fourth, the timing of the stops in relation to the armed robbery supports a

finding of reasonable suspicion. Close temporal proximity between a crime and a

stop may help to establish reasonable suspicion to stop a person near a crime scene, 17

and conversely, the passage of time after a crime generally weakens any suspicion

that people in the area of the crime committed it. See Mitchell, 314 A.3d at 1153

(discussing the significance of temporal and geographic proximity for reasonable

suspicion); Funderburk, 260 A.3d at 660 (finding reasonable suspicion when

officers arrived thirty seconds after hearing gunshots); Hampleton v. United States,

10 A.3d 137, 144-45 (D.C. 2010) (finding reasonable suspicion where a robbery

suspect was spotted a short distance from the robbery scene “ten to fifteen minutes

later”).

The police stopped Mr. Parker and Mr. Rollerson about an hour and forty-five

minutes after the robbery. However, in the circumstances of this case, the passage

of substantial time between the crime and the stop tends to strengthen reasonable

suspicion. As we have explained, it was reasonable for the police to suspect that

people inside the perimeter were aware that the perimeter existed. In addition, the

police established the perimeter within two blocks of the robbery minutes after it

occurred, and it was reasonable for the police to suspect that anyone hiding inside

the perimeter within two hours of the robbery had been hiding there since the

perimeter was established. 6 If the suspects had entered a home when the police

The lack of testimony about why the police set up this particular perimeter 6

and how secure it was may reduce the level of suspicion about a person hiding in a backyard inside it, but it does not make the suspicion unreasonable, especially since 18

established the perimeter, they would presumably stay in this place of safety rather

than leave the residence and hide in a backyard. After the perimeter was established,

it would not make any sense for a suspect to enter the area in order to hide inside the

perimeter. In these circumstances, it is reasonable to suspect that two people still

hiding almost two hours after the police established the perimeter were doing so

because they knew that they were the people the police were looking for.

We do not rely on two factors cited by the trial court, but the absence of these

factors does not undermine our conclusion that the police reasonably suspected that

the two men in the backyard were the two suspects still at large.

First, we do not rely on any inference that the officers who stopped Mr. Parker

and Mr. Rollerson had information about the appearance of the two suspects still at

large. This inference may be reasonable, and “[i]n a case concerning a fast-moving

sequence of events involving a number of law enforcement officers at several

different locations, this court applies the doctrine of collective knowledge in

deciding whether police action was justified.” Hampleton, 10 A.3d at 145 (quotation

Detective Booher’s testimony established that the perimeter was only one or two blocks away from the crime scene, and Mr. Ricks was stopped in the area within ten minutes after the robbery with the two stolen cellphones. See Hampleton, 10 A.3d at 145 (finding reasonable suspicion to stop one robbery suspect when the police had “clear indication” that another suspect had fled across the same area). 19

and citation omitted). However, Detective Booher testified that he did not know

whether the description provided by Ms. Eccles of the three robbers had been

broadcast prior to the seizures or when it was broadcast.

Nevertheless, in the circumstances of this case, the officers had reasonable

suspicion to stop Mr. Parker and Mr. Rollerson even if they did not have a

description of the two remaining suspects. “[T]his court has found reasonable

suspicion despite the lack of a description of a suspect” when “the attendant

circumstances suggested that the universe of potential suspects was quite small.”

See Mitchell, 314 A.3d at 1153 (quotation and citation omitted). Anyone hiding in

a backyard inside a police perimeter in the darkness around 5 a.m. less than two

hours after a nearby armed robbery was part of a very small universe of potential

suspects, and even if the officers who stopped Mr. Parker and Mr. Rollerson did not

have a description, they could reasonably suspect that the two men were the people

the perimeter had been established to contain. 7

Second, the evidence presented at the suppression hearing does not support a

reasonable inference that any attempt by Mr. Parker or Mr. Rollerson to flee when

the police dog approached evinced consciousness of guilt. The government

7 Detective Booher was not aware of anybody else “hiding around that area” or “stopped in that area.” 20

acknowledges that “simply fleeing an advancing dog is not suspicious.” See Mayo,

315 A.3d at 626 (“[T]he degree to which flight reasonably gives rise to an inference

of consciousness of guilt and thereby contributes to reasonable articulable suspicion

depends on context.”). However, any attempt at flight by Mr. Parker or Mr.

Rollerson is not necessary for reasonable suspicion. They were hiding in a backyard,

and it took a police dog to locate and flush them after they successfully eluded

detection for over an hour. Even if Mr. Parker and Mr. Rollerson had meekly stood

up after the police dog detected them, it would have been reasonable for the police

to suspect that they were the two robbers who had eluded capture until then. 8

To summarize: Mr. Parker and Mr. Rollerson were discovered shortly after 5

a.m. hiding in the darkness in a backyard, the backyard was inside a perimeter that

the police had established within two blocks of an armed robbery about ten minutes

after the robbery was committed, and the police found the two men not engaged in

innocent activity but ducked down behind shrubbery. In these circumstances, the

police had not a mere hunch but a reasonable suspicion that the men in the backyard

were the two suspects they were looking for. Reasonable suspicion requires less

8 Our dissenting colleague correctly points out that there is no evidence that the dog tracked to Mr. Parker’s location based on a crime-relevant scent. What led the dog to that spot, however, is not relevant to reasonable suspicion; the relevant fact is that when the dog found appellants, they were hiding in the backyard around 5 a.m. inside the police perimeter. 21

than probable cause, Mayo, 315 A.3d at 620, and even if the police had not ruled out

an innocent explanation for the men’s presence in the backyard, the police still had

a reasonable suspicion that they were the two elusive suspects. See Mitchell, 314

A.3d at 1151; Pridgen, 134 A.3d at 304 n.20; Umanzor, 803 A.2d at 993; Gomez,

597 A.2d at 890.

2. Reliable hearsay

Relying heavily on K.H., our dissenting colleague argues that we should

reverse because Detective Booher’s hearsay testimony was not reliable. K.H.

establishes that the government must establish that its witness’ hearsay testimony is

reliably based on someone else’s personal knowledge in order to support a finding

that police had the requisite basis for a seizure under the Fourth Amendment. See

14 A.3d at 1091-92.

As a threshold matter, we note that appellants did not make this reliability

argument in the trial court. In the trial court, their argument was that Detective

Booher’s lack of first-hand knowledge left him unable to provide key information

and that the general information he could provide did not suffice to establish

reasonable suspicion. Appellants’ stated problem was not with what Detective

Booher knew but with what he did not know, including (1) what the officers who

seized appellants knew at the time of the stop, (2) whether the police broadcast a 22

description of the suspects or what any description was, (3) the exact borders and

other details about the perimeter, (4) exactly where Mr. Rollerson was stopped, and

(5) facts relating to whether appellants’ flight evidenced a consciousness of guilt or

only fear of dogs. 9 However, appellants did not argue that Detective Booher’s

testimony was unreliable because he did not specify the source of his information or

demonstrate his information was ultimately based on first-hand knowledge. That

explains why the trial court did not make explicit findings on this issue.

“[W]e treat a claim as preserved for appeal so long as the judge is fairly

apprised as to the question on which she is being asked to rule.” Medhin v. United

States, 308 A.3d 1242, 1246 (D.C. 2024) (quotation omitted). “To preserve an issue

for appellate review, a party generally must raise the complained-of error in the trial

court in a manner that is specific enough to direct the judge’s attention to the correct

rule of law.” Evans v. United States, 304 A.3d 211, 219 (D.C. 2023) (quotation and

citation omitted). Appellants (and Mr. Ricks) did not fairly apprise the trial court of

9 The same is true of appellants’ arguments in the trial court concerning the show-up identifications by Ms. Eccles, which was the focus of their arguments. Appellants emphasized that Detective Booher did not know (1) how certain Ms. Eccles was about her identifications, (2) how far she was from appellants at the time she identified them, (3) what the lighting conditions were, (4) whether she could hear what was being said in the chatter on police radios at the time of the show-up, and (5) why police conducted a show-up rather than a line-up identification. In Section III below, we sustain the trial court’s denial of the motions to suppress these identifications. 23

any challenge to the reliability of Detective Booher’s testimony. None of the

arguments in the trial court quoted by the dissent raised the reliability issue with

reasonable specificity, or even hinted that Detective Booher’s testimony was so

unreliable that it should be stricken.

When a party raises on appeal an argument that it did not make in the trial

court, we ordinarily apply a plain error analysis. “Under plain error review, an

appellant must show that the objectionable action was (1) error, (2) that is plain, (3)

that affects the appellant’s substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Medhin, 308 A.3d

at 1247. Here, if the trial court erred in accepting as reliable Detective Booher’s

testimony about information reported or relayed to him, its error was not clear or

obvious. 10

10 Our dissenting colleague points out that the government’s appellate brief does not argue that plain error review applies to the trial court’s suppression ruling with respect to the reliability issue. However, the government had no reason to address this issue at all. Just as appellants did not raise this issue in the trial court, they did not raise this issue in their briefs in our court (which helps to explain why they do not cite K.H., the case our dissenting colleague interprets as dispositive). Contrary to the statement in the dissent, we do not misapprehend (seriously or otherwise) the argument in Mr. Parker’s briefs. As the portions of the briefs cited in the dissent indicate, appellants argued that the facts described by Detective Booher were insufficiently detailed and complete to establish reasonable suspicion, and they do not apply any word like “unreliable” or “untrustworthy” to his testimony. Ordinarily, we deem any point not urged on appeal to be waived. See Rose v. United 24

Although Detective Booher was not present at the scene, he testified that he

got his information from Detective O’Donnell and from police reports, including

Detective O’Donnell’s initial case resume and an MPD 163 form. Detective Booher

relied on information in the police reports about the discovery of appellants; it was

just after Detective Booher refreshed his recollection with Detective O’Donnell’s

initial case summary that he testified that when officers first spotted appellants, they

were ducked down behind shrubs in a backyard inside the police perimeter. A police

report stated that the police located appellants “hiding in the rear of” a specified

home. The defense lawyers did not challenge the reliability of Detective Booher’s

testimony based on information that could originally have come only from an officer

personally involved in appellants’ apprehension. Rather than give the trial court

reason to question the reliability of information in the police reports on which

Detective Booher relied, appellants endorsed the reliability of these reports. 11

Although appellants could have cross-examined Detective Booher about the original

States, 629 A.2d 526, 535 (D.C. 1993). We nevertheless address the reliability issue because our dissenting colleague does. 11 Although Detective Booher did not testify about this fact, defense counsel stated as a fact, based on discovery provided by the government, that information from the helicopter about movement inside the perimeter led to the stop. 25

source of his information about their apprehension in the backyard, they chose not

to do so. 12

Furthermore, Detective Booher’s testimony that the two men were ducked

down behind shrubs was not rebutted or even impeached. Our dissenting colleague

asserts that appellants “had no way to impeach Detective Booher,” but appellants

had the same impeachment options available to any party against whom hearsay

evidence has been admitted. Appellants could have challenged the credibility of

Detective Booher, Detective O’Donnell, or any other officer who completed the

police reports on which Detective Booher relied and which were available to them. 13

If any police report had contradicted or even failed to support any aspect of Detective

Booher’s testimony, appellants could have brought out that fact in cross-

examination. Detective Booher’s only source of information other than police

reports was Detective O’Donnell, and appellants could have called Detective

12 Mr. Ricks asked Detective Booher whether Detective O’Donnell saw Mr. Ricks attempt to flee or whether Detective O’Donnell obtained that information from another officer, and Detective Booher testified that Detective O’Donnell personally witnessed Mr. Ricks’s attempted flight. 13 Federal Rule of Evidence 806 permits the credibility of any declarant whose hearsay statement has been admitted in evidence to be attacked by any evidence that would be admissible if the declarant had testified as a witness. We also note that neither appellant testified at the pretrial hearing even though this testimony could not have been used against them at trial except in limited circumstances. See Simmons v. United States, 390 U.S. 377, 394 (1968). 26

O’Donnell (or any other officer present at the scene) as a witness if they had reason

to believe that his testimony would undermine Detective Booher’s. No evidence

suggested that Detective O’Donnell or another officer made up or inaccurately

reported the details recounted by Detective Booher in his testimony or included in

police reports (which helps to explain why appellants treated the reports as reliable).

Although not affirmative evidence of reliability, the lack of contrary evidence and

impeachment is relevant to whether the trial court could reasonably rely on Detective

Booher’s testimony when it found that the government had carried its burden to

justify the stops. 14

14 Our dissenting colleague cites the trial testimony of Officer Abraham Lazarus to raise a question about Detective Booher’s testimony that the two men were ducked down behind shrubs. Appellants did not ask the trial court to reconsider its suppression ruling after Officer Lazarus testified at trial, and we have not definitively resolved whether we can consider undisputed trial testimony only to uphold a pretrial ruling denying a motion to suppress or also to support a conclusion that the court erred in denying suppression. See Mayo, 315 A.3d at 623 n.8. We need not resolve that issue here because Officer Lazarus’ trial testimony is consistent with Detective Booher’s testimony at the pretrial hearing. Officer Lazarus was behind the detective who was behind the dog who found the suspects, so Officer Lazarus’ testimony does not establish that no police officer saw the suspects come out from behind the bushes when the dog approached them. Officer Lazarus testified that he “observe[d]” the dog dragging one of the defendants through “overgrown brush” or “brush and . . . briar” in the backyard.

Our dissenting colleague also states that it is “hard to trust” Detective Booher’s testimony that Mr. Ricks was stopped ten minutes after the robbery because the trial court found that the robbery was at 3:35 a.m. and Mr. Ricks was spotted “around 4 a.m.” Detective Booher testified that Mr. Ricks was stopped 27

In both the trial court and our court, appellants have not questioned the

reliability of Detective Booher’s testimony that, for example, the robbery occurred

around 3:37 a.m., the police arrived within minutes and established a perimeter,

officers stopped Mr. Ricks approximately ten minutes after the robbery, a K-9 dog

unit and a police helicopter joined in the search for the two remaining suspects, a

police dog found appellants inside the perimeter within two blocks of the robbery,

the police conducted a show-up identification, and Ms. Eccles identified appellants

about an hour and 45 minutes after the robbery. The reliability of Detective Booher’s

testimony that appellants were found hiding in the backyard bushes is no more

suspect than his testimony about any other aspect of the police investigation. On

this record, the trial court could reasonably conclude that Detective Booher’s

testimony about the stops was reliable.

To paraphrase Matlock, 415 U.S. at 175, “there is nothing in the record to raise

serious doubts about” Detective Booher’s testimony in general or specifically his

testimony that the police found appellants hiding behind bushes. At a minimum, the

“approximately” ten minutes after the robbery at “approximately” 3:48. Detective Booher’s testimony on this point was trustworthy because he spoke directly with Detective O’Donnell and Detective O’Donnell was present for the stop, and Detective Booher’s testimony and the trial court’s finding, each of which involves approximations of the time, are basically consistent. In any event, the evidence unquestionably establishes that Mr. Ricks was stopped soon after the robbery. 28

trial court’s reliance on his testimony does not rise to the level of plain error. See

Fleming v. United States, 923 A.2d 830, 835 (D.C. 2007) (the trial court did not

commit plain error in denying a suppression motion based on hearsay testimony of

a witness who was not evasive, who testified clearly, and who did not embellish or

change his testimony). 15

K.H. is consistent with our conclusion. The issue in K.H. was whether the

police had probable cause to enter an apartment to search for a suspect in an armed

robbery recently committed nearby. The only alleged basis for probable cause was

a statement by an occupant of the apartment allegedly overheard by officers. To

prove this statement at the pretrial hearing, the government called a detective who

was not present at the scene. “The detective could say only that it was his

‘understanding’ the officers entered apartment three because they overheard ‘some

talk [inside the apartment] about the police being outside’ and some ‘mention of

someone going to run or something like that.’” 14 A.3d at 1091. “[C]ritically,” the

detective “admittedly could not provide even a reasonably accurate account of what

the police professed to have heard.” Id. at 1092. In addition, the detective “never

15 Our dissenting colleague argues that the trial court’s error is plain because Detective Booher’s “I don’t know” answers to a number of questions “showcased” his lack of reliable firsthand, secondhand, or thirdhand knowledge. The detective’s candid admissions that he did not have information about some facts does not suggest that the factual information he did provide was unreliable. 29

identified the source (or sources) of his ‘understanding’; it is impossible to know

whether the detective spoke to anyone with personal knowledge of what the police

overheard or whether his account involved multiple levels of hearsay.” Id. at 1091-

92. But even if the detective had identified by name the officer on the scene who

overheard the statement (or indeed even if the officer who actually heard the alleged

statement had testified and provided the same description), the description of the

statement was too vague and uncertain to support a finding that the statement created

probable cause for a warrantless entry into a person’s home.

K.H. is distinguishable for two reasons. First, K.H. would be analogous if

Detective Booher had testified only that he had an understanding from a source he

did not identify that the police had set up a perimeter at some unspecified time after

an armed robbery, two men were found in a backyard inside the perimeter at some

unspecified time, and the two men were found near some shrubbery “or something

like that.” But Detective Booher’s testimony was far more specific than that. As we

explained above, he provided numerous details sufficient to establish reasonable

suspicion: three men committed an armed robbery around 3:30 a.m.; the police

arrived moments after the robbery and promptly set up a perimeter; within roughly

ten minutes after the crime, one of the three robbers was quickly apprehended; the

police continued searching for the other two suspects; and before 5:15 a.m., the

police found two people ducked behind shrubs in a dark backyard inside the 30

perimeter. Second, unlike the detective who testified in K.H., Detective Booher

identified the source of his information: Detective O’Donnell and police reports.

Detective Booher’s human source was not some random officer with some

unspecified involvement in the case, but rather the detective who arrived at the scene

shortly after the robbery and who was personally involved in both the apprehension

of the first suspect and the identifications of the appellants shortly after they were

apprehended. In addition, as we explained above, appellants treated the information

in the police reports as reliable.

The result in K.H. would have been different if the officer testified at the

hearing that he spoke to an officer on the search team who told him that he was

standing in the hallway when the officer heard an occupant of the apartment say

words to the effect that “the police are outside, they are probably looking for you,

and you better run.” The trial court in K.H. could reasonably rely on such testimony

even if the defense complained that they did not have any opportunity at the hearing

to test the knowledge or trustworthiness of the testifying officer’s source. This

scenario is more analogous to the facts in this case. Here, the trial court could

reasonably rely on Detective Booher’s testimony, based on specified written and oral

police sources, that the police found appellants hiding in a backyard inside the police

perimeter established shortly after the commission of an armed robbery by three

suspects, two of whom were still at large at the time of the stop. 31

For these reasons, it was not plainly erroneous or unreasonable for the trial

court to accept Detective Booher’s hearsay testimony as reliable.

III. Show-Up Identifications

The trial court found that Mr. Parker and Mr. Rollerson did not demonstrate

that the show-up identification procedure was unnecessarily suggestive, and that the

government established that Ms. Eccles’s out-of-court identifications were reliable.

These findings were supported by the evidence and in accordance with the law.

Detective Booher’s testimony at the suppression hearing established the

following facts. Police officers conducted a show-up identification procedure

shortly after Mr. Parker and Mr. Rollerson were apprehended about an hour and

forty-five minutes after the robbery. The police first did a show-up of Mr. Rollerson,

who was handcuffed and escorted by two police officers, and Ms. Eccles identified

him as the person who struck her with the shotgun. The police then followed the

same procedure with Mr. Parker, and Ms. Eccles positively identified him as a

participant in the robbery.

A. Legal Principles

To prevail on a motion to suppress an identification, a defendant must

“demonstrate that the identification procedure was ‘so impermissibly suggestive as 32

to give rise to a very substantial likelihood of irreparable misidentification.’” Kaliku

v. United States, 994 A.2d 765, 781 (D.C. 2010) (quoting Neil v. Biggers, 409 U.S.

188, 198 (1972)). “[I]f the procedure is found impermissibly suggestive, the

government may defeat the motion and save the identification by carrying the burden

of producing evidence to show that, under all the circumstances, the identification

was reliable nonetheless.” Diggs v. United States, 906 A.2d 290, 300 (D.C. 2006)

(quotation and citation omitted). In assessing the reliability of an identification,

relevant factors include (1) the witness’ opportunity to observe the perpetrator at the

time of the crime, (2) the degree of attention the witness paid to the perpetrator, (3)

the accuracy of any prior descriptions of the perpetrator provided by the witness, (4)

the level of certainty demonstrated by the witness at the time of the identification,

and (5) the lapse in time between the crime and the identification procedure. Id.

(citing Neil, 409 U.S. at 198).

Show-up identifications, in which the police show a single suspect in their

custody to a witness, are inherently suggestive. Long v. United States, 156 A.3d

698, 708 (D.C. 2017). Notwithstanding this inherent subjectivity, we have long

recognized “that a prompt show-up identification enhances reliability and serves a

purpose to exonerate an innocent person who has been mistakenly apprehended.”

Id. (quotation and citation omitted). Thus, a defendant seeking to establish

impermissible suggestivity in this context must show “[s]ome significant coercion 33

or intolerable suggestivity—i.e., something more egregious than mere custodial

status to prove the special elements of unfairness required to establish undue

suggestivity in a show-up identification.” Id. (quotation and citation omitted). “We

must examine [a] show-up identification in the totality of the circumstances.” Diggs,

906 A.2d at 300.

“This court is bound by the trial court’s findings on whether identification

procedures were impermissibly suggestive and whether an identification was

reliable if they are supported by the evidence and in accordance with the law.”

Howard v. United States, 954 A.2d 415, 423 (D.C. 2008) (quotation and citation

omitted).

B. Discussion

Mr. Parker and Mr. Rollerson argue that the show-up identifications were

unduly suggestive because they occurred an hour and forty-five minutes after the

robbery. As in Long, it was not “impermissibly suggestive for the police to conduct

the show-up procedure an hour and forty-five minutes after the robbery.” See 156

A.3d at 709. The delay was the result of the time it took for the police to discover

Mr. Parker and Mr. Rollerson hiding in a backyard. See United States v. Brown, 700

A.2d 760, 763 (D.C. 1997) (finding no undue suggestivity when the show-up was

delayed until approximately an hour after the incident because the suspects fled the 34

scene and led police on a chase). As in Long, the show-ups were “sufficiently

prompt to add to the reliability of the identifications.” See 156 A.3d at 709; see also

Lyons v. United States, 833 A.2d 481, 486 (D.C. 2003) (“Any potential for

suggestivity was outweighed by the promptness of the show-up, which took place

about one hour and fifteen minutes after the robbery.”).

Appellants argue the delay conveyed to Ms. Eccles that “she would not be

able to leave until she provided the police with the identifications they wanted,” and

that her “fatigue plus her observations of the police investigative efforts … primed

[Ms.] Eccles for a positive identification.” However, appellants do not cite evidence

Ms. Eccles was anxious to leave or felt pressured to make an identification.

Appellants also argue that “[t]he fact that [Ms. Eccles] saw [Mr.] Parker by an

ambulance with bloody wounds indicative of a recent altercation further exacerbated

the suggestivity of [his] custodial status to an intolerable level.” However, these

wounds from the police dog were inflicted after the robbery and outside Ms. Eccles’s

presence, and Mr. Parker’s condition did not affect any suggestivity of the show-up.

In any event, the trial court reasonably concluded based on the evidence that

notwithstanding any undue suggestivity of the show-ups, Ms. Eccles’s

identifications of Mr. Parker and Mr. Rollerson were reliable. Factors supporting

this finding include that Ms. Eccles had the opportunity to view Mr. Parker and Mr. 35

Rollerson for several minutes in a well-lit area, she gave specific descriptions of her

assailants’ clothing, hairstyles, complexion, and builds, and she was confident in her

identifications. The trial court’s findings were “supported by the evidence and in

accordance with the law.” See Howard, 954 A.2d at 423.

IV. Severance

The trial court did not abuse its discretion when it denied Mr. Parker’s and

Mr. Rollerson’s motions to sever their trials from Mr. Ricks’s.

When the trial judge denies motions for severance, “[w]e review the judge’s

rulings for abuse of discretion and will reverse only if [an appellant] shows he

suffered ‘manifest prejudice’ as a result of being tried jointly.” Hargraves v. United

States, 62 A.3d 107, 115 (D.C. 2013) (citation omitted).

Superior Court Rule of Criminal Procedure 8(b) provides that an indictment

can charge multiple defendants “if they are alleged to have participated in the same

act or transaction or in the same series of acts or transactions, constituting an offense

or offenses.” “We employ a strong policy favoring joinder because it expedites the

administration of justice in numerous ways.” Bost v. United States, 178 A.3d 1156,

1180 (D.C. 2018) (quotation and citation omitted). When justified under Rule 8(b), 36

joinder “serves to expedite the administration of justice, reduce congestion of trial

dockets, conserve judicial time, lessen the burdens upon citizens who must sacrifice

both time and money to serve as jurors, and avoid the necessity of recalling witnesses

who would otherwise be called upon to testify only once.” Jennings v. United States,

431 A.2d 552, 556 (D.C. 1981).

Rule 14(a) authorizes the Court to sever defendants if the joinder “appears to

prejudice a defendant or the government.” “[S]ince there is a strong presumption

when two or more defendants are charged with jointly committing a criminal offense

. . . that they will be tried together, a party seeking severance has the heavy burden

of showing the most compelling prejudice.” Bost, 178 A.3d at 1183-84 (quotation

and citation omitted); Medley v. United States, 104 A.3d 115, 122 (D.C. 2014).

“Some amount of prejudice will be permitted in favor of judicial economy and the

concomitant expedition of cases.” Bost, 178 A.3d at 1184 (quotation and citation

omitted). “[I]n order to show that the trial court abused its discretion in denying

severance, a defendant must show not merely prejudice, but manifest prejudice.”

Elliott v. United States, 633 A.2d 27, 34 (D.C. 1993) (quotation and citation

“Severance should be granted only where the evidence of a defendant’s

complicity in the overall criminal venture is de minimis when compared to the 37

evidence against his co-defendants, or when failure to do so would violate a

defendant’s right to due process and a fair trial, such as when co-defendants present

conflicting and irreconcilable defenses and there is a danger that the jury will

unjustifiably infer that this conflict alone demonstrates that both are guilty.” Bost,

178 A.3d at 1186-87 (quotation and citation omitted).

“It is well-settled that mutually antagonistic defenses are not prejudicial per

se, and the mere fact that co-defendants’ defenses are separate, distinct and

antagonistic and that each may have a better chance at acquittal if tried separately is

not sufficient for a grant of severance.” Hargraves, 62 A.3d at 115 (quotation and

citation omitted). Manifest “prejudice may not be established per se because two

defendants blame one another for the offense charged.” Roy v. United States, 871

A.2d 498, 503 (D.C. 2005). A difference in defense theories alone does not make

the defenses irreconcilable. See Harrison v. United States, 76 A.3d 826, 834 n.6

(D.C. 2013) (finding no irreconcilable defenses where one defendant claimed he was

not there, and the other claimed self-defense). Likewise, the “fact that counsel for

one defendant effectively acts as a ‘second prosecutor’ is generally insufficient to

constitute prejudice requiring severance.” Hawkins v. United States, 119 A.3d 687,

704 (D.C. 2015) (citation omitted). Instead, an appellant “must demonstrate that

there is a danger or risk that the jury will draw an improper conclusion from the 38

existence of the conflicting defenses alone that both defendants are guilty.” Dancy

v. United States, 745 A.2d 259, 266 (D.C. 2000) (quotation and citation omitted).

Mr. Parker and Mr. Rollerson do not dispute that the charges against them and

Mr. Ricks were properly joined in the indictment, and they do not demonstrate that

the trial court abused its discretion by concluding that they did not carry their heavy

burden of showing manifest prejudice. See Bost, 178 A.3d at 1183-84.

The mere fact that defendants had conflicting defenses and blamed each other

for the crime does not justify severance. See Hargraves, 62 A.3d at 115. The trial

court reasonably concluded that any conflict did not create a serious danger that the

jury would unjustifiably infer from this conflict alone that all of the defendants were

guilty. See Bost, 178 A.3d at 1186-87. Mr. Ricks was trying to persuade the jury

that he was not guilty, and he argued that even if the jury convicted his co-

defendants, it should acquit him. The jury could easily understand that Mr. Ricks’s

goal was not to persuade the jury to convict his co-defendants; under his argument

to the jury, it was in his interests for the jury to acquit his co-defendants because if

the jury had a reasonable doubt about their guilt, a fortiori the jury had to have a

reasonable doubt about his guilt. Moreover, the government’s evidence against each

appellant was substantial and far from de minimis. As the trial court explained, Ms. 39

Eccles positively identified Mr. Parker and Mr. Rollerson; their DNA and

fingerprints were in the car that Ms. Eccles’s companion testified the robbers drove

to the scene; and they were found together hiding inside the police perimeter.

Appellants argue that Mr. Ricks’s counsel elicited testimony and introduced

evidence of Mr. Parker’s and Mr. Rollerson’s guilt. However, this testimony and

evidence were cumulative. See Hargraves, 62 A.3d at 115 (finding that one

defendant’s testimony inconsistent with co-defendants’ defenses did not require

severance because the testimony was cumulative). Appellants claim that Mr.

Ricks’s lawyer “explicitly pointed the finger” at Mr. Parker and Mr. Rollerson,

telling the jury in his opening and closing argument that “they, not Mr. Ricks, were

guilty.” However, “the level of the antagonism in defenses is measured by the

evidence actually introduced at trial” and not by closing arguments. Dancy, 745

A.2d at 266 (quotation and citation omitted).

V. Management of Testimony

The trial court’s management of Ms. Eccles’s immunity issue and cross-

examination was not an abuse of its discretion. 40

A. Background

On Thursday, April 28, the prosecution conducted Ms. Eccles’s direct

examination. The defense had made clear that it would cross-examine Ms. Eccles

about her own criminal activity, and the trial court appointed counsel to advise her

with respect to Fifth Amendment issues and potential immunity. The government

offered letter immunity, but because her cross-examination might involve violations

of federal criminal law in jurisdictions other than the District of Columbia, Ms.

Eccles insisted on statutory immunity from a U.S. district court. In the afternoon

after Ms. Eccles’s direct testimony, the trial court and the parties discussed options,

and the trial court expected that the defense could cross-examine her on Monday,

which was the next trial day, after she obtained federal immunity. The court told the

jurors that they would not come in on Friday and that Ms. Eccles would return for

cross-examination on Monday, May 2.

On Monday morning, May 2, the prosecution informed the trial court that the

federal court had not yet granted the application for immunity for Ms. Eccles, and in

the meantime, the government called two witnesses, the second of whom was

Detective O’Donnell. During a break in Detective O’Donnell’s testimony, the

government tendered a signed immunity order for Ms. Eccles. With no objection

from the defense, Detective O’Donnell’s direct examination resumed after the break. 41

On Tuesday May 3, Mr. Parker and Mr. Rollerson asked to cross-examine Ms.

Eccles before they cross-examined Detective O’Donnell. The trial court denied the

request, concerned that it would create more problems for the jury than it would

solve. The defense cross-examined Detective O’Donnell for the remainder of that

day. When it excused the jury at the end of the day, the trial court explained to the

jurors that trial would resume on Tuesday, May 10 because of scheduling issues.

On Tuesday, May 10, trial resumed, and the defense thoroughly cross-

examined Ms. Eccles.

Mr. Parker and Mr. Rollerson do not show that the trial court abused its

discretion in managing Ms. Eccles’s direct and cross-examination.

“[T]he trial judge ‘may determine generally the order in which parties will

adduce proof [and that] determination will be reviewed only for abuse of

discretion.’” Hargraves, 62 A.3d 118 (quoting Geders v. United States, 425 U.S.

80, 86 (1976)). In order to show an abuse of discretion, an appellant must

demonstrate that he has been prejudiced. Johnson v. District of Columbia, 655 A.2d

316, 318 (D.C. 1995). 42

Appellants complain that the trial court should have gotten, before Ms. Eccles

testified, a proffer about whether her privilege might impede its intended cross-

examination. However, the trial court had enough information to know that

immunity would facilitate the cross-examination, and it reasonably expected the

immunity issue to be resolved promptly so that the defense could start its cross-

examination on the next trial day. Ms. Eccles had immunity when the defense cross-

examined her, so her privilege did not impede the actual cross-examination, and

appellants conducted a robust cross-examination, including exploring possible bias

relating to her immunity. Appellants argue that they should have had more

information about the status of Ms. Eccles’s immunity before her testimony began,

but here again, they do not show any prejudice to their cross-examination: any Fifth

Amendment privilege during her direct testimony only limited the testimony that the

government could elicit; and the defense had free rein in its cross-examination.

Appellants claim that the lengthy and unexpected delay between Ms. Eccles’s

direct and cross-examination prejudiced them because the jury had only her narrative

for two weeks, during which it heard from witnesses who bolstered that narrative.

However, contrary to their assertion the sequence of events deprived them of “a key

opportunity to highlight witness credibility issues to the jury,” appellants were able

to mount a vigorous attack on Ms. Eccles’s credibility. The trial court did not abuse

its discretion in concluding that it made more sense to complete the cross- 43

examination of Detective O’Donnell on May 3 than to start Ms. Eccles’s cross-

examination. Although 12 calendar days intervened between the direct and cross,

only two trial days intervened, so the amount of intervening testimony was limited.

In these circumstances, the trial court reasonably concluded that the delay in Ms.

Eccles’s cross-examination would not materially impair its effectiveness with the

jury.

For these reasons, Mr. Parker and Mr. Rollerson have not established that the

trial court abused its discretion in managing Ms. Eccles’s testimony.

VI. Response to the Jury Note

Mr. Rollerson contends that he was prejudiced by the trial court’s response to

a jury note. When the jury sent a note concerning the AWIK charge against Mr.

Ricks, the trial court did not abuse its discretion by denying Mr. Rollerson’s request

to give an instruction relating to the robbery charge and by giving instead a response

that directly answered the jury’s question. It follows that the trial court did not abuse

its discretion by denying his motion for a mistrial.

A. The Jury’s Note

At the close of the trial, the trial court instructed the jury on the armed robbery

charge, including explaining the aiding and abetting theory applicable to Mr. Parker 44

and Mr. Rollerson. The trial court also instructed the jury on the AWIK charge

against Mr. Ricks only. The trial court specified that each count of the indictment

charged a separate offense, and the jury should consider each offense, and the

evidence which applies to it, separately.

On the first day of deliberations, the jury sent a note indicating that it could

not reach a verdict on some of the charges. The trial court responded that the jury

had only been deliberating for a few hours and asked them to continue deliberations.

On the second day of deliberations, the jury sent a note asking (1) whether it

could convict Mr. Ricks of AWIK on an aiding and abetting theory, if it was

convinced that there was a gunman, but not sure whether the gunman was Mr. Ricks

and Mr. Rollerson, and (2) whether they could convict Mr. Ricks of AWIK only if

they believed he was the gunman. The trial court discussed the notes with the parties.

Mr. Rollerson asked the court to re-instruct the jury that it could convict him of

armed robbery only if it unanimously found that “Mr. Rollerson and/or Mr. Parker

knew Mr. Ricks possessed the gun and that they aided and abetted Mr. Ricks in the

robbery.” The court rejected Mr. Rollerson’s proposed instruction. Instead, the trial

court gave the jury the following instruction:

The answer to [the first] question is no. You may not find Mr. Ricks guilty of [AWIK] based on an aiding and abetting theory…. The answer to question two is the following: [t]o find the defendant, [Mr.] Ricks guilty of 45

assault with intent to kill you must find that each element of that offense is satisfied with respect to him beyond a reasonable doubt. And I will refer you back to the assault with intent to kill instruction, which is 4.111.

Mr. Rollerson moved for a mistrial on the ground that the two notes indicated

that the jury was basing its deliberations on facts not in evidence. The court denied

the motion, reasoning that the first note “just indicated that they were at an impasse,”

and the second note showed that “[t]hey’re actually evaluating the evidence and

trying to figure out how to apply the instructions that they were given.”

“The decision on what further instructions, if any, to give in response to a jury

question lies within the sound discretion of the trial court.” Yelverton v. United

States, 904 A.2d 383, 387 (D.C. 2006) (quotation and citation omitted). Absent an

abuse of discretion, we will not reverse the trial court’s decision on appeal.

Alcindore v. United States, 818 A.2d 152, 155 (D.C. 2003). “When the jury explains

specific difficulties, the trial court should clear them away with concrete accuracy.”

Id. (quotation and citation omitted). “When a jury sends a note which demonstrates

that it is confused, the trial court must not allow that confusion to persist; it must

respond appropriately.” Id. “And we have recognized that telling jurors to refer

back to their original charge may be appropriate in some circumstances where the

initial instructions accurately and thoroughly provided elements and definitions of 46

the crimes charged.” Parker v. United States, 249 A.3d 388, 399 (D.C. 2021)

The trial court did not abuse its discretion in responding to the jury’s note or

in denying Mr. Rollerson’s motion for a mistrial.

Based on the jury’s note about the AWIK charge against Mr. Ricks, Mr.

Rollerson infers that the jury was operating “on the speculative theory that he was

the gunman,” and he argues that the trial court did “nothing to clear up the [jury’s]

underlying confusion.” However, the trial court reasonably interpreted the jury’s

note to indicate only that the evidence about Ms. Eccles’s descriptions of the robbers

might leave it with a reasonable doubt that Mr. Ricks was the gunman—not that it

proved beyond a reasonable doubt that Mr. Rollerson was the gunman. Such a

reasonable doubt about Mr. Ricks could have arisen because Mr. Rollerson’s

hairstyle was consistent with Ms. Eccles’s description of the gunman, and Mr. Rick’s

hairstyle was consistent with Ms. Eccles’s description of a different suspect. The

jury was simply asking whether it could convict Mr. Ricks of AWIK on an aiding

and abetting theory if it had a reasonable doubt that he was the gunman. Mr.

Rollerson did not offer any reason to believe that the jury was thinking of convicting 47

him of AWIK—a crime with which he was not charged at all, either as a principal

or an aider and abettor.

Accordingly, the trial court reasonably concluded that the jury was “actually

evaluating the evidence and trying to figure out how to apply the instructions that

they were given.” The trial court’s response directly and clearly answered the

question that the jury actually asked: the jury could not convict Mr. Ricks of AWIK

on an aiding and abetting theory if it was not sure that he was the gunman. Equally

forthright was the trial court’s response to the second question, which reasonably

referred the jury back to the AWIK instruction, which stated that it could convict

Mr. Ricks of AWIK only if it found that he was armed with a firearm. See Parker,

249 A.3d at 399. These answers did not prejudice Mr. Rollerson.

In this context, the trial court reasonably concluded that it need not give Mr.

Rollerson’s proposed instruction about the robbery charge—that the jury could find

him (and/or Mr. Parker) guilty of armed robbery only if he knew that Mr. Ricks had

a gun and aided and abetted Mr. Ricks. The trial court reasonably understood,

consistent with its plain language, that the jury’s note related only to the AWIK

charge against Mr. Ricks, and that it did not need to repeat or elaborate on its

previous, and clear, instructions on armed robbery, including the aiding and abetting

theory. Mr. Rollerson does not dispute that the jury was properly instructed on 48

aiding and abetting armed robbery, or that the evidence was sufficient to support the

conviction on that basis.

Finally, Mr. Rollerson argues that the trial court erred in denying his motion

for a mistrial. “A mistrial is a severe remedy – a step to be avoided whenever

possible, and one to be taken only in circumstances manifesting a necessity

therefor.” Salmon v. United States, 719 A.2d 949, 956 (D.C. 1997). Therefore, “we

will reverse the denial of a motion for a mistrial only if the decision appears

irrational, unreasonable, or so extreme that failure to reverse would result in a

miscarriage of justice.” Id. (quotation and citation omitted). The trial court was

neither irrational, nor unreasonable, nor extreme when it concluded that the jury’s

note did not mean that it was thinking about convicting Mr. Rollerson as the gunman.

VII. Conclusion

For these reasons, we affirm the judgment of the Superior Court.

So ordered.

BECKWITH, Associate Judge, dissenting: The government’s only evidence in

support of reasonable articulable suspicion for the seizure of Deangelo Parker and

Delonta Rollerson was the testimony of a detective, Darin Booher, who played no

role at the crime scene—instead recounting hearsay of another detective, Thomas 49

O’Donnell, who himself was not present for the seizure, when a police dog bit and

dragged Mr. Parker by his head and officers apprehended the two men. What

Detective O’Donnell told Detective Booher about that seizure appeared to rely on

somebody else’s account. Yet by the end of the hearing, the record was devoid of

evidence as to (1) how many layers of hearsay Detective Booher’s testimony

entailed; (2) whether Detective O’Donnell’s source or sources had personal

knowledge about the details of the seizure; (3) the identities of any source who did

have personal knowledge about the seizure; or (4) whether Detective Booher’s

account encompassed all the details about the seizure—and about Mr. Parker and

Mr. Rollerson’s behavior and comments upon being seized—that the original

sources might have testified to had they been called. It was also devoid of any

finding by the trial court that Detective Booher’s testimony about the seizure

originated from someone who witnessed it.

To be sure, our cases do not preclude the government from offering such an

unusually truncated and potentially incomplete version of the facts of a seizure based

on double (or triple or quadruple) hearsay without evidence of the identity of anyone

with personal knowledge. Hearsay is generally allowed at pretrial hearings on the

admissibility of evidence, including suppression hearings. See United States v.

Matlock, 415 U.S. 164, 172-76 (1974); Fleming v. United States, 923 A.2d 830, 835

(D.C. 2007). 50

But the fact that evidence is admissible at a suppression hearing does not mean

it is sufficient to justify a search or seizure in the absence of an identified source

with personal knowledge. In that regard, there is a case on point to guide our

analysis. In In re K.H., 14 A.3d 1087, 1091 (D.C. 2011), the government attempted

to establish the legality of police officers’ warrantless entry into an apartment to

arrest a robbery suspect through testimony of an officer who “had no personal

knowledge of the circumstances giving rise to the entry.” Id. at 1089. Basing his

testimony “on information he had acquired from other police officers whom he did

not identify,” the officer testified that police knew from the victim that the suspect

had fled to one of four apartments and that his “understanding” was that police had

overheard voices coming from the apartment they chose to enter. Id. “As far as the

detective knew, ‘[t]here was some talk about the police being outside’ and ‘[t]here

was mention of someone going to run or something like that,’ ‘[s]omething about

running,’” and that police “were allowed in” and “didn’t force their way in.” Id.

In unanimously reversing denial of the suppression motion, the division in

K.H. focused in part on the testifying officer’s inability to establish the personal

knowledge and trustworthiness of the original source. “Instead of offering the

testimony of one of the officers who entered apartment three in pursuit of the fleeing

robber,” the court said, the government “relied exclusively on the hearsay testimony

of Detective Thompson, a witness who possessed no personal knowledge of the 51

entry.” Id. at 1091. The court noted that “[t]rustworthy hearsay is admissible in a

suppression hearing and may justify a finding of probable cause,” but concluded that

“Detective Thompson's testimony was, on the essential point, too unreliable and

uncertain to support such a finding.” Id. Detective Thompson “could say only that

it was his ‘understanding’ the officers entered apartment three because they

overheard ‘some talk about police being outside’ and some ‘mention of someone

going to run or something like that.’” Id. In the court’s view, Detective Thompson’s

testimony contained “glaring” “deficiencies,” including that he “never identified the

source (or sources) of his ‘understanding’” and that “it [was] impossible to know

whether the detective spoke to anyone with personal knowledge of what the police

overheard or whether his account involved multiple levels of hearsay.” Id. at 1091-

92. “Without such knowledge,” the court said, “one cannot reasonably conclude that

the detective’s ‘understanding’ of what the police heard was reliable.” Id. at 1092.

The facts here are even plainer than in K.H. in the sense that, instead of it

being “impossible to know,” we know for certain that the testifying officer’s source

did not have personal knowledge about the seizure. Detective O’Donnell was not

present when police seized Mr. Parker and Mr. Rollerson. Detective Booher also

did not speak to any other officers who were at the scene, had not reviewed the police

radio broadcasts from that night, and did not know what the responding officers had

broadcast over the radio. When defense counsel asked him questions about the 52

circumstances leading up to and surrounding the seizures of Mr. Parker and Mr.

Rollerson, he was unable to answer a large number of them. See e.g., Suppression

Hr’g Tr. 275, Apr. 20, 2016 (“I’m not sure.”); id. at 291 (“I don’t know that.”); id.

at 292 (prosecutor stating, “He doesn’t know”); id. at 293 (“Again, I don’t know.”);

id. at 295 (“I don’t know” and “I don’t know that either.”); id. at 296 (“I don’t know”

and “I don’t know that for sure.”); id. at 305 (“I don’t know.”); id. at 306 (“[A]gain,

I don’t know[.]”); id. at 308 (“I don’t know.”); id. at 310 (“I don’t know[.]”); id. at

314 (“I don’t know.”); id. at 323 (“I don’t know . . . I do not know . . . I don’t know

that either.”).

If, in fact, a dog tracked to the suspects’ position where they were attempting

to hide in someone else’s backyard around 5 a.m. within a perimeter that had been

set up within ten minutes and maintained for more than ninety minutes after a

robbery, police here may have had reasonable articulable suspicion for a Terry stop.

But the bulk of the assumptions comprising this narrative have no reliable basis.

Instead, nearly all of the assumptions my colleagues in the majority invoke to justify

the seizure and to distinguish K.H. are the same assumptions that we cannot say are

more likely than not to be true, given the multiple layers of hearsay, the lack of

personal knowledge of at least two of the declarants in the hearsay chain, the failure

to identify a reliable source with personal knowledge, and the possibility that the

account given by Detective Booher, even if accurate as far as it goes, leaves out 53

critical details about the seizure that are relevant to its validity. In light of these

circumstances—and the holding of K.H.—I respectfully dissent from the court’s

affirmance of the denial of the defendants’ suppression motions.

The Majority’s Seizure Analysis

To its credit, the majority acknowledges that the evidence did not support

several factors the trial court relied on in finding reasonable articulable suspicion.

These include the court’s findings that officers who seized Mr. Parker and Mr.

Rollerson had a basic description of the two suspects, that the perimeter the police

purportedly set up was secure, and that the suspects’ attempt to flee from a dog

evinced consciousness of guilt. Ante at 15, 18-20. My colleagues nonetheless go on

to conclude that police had reasonable suspicion to believe that Mr. Parker and Mr.

Rollerson were the people they were looking for based on four main factors: (1)

police discovered them in the backyard of a house at a time—a little after 5 a.m.—

that is “hardly an hour when people are ubiquitous in our city’s backyards,” (2) the

suspects were not behaving innocently but were “hiding by shrubbery,” indicating

consciousness of guilt; (3) the men were found in a “police perimeter”; and (4) the

perimeter was established minutes after the robbery occurred, so when the men were

found an hour and forty-five minutes after the robbery, it was reasonable to infer that

they had been hiding in a backyard inside that perimeter all along, arousing more 54

suspicion. Ante at 13-20. With respect to each of these factors, the majority’s

reasoning rests on factual assumptions that take as a given the reliability and

completeness of the multiple hearsay account eventually recited—at least partially—

by Detective Booher. The main problem with this is that the facts relied on were not

proven by a preponderance through evidence shown to be reliable, complete, and

based on personal knowledge.

This claim, the majority holds, is subject to review only for plain error because

“appellants did not make this reliability argument in the trial court.” Ante at 21.

According to my colleagues, Mr. Parker and Mr. Rollerson failed to preserve this

argument for appellate review because they neglected to explicitly indicate that

Detective Booher “did not specify the source of his information or demonstrate his

information was ultimately based on first-hand knowledge.” Ante at 22. The

government’s brief does not argue that plain error review applies to the trial court’s

suppression ruling. 1

1 The majority’s contention that the government had no reason to raise plain error because appellants’ own briefs did not challenge the reliability of Detective Booher’s hearsay testimony seriously misapprehends the arguments presented in Mr. Parker’s brief and adopted by Mr. Rollerson. As a threshold matter, in evaluating a trial court’s denial of a suppression motion, this court considers the “totality of ‘the facts available to the officer at the moment of the seizure’” “to determine whether the government proved that a defendant's constitutional rights were not violated.” Mayo v. United States, 315 A.3d 606, 617, 620 (D.C. 2024) (en 55

At the outset, regardless of appellants’ level of precision in objecting to

Detective Booher’s failure to identify the source of his information about the seizure

and to show its firsthand origin, parties “can make any argument in support of [a]

claim”—here, the claim that the government failed to prove that police had

reasonable suspicion to seize them—and “parties are not limited to the precise

arguments they made below.” See Yee v. City of Escondido, 503 U.S. 519, 534

banc) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). Put differently, “our role as an appellate court is to ensure that the trial court had a substantial basis for concluding” that no constitutional violation occurred.” Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007). Even a somewhat generic challenge to a trial court’s finding of reasonable suspicion therefore triggers our assessment of the quality and nature of the evidence before the trial court. But Mr. Parker’s briefing goes beyond the conventional argument that the facts as found by the trial court did not provide reasonable suspicion. He does make that argument, but he also highlights Detective Booher’s lack of personal knowledge, details the weaknesses in his “unsubstantiated” testimony, and challenges the government’s reliance upon trial testimony to fill those gaps. See Parker Br. 43-44; id. at 8 (stating that “the government’s only witness, Detective Darin Booher, had no firsthand information about what occurred”); id. at 12 (referring to appellants’ “objections that the government could not meet its burden solely through Booher’s insufficiently- detailed hearsay testimony”); id. at 44 (noting that “no evidence was introduced at trial that police saw Parker or Rollerson at all, much less behind shrubs,” before the seizure); id. (arguing that the trial court “relied on facts unsupported by the evidence”); id. at 43 (identifying facts that Detective Booher was “uncertain about” or “did not know”); Reply Br. 13-15; id. at 13 (noting that Detective Booher did not testify that K-9 warnings were given “because he did not know”); id. at 15 (noting that Detective Booher was unsure when or whether a lookout was broadcast); id. (noting that Booher’s testimony “did not establish that the police knew Parker was hiding in bushes”). Mr. Parker’s appellate arguments are one and the same as an attack upon the reliability of the government’s sole witness and plainly trigger our review of the reliability of the testimony upon which the trial court’s reasonable suspicion finding relied. 56

(1992); Jones v. United States, 990 A.2d 970, 981 n.34 (D.C. 2010) (distinguishing

between “new legal arguments on appeal to support a claim made below” and “an

entirely new factual claim”); see also Benn v. United States, 801 A.2d 132, 140 n.7

(D.C. 2002).

Even if such specificity were required, appellants’ wide-ranging objections—

which the trial court never addressed or even acknowledged—unmistakably

conveyed the argument that for reasons akin to those in play in K.H., Detective

Booher’s testimony was not sufficiently reliable to support reasonable suspicion.

Counsel for Maurice Ricks, for example (the third codefendant who is not a

participant in this appeal), acknowledged the potential relevance of hearsay at a

suppression hearing, but said “the government needs to take this a little more

seriously than putting up a witness who has read a report or had a conversation,”

particularly “given the severity of these charges.” Mr. Ricks’s counsel emphasized

the peculiarity of a suppression hearing in which the government’s only witness

“truly . . . knows nothing about the case” and “had no role at all in any individual

part of the stop, the detention or identification procedure.” He likened the

proceeding to “litigating Fourth Amendment issues based on a police report,” except

that here, a police report would have been more informative and “more detailed than

what detective Booher knew.” “Essentially the government has given the Court a

record that is completely lacking in all detail that we would need to reasonably 57

address these issues.”

Along these same lines, Mr. Rollerson’s counsel pointed out that, after

hearing Detective Booher’s testimony, “We don’t know how big the perimeter

was. . . . We don’t know where [Mr. Rollerson] . . . came from. We don’t know

what street he was stopped at, what side of the property he came out of.” He

attributed these lingering questions to Detective Booher’s lack of personal

knowledge of the underlying seizure and asked the court to “overlook” the

detective’s testimony, noting that “the government got to elect what witnesses that

they chose to put on” and decided to call a witness who could not answer basic

questions about the seizure.

Mr. Parker’s counsel likewise acknowledged that “hearsay is certainly

allowed,” but said that “in this particular case . . . we wanted to explore what was

going on that night . . . we couldn’t get any information.” He found it

quite interesting that we have this particular police officer who has no knowledge whatsoever of the events that evening as the person who testified. The point of cross- examination is to get to the truth. It’s incredibly difficult to get to the truth to actually probe these issues as to see, really, what was going on, what really happened that day when you have somebody who has only heard bits and pieces.

Counsel argued that, because Detective Booher could not say “what really happened 58

that day,” his testimony could not establish that the officers had reasonable suspicion

to stop the men.

Contrary to the majority’s view, Mr. Parker and Mr. Rollerson preserved this

challenge to the reliability of the detective’s hearsay testimony. In asking the court

to “overlook” Detective Booher’s testimony, counsel was suggesting that the judge

give it no weight—perhaps even strike it. 2 The codefendants did not cite K.H., but

they echoed its central point that hearsay testimony that contains stark deficiencies

and lacks indications that it comes from a source with personal knowledge can be

insufficiently reliable to support a finding of probable cause or reasonable suspicion.

Their complaints—that Detective Booher’s surprising lack of knowledge about the

case prevented them from getting at what really happened and that permitting

hearsay had to mean more than “putting up a witness who has read a report or had a

conversation”—were objections to the overall reliability of the detective’s

information bearing on the Fourth Amendment challenge to the men’s seizure. 3 My

2 In ruling on the motion to suppress, the trial court stated that “the things I’m saying”—referring to its findings—“obviously, are being credited.” Suppression Hr’g Tr. 4, Apr. 21, 2016. The court did not get into detail about what weight it was affording Detective Booher’s testimony and why. 3 It is worth noting that in K.H. itself, the government argued on appeal that K.H. did not object to hearsay at the suppression hearing. K.H. also apparently did not ask the police witness at the suppression hearing the identity of his source and whether that person had personal knowledge. He instead posed objections similar 59

colleagues say the codefendants’ problem with Detective Booher’s testimony “was

not with what [he] knew but with what he did not know.” Ante at 21. The point,

though, is that the detective’s testimony about what he “knew,” such as that the

appellants were hiding before they were seized, was unreliable because of what he

did not know—that is, because it was not based on personal knowledge. 4

Relatedly, my colleagues in the majority are disinclined to question the

reliability of Detective Booher’s testimony in part because it was “not rebutted or

even impeached.” Ante at 25. Besides discounting the fact that the government

bears the burden of proof, this also disregards the defendants’ persistent complaints

to the trial court about their inability to test the accuracy of Detective Booher’s

claims because of the multiple layers of hearsay. As defense counsel made clear in

their objections at the suppression hearing, they had no way to impeach Detective

Booher and “get to the truth” of “what really happened that day” when Detective

to the codefendants’ objections here, stating, for example, that “[t]he testimony of Detective Thompson was a lot of [‘]my understanding is this,[’], [‘]my understanding is that.[’] He didn’t really know, he wasn’t there when this search of the building occurred. And he’s not really sure what was said.” 4 Even if plain error applies, this is plain error. Detective Booher showcased his lack of reliable firsthand (or secondhand or thirdhand) knowledge by, among other things, answering “I don’t know” to dozens of questions, providing clear grounds for the trial court to determine that the government failed to present sufficiently reliable evidence of reasonable suspicion. See supra p. 51. 60

Booher was not present at the event he was describing and had “only heard bits and

pieces” from another person who also lacked personal knowledge of the seizure.

“Cross-examination ‘is the principal means by which the believability of a witness

and the truth of his testimony are tested,’” Coles v. United States, 36 A.3d 352, 356

(D.C. 2012), but Detective Booher’s unfortunate distance from the event about

which he was testifying made it all but impossible to nail down and scrutinize his

account. Crawford v. Washington, 541 U.S. 36, 61-62 (2004) (stating that “testing

in the crucible of cross-examination” is “how reliability can best be determined”);

cf. Florida v. J.L., 529 U.S. 266, 270-71 (2000) (holding that anonymous tip lacked

“sufficient indicia of reliability” because police could not test “informant’s

knowledge or credibility” (quoting Alabama v. White, 496 U.S. 325, 327 (1990))).

The more relevant declarant or declarants were, as in K.H., unknown.

In short, the majority’s analysis rests on both a mistaken belief in the

reliability of Detective Booher’s factual assumptions about the circumstances

surrounding the seizure and a mistaken view that the lack of specific impeachment

and rebuttal of Detective Booher’s claims somehow bolsters their reliability. As to

the factors the majority most relies on, this is borne out in different ways.

The Early Hour When the Dog “Tracked” to a Residential Backyard

As an initial matter, I am skeptical of my colleagues’ view that shortly after 61

five in the morning, when some early birds might well be taking out the trash,

heading out for a run, or walking their dog, “one would not expect to see people

engaged in innocent activity in a backyard.” Ante at 13-14. It is “common sense,”

according to my colleagues, “to suspect that two people at this hour in this location

in these circumstances are not there for an innocent reason.” Id. at 14. The majority

points to Funderburk v. United States, 260 A.3d 652, 659 (D.C. 2021), see ante at

13, but Mr. Funderburk’s presence in a deserted alley at 2:20 a.m. on a December

weeknight thirty seconds after officers heard gunshots coming from the very same

alley is markedly more conspicuous than the presence of two people in a residential

backyard not long before daybreak nearly two hours after a robbery happened two

blocks away. Funderburk, 260 A.3d at 659. The majority also cites Umanzor v.

United States, 803 A.2d 983, 989, 994 (D.C. 2002), see ante at 14, but the stop in

that case, as in Funderburk, took place much earlier in the morning and the police

had a lookout description that at least matched the “make, model and, at first glance,

color” of the car they stopped. Here, there was no evidence that the police who

stopped Mr. Parker and Mr. Rollerson had any description of them at all.

With respect to location, Detective Booher did not know the address at which

Mr. Parker and Mr. Rollerson were apprehended, except that it was in a backyard.

He testified at various points that he “guess[ed]” that it was a block from the alleged

robbery, that he couldn’t remember if he was informed that it was “two blocks or 62

just a block,” that he “believe[d] it was within a two block radius,” and that he

“kn[e]w it was within that two block radius.” And while he said that no one told

him that anybody else was “hiding around that area” or “stopped in that area,” he

did not say that anyone specifically told him there were not other people around.

Similarly, though the majority uses the word “tracked” in its description of

Detective Booher’s testimony about the role of the K-9 dog in the search for Mr.

Parker and Mr. Rollerson, see ante at 8, it acknowledges that there is no evidence

that the dog “tracked” to Mr. Parker’s location based on a crime-relevant scent. On

the contrary, Detective Booher’s use of the term “tracked” conveys only that the

police and the dog ended up at the same place as the suspects, and the dog’s presence

at the scene of the seizure is not a fact tending to justify the seizure.

The Suspects’ “Hiding by Shrubbery” in Someone Else’s Backyard

According to my colleagues in the majority, it was particularly suspicious that

Mr. Parker and Mr. Rollerson were hiding when police first spotted them—that is,

that “[t]hey were ducked down behind home [sic] shrubs in the back yard of a

residence that was contained within [the] rectangle” encompassed by James Place,

Hunt Avenue, 55th Street, and Eastern Avenue. The majority also infers, from the

lack of evidence that the suspects were engaged in innocent behavior, that the police

could have reasonably concluded at the time that Mr. Parker and Mr. Rollerson 63

“were the two suspects they were looking for.” Ante at 20. Both of these

assumptions are purely speculative and not established by the government’s

evidence at the hearing.

First, the record does not contain a reliable basis for the trial court’s finding

that the suspects were hiding in the bushes. The trial court heard no evidence from

any source with personal knowledge about whether the suspects were “hiding” when

found by police. In fact, while not necessary to the analysis of the sufficiency of the

suppression hearing record, it is worth noting that the only witness with actual

personal knowledge of the seizure, Officer Abraham Lazarus, testified later at trial

that he did not see what the men were doing before they were seized and that he first

saw the men when Mr. Parker was being dragged by the already-released dog. See

Trial Tr. 266-67, May 11, 2016 (“I only saw when the dog was pulling the one

suspect out in between the fences”); id. at 272 (answering “I don’t know” to the

question, “What position was the defendant in when the dog made contact with

him?”); id. at 286-87 (agreeing that he did not see Mr. Parker flee and that when he

first saw Mr. Parker he “was clearly injured by the dog”). Detective Booher’s

suppression hearing testimony could not reliably establish that the men were hiding

because his source, Detective O’Donnell, was not present at all, Detective

O’Donnell’s own source was unidentified, and even the officer with firsthand

knowledge who testified at trial did not and could not fairly describe what Mr. Parker 64

and Mr. Rollerson were doing before the dog bit Mr. Parker because he did not see

them. Detective Booher also could not clarify key details of the officers’ actions in

the events leading up to the seizure. He was unable to say, for example, that the

police warned the men before releasing the dog to apprehend them.

Given the lack of sound information about whether and how the men were

hiding, this consideration contributes nothing to a finding of reasonable suspicion.

More specifically, it does not constitute trustworthy hearsay under K.H., where we

held that the testimony of the government’s hearsay witness (a detective who arrived

on the scene after the events relevant to the hearing and did not identify the source

of his testimony) at a suppression hearing was “unreliable and uncertain” and could

not support the trial court’s finding that police had probable cause to enter an

apartment in search of a suspect. 14 A.3d at 1088, 1091.

The majority’s attempt to distinguish K.H. falls short. See ante at 29-30.

Among other things, my colleagues state that unlike in K.H., where “the testifying

witness could not provide even a reasonably accurate account” of what words

officers heard coming from inside the apartment before they entered, “Detective

Booher’s testimony was far more specific” and “provided numerous details.” See

ante at 29. On the contrary, Detective Booher’s testimony was largely devoid of

details about the facts most central to reasonable suspicion. Further, where in K.H., 65

it was “impossible to know” whether the officer’s account “involved multiple levels

of hearsay,” here we know for sure that whatever details about the seizure Detective

Booher gleaned from Detective O’Donnell were in fact the product of multiple levels

of hearsay. See K.H., 14 A.3d at 1091-92. This explains why even in relaying

“details” to Detective Booher, Detective O’Donnell was so tentative, further

detracting from his own reliability and the reliability of whoever his source was. 5

This court reversed the denial of the suppression motion in K.H. because there

was no way to evaluate the reliability of the police witness’s testimony about critical

facts relevant to the existence of probable cause. K.H., 14 A.3d at 1091-92. The

same is true here.

Perhaps recognizing the dearth of reliable evidence that the suspects were

hiding, the majority nonetheless states that the trial court “could reasonably conclude

that Detective Booher’s testimony about the stops was reliable” because his “human

source was not some random officer with some unspecified involvement in the case,

but rather the detective who . . . was personally involved,” ante at 27, 30. But there

is no cause for reassurance that Detective Booher’s information came from someone

5 Detective Booher testified, for example, that he remembered “detective O’Donnell specifying that [Mr. Rollerson] tried to jump over a fence and either got tripped up or was apprehended immediately on the other side of the fence.” Suppression Hr’g Tr. 327, Apr. 20, 2016 (emphasis added). 66

with personal knowledge about the seizure. The opposite is true. Detective Booher

specifically named Detective O’Donnell as the source of various details about the

seizure. He said, for example, that he “remember[ed] Detective O’Donnell

specifying” that Mr. Rollerson “tried to jump over a fence.” Suppression Hr’g Tr.

327, Apr. 20, 2016. And after having his memory refreshed by “detective

O’Donnell’s initial case resume,” Detective Booher testified that the dog bit Mr.

Parker in the head and that Mr. Rollerson tried to flee. 6 Id. at 277-79.

But again, Detective O’Donnell was not present when police seized Mr.

Parker and Mr. Rollerson, and it seems possible—particularly given that no trial

witness testified to seeing the men hiding—that Detective O’Donnell merely made

an assumption that the men had been hiding. Detective Booher did not identify the

6 The majority notes that one of the police reports in this case indicated that police found Mr. Parker and Mr. Rollerson “hiding in the rear of” a particular house. Ante at 24. That report—which was not in evidence—was authored by Officer Christopher Woody, someone Detective Booher never mentioned in his testimony. Just like Detective O’Donnell, Officer Woody himself appears not to have had firsthand knowledge of any suspects “hiding.” At trial, Officer Sarah Hillman testified that she was with Officer Woody in front of some houses on Hunt Place that night when she heard loud noises coming from behind the houses, received a radio alert that the K-9 officers “had one in custody” and another one running toward Hunt Place, and shortly thereafter joined Officer Woody in apprehending Mr. Rollerson as he was running between houses toward their location in front. Trial Tr. 226, 231-32, May 11, 2016. 67

officers who conducted the seizure as the source of any of his knowledge about that

incident, and he did not say how Detective O’Donnell learned the information he

gave him. Several times when defense counsel sought more specific information

from him on cross-examination, Detective Booher responded that Detective

O’Donnell had not provided those details. See Suppression Hr’g Tr. 281, Apr. 20,

2016 (“That was not specified by detective O’Donnell.”); id. at 290 (“I did not get

that specific with him[.]”); id. at 293 (“That wasn’t specified to me.”); id. (“He didn’t

specify that.”); id. at 320 (I don’t recall that being specified[.]”); id. at 322 (“That

was not specified.”). Contrary to my colleagues’ contention, there is no evidence

from which to infer that Detective Booher’s testimony that the men were “ducked

down” or “hiding” stemmed from a reliable source with firsthand knowledge of what

actually happened. The same was true in K.H., where we noted the “glaring”

“deficiencies” in the detective’s hearsay-based testimony, based on an unknown

source or sources, that it was his “understanding” that the officers entered the

apartment because of “some talk” coming from inside that they overheard. 14 A.3d

at 1091-92. If the government had called Detective O’Donnell to testify at the

suppression hearing, it would be the very same state of play as in K.H. Detective

Booher just adds another layer of hearsay.

Second, the majority infers from Detective Booher’s testimony that the 68

suspects were not engaged in some other innocent activity. 7 Ante at 14-15, 20. But

this factual assumption is based solely on the fact that Detective Booher’s patchy

testimony offered no evidence from people with personal knowledge about what Mr.

Parker and Mr. Rollerson were doing. If such witnesses had testified, the parties

could have asked them questions to probe the suspects’ behavior upon being

encountered by the dog and the police. These key unanswered questions in the

hearing are precisely what is wrong with relying on multiple hearsay. The issue is

not merely the accuracy of the particular claims of other people being repeated by

the testifying officer. It is also the completeness of the account being repeated. See,

e.g., Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989) (noting that cross-examination

“can expose inconsistencies, incompletenesses, and inaccuracies in [] testimony”)

(quoting 4 J. Weinstein, Evidence ¶ 800[01] (1988)).

The Suspects’ Presence for More Than an Hour in a “Perimeter”

Finally, the majority argues that although the hour-and-a-half to two-hour

time period between the robbery and the suspects’ seizure normally would cut

against a finding of reasonable suspicion, here, the lack of temporal proximity favors

the government because the suspects were likely trapped within the perimeter during

7 That Mr. Parker and Mr. Rollerson did not testify does not suggest otherwise. They did not bear the burden of proof. 69

that time and could not move further along. Ante at 16-18. But the record does not

support the significance my colleagues accord to Detective Booher’s testimony

about the “perimeter” police set up approximately two blocks away from the site of

the robbery. At the outset, the majority concedes that the evidence was insufficient

to support the trial court’s finding of a “secure” perimeter. Ante at 15. This

concession comes close to being conclusive, as a perimeter’s security is the thing

that instills the confidence that suspects located within that perimeter—assuming

other characteristics check out—are the suspects police are looking for. The

majority nevertheless concludes that, secure or not, “the term ‘perimeter’ in this

context can only mean that the police positioned themselves around the block” and

that “it was reasonable for [police] to suspect that people inside the perimeter were

aware that the perimeter existed.” 8 Ante at 15.

As an initial matter, my colleagues acknowledge that nothing in the record

8 The majority’s statement that “perimeter” can mean only one thing is at odds with the fact that Detective Booher himself used “perimeter” to refer both to the area generated by the Find My iPhone application on someone’s cell phone and to a geographic area that is the focus of a police search. And in fact, the trial court’s only mention of the perimeter was in reference to the iPhone perimeter in its discussion of the seizure of Mr. Ricks, not Mr. Parker or Mr. Rollerson. See Suppression Hr’g Tr. 4, Apr. 21, 2016 (“MPD used GPS location information obtained from . . . the Find My iPhone application to secure a search perimeter in the area . . . the iPhone app established a perimeter area where the phone was and it led him directly to the complainant Ricks.”) 70

explains why the police set up the perimeter where they did. Ante at 17 n.6. As

Detective Booher explained it, officers used the Find My iPhone application to

construct the perimeter, though there is no evidence that Mr. Parker or Mr. Rollerson

(unlike Mr. Ricks) was in possession of anything being tracked by the application.

Detective Booher could not describe how police determined the boundaries of the

area he referred to as the “rectangle” or the “perimeter” because, again, he “did not

get that specific” with Detective O’Donnell. 9

According to the majority, these flaws in the evidence supporting the legality

of the seizure of Mr. Parker and Mr. Rollerson “do[] not make the suspicion

unreasonable” in part because a specific fact—namely, that the codefendant Mr.

Ricks “was stopped in the area within ten minutes after the robbery”—is a strong

counterweight that offsets the shortcomings in Detective Booher’s testimony by

demonstrating an immediately established and successful perimeter. Ante at 17 n.6;

see also ante at 15-18. This claim that Mr. Ricks, linked to the robbery by the cell

9 The record was a little clearer about the role the Find My iPhone application played in the officers’ apprehension of Mr. Ricks, which Detective O’Donnell was personally involved in. Yet Detective Booher still said he did not know what the application displayed while Detective O’Donnell was using it to track a phone discovered on Mr. Ricks or whether Find My iPhone indicated an area larger than or contained within this “rectangle.” He also was not sure whose phone police used— he thought Detective O’Donnell’s but said “he could be mistaken.” Detective Booher “did not get that specific with” Detective O’Donnell, who informed him only that Find My iPhone “pretty much led them directly to [Mr.] Ricks.” 71

phones in his pocket, was stopped so quickly after the robbery, however, is yet

another example of Detective Booher’s testimony that’s hard to trust and that might

be clearly erroneous if the trial court had made a finding to this effect. As it stands,

the trial court actually found that “officers responded to the robbery at 3:35 a.m.”

and apprehended Mr. Ricks “around 4 a.m.” As Detective Booher never said what

time Mr. Ricks was stopped, it is unclear on what evidence the trial court based

“around 4 a.m.”—perhaps an approximation of evidence not introduced at the

hearing that Detective O’Donnell radioed that he stopped Mr. Ricks at 4:13 a.m. In

any event, depending on the lag between the robbery itself and the officers’ response

to the robbery, the court’s own finding suggests that it took between a half hour and

forty-five minutes, not ten minutes, to find Mr. Ricks. While Detective Booher did

testify that Detective O’Donnell told him Mr. Ricks was stopped ten minutes after

the robbery, the court’s findings and the objective evidence make clear this is

mistaken and that the majority cannot reasonably rely upon the extremely prompt

setup of the perimeter as a factor supporting the legality of the seizure of Mr. Parker

and Mr. Rollerson.

Even setting aside the multiple levels of hearsay, on this record, we can only

speculate about the nature of the perimeter, the competence of the police, and the

extent to which people in the area were aware of the perimeter—all considerations

that carry weight in the majority’s conclusion that the seizure of Mr. Parker and Mr. 72

Rollerson was supported by reasonable suspicion. Detective Booher did not testify

that no person was permitted to enter or leave the “rectangle” or that the streets

within the perimeter were empty. He testified only that he had not “been made aware

of anybody else that was stopped” or “hiding around that area” or of “any suspects”

Detective O’Donnell saw while tracking the phone, which, while not irrelevant, is

not as probative as an affirmative statement (even better if by an actual eyewitness)

that there in fact were no other people around at the time the men were seized. 10

Reflecting Detective Booher’s lack of personal knowledge, this testimony was

“vague and unenlightening” as to the size of the perimeter, its security, and whether

anyone else was present within it. K.H., 14 A.3d at 1092; cf. In re T.L.L., 729 A.2d

334, 341 (D.C. 1999) (“[T]he fact that the officers had information leading them to

[the location of the seizure] can contribute to the articulable suspicion calculus only

if the judge has been apprised of sufficient facts to enable him to evaluate the nature

and reliability of that information.”). In the light most favorable to the government,

the record does not support the majority’s view of the “perimeter” as a thing that

mostly kept people on the inside in and people on the outside out and that was devoid

of pedestrian traffic except for the suspects. It therefore likewise does not support

10 The trial court’s finding to the contrary—that “the detective testified that he was informed by Detective Booher that no other pedestrian traffic was seen in the area”—was clearly erroneous, and also confuses Detective Booher with Detective O’Donnell. 73

the majority’s view of its pronounced relevance to the reasonable suspicion analysis.

The haziness of Detective Booher’s suppression hearing testimony about the

characteristics of the perimeter becomes even more stark when compared to the

evidence at trial, where the defendants were able to question people who knew

something about the perimeter. Challenging the nature of the perimeter was a key

aspect of Mr. Parker and Mr. Rollerson’s defense strategy—the prosecutor noted

during a bench conference that in “each cross-examination” she was “addressing . . .

the attack of the integrity of the perimeter.” Trial Tr. 666, May 3, 2016. Those

attacks produced a number of statements that cast doubt on the government’s

contention that the perimeter was established promptly and was firm. As noted

above, my colleagues in the majority deem it reasonable to infer from the tenuous

hearsay testimony at the suppression hearing that the perimeter was basically

effective and that people inside the perimeter would be aware of its existence. But

at trial Detective Lazarus testified that he did not see any officers on 55th Street,

while Detective O’Donnell testified that the perimeter was not “impenetrable” and

that he did not know whether “anybody came in or out.” There was also testimony

that the area near the perimeter can be a high traffic area, even in the very early

morning hours. 11 This glimpse at how witnesses with at least partial familiarity with

11 In closing argument counsel used the fruits of their impeachment of officers 74

the “perimeter” described it and how they responded to impeachment about those

descriptions lays bare the comparative lack of knowledge and detail at the

suppression hearing, where the sole witness struggled to shed any light at all on

matters that are central to an evaluation of reasonable suspicion.

Conclusion

In sum, the suppression hearing testimony on the important facts informing

reasonable suspicion is at least as unreliable in this case as it was in K.H., where the

hearsay testimony “that someone in apartment three said police were outside” and

that “someone [was] going to run or something like that” failed to show “that an

officer of ‘reasonable caution’ would have been warranted in believing the robber

had gone into the apartment.” 14 A.3d at 1091-92 (footnote omitted). It is possible

with firsthand knowledge, highlighting that those who testified about the security of the perimeter arrived at the scene on the late side and that there was no testimony about what time the perimeter was set up. Trial Tr. 593, 625, May 16, 2016; Trial Tr. 684, May 17, 2016. Among other things, counsel argued that the perimeter did not assist law enforcement in keeping track of the “two black males dressed in all black” who a 911 caller claimed to have seen “running south [on 55th Street] toward Nannie Helen Burroughs Avenue.” Trial Tr. 594, May 3, 2016, Trial Tr. 593, May 16, 2016. Counsel also argued that the perimeter was not so airtight that the complainant’s wallet, money, and marijuana did not apparently make their way outside of it, given that they were never recovered. Trial Tr. 593, May 16, 2016; see also id. at 625-26; Trial Tr. 705, May 17, 2016 (“Who’s [sic] yard were they caught in? Who lives there? And what time was it? It wasn’t 3:38. We know that. The testimony was it was near two hours later. Right?”). 75

the government could have produced reliable evidence that made its case on the

legality of the seizure. But I would not draw the speculative inferences the majority

draws, rely uncritically on the rule allowing hearsay in suppression hearings, and

overlook the holes in the evidence presented at the suppression hearing. We should

instead follow the precedent of K.H., reverse Mr. Parker’s and Mr. Rollerson’s

convictions, and remand for a new trial at which the fruits of the illegal detention are

suppressed. 12

12 The government does not argue that the trial court’s failure to suppress fruits of this seizure was harmless, which means we will affirm these convictions “only when harmlessness is obvious.” See Randolph v. United States, 882 A.2d 210, 223 (D.C. 2005) (reversing one appellant’s convictions where it was “at least debatable” that the erroneous admission of hearsay testimony was not harmless and where the government was not claiming harmless error). The most conspicuous fruits of this seizure are the on-scene identifications of the men by the complainant. See, e.g., K.H., 14 A.3d at 1092-93 (excluding out-of-court identification of defendant as the fruit of an illegal seizure). And the admission of these identifications—which occurred shortly after the robbery—was not decidedly harmless. Though the complainant identified Mr. Parker and Mr. Rollerson in court, this identification occurred months after the on-scene identification, and “[t]he notion that . . . the jurors relied solely on the in-court identifications and were not influenced at all by the testimony regarding the show-up identification, is contrary to common experience and, indeed, flies in the face of common sense.” Ellis v. United States, 941 A.2d 1042, 1049 (D.C. 2008) (reversing conviction where show-up identification should have been suppressed, despite reliable in-court identification); see In re T.L.L., 729 A.2d at 343 (same).