*1 SCHWELB, Before STEADMAN KERN, Judges, and Senior Associate Judge.
KERN,
Judge:
Senior
from
appeal
judgment
This is an
jury
for assault entered after a
conviction
presents
trial.
for our determination
It
court,
particu-
whether the
under
circumstances,
er-
lar
committed reversible
eyewitness
ror
to the
permitting
crime,
prior
shown
to trial a
who was never
line-up
suspects,
to iden-
array or
tify appellant
several
in court
one of the
victim.1
affirm.
assailants of the
We
The victim testified at trial that
walking Georgetown
mid-
shortly
after
night
parents’
home
on his
September
persons in an auto-
when
him. After
mobile hailed
some conversa-
tion,
jack-
passengers grabbed
one of the
carrying.
victim
et he
When the
it,
sought
pulled
he was
into
to retain
ex-
away. Ultimately, he
car which drove
world,
deny
pres-
tent
alibi,
as with a conventional
appellant
note that
does not
from all
1. We
attack,
defendants,
argues
at the
ence
scene of
the three
but rather from
he was
of those who
fact assault-
admittedly
not one
group
at the
of males
constituted
Thus,
assessing prejudice, it is
ed the victim.
scene.
identifying appel-
issue was not
relevant
*2
your
(but
interposed,
court
“How is
jacket)
himself
not his
from
The trial
tricated
prejudiced? ... Defense
[appellant]
client
persons
fled.
of the
the car and
Some
pick him
replied, “Because he’ll
counsel
car,
again stopped, pursued
the
which had
in the courtroom.
It’s an
[appellant] out
They caught up
him on
with the
foot.
However,
line-up.”
defense counsel
unfair
him and stole
and kicked and beat
victim
legal authority to
provide
was unable
appellant
He identified
as one of
his boots.
he
support
proposition
the trial court to
him.
those who had attacked
prosecution was
advancing:
eyewitness
The
testified at trial that he
array or
obliged
photo
“to show a
has
just parked his car when the victim
had
an in-
line-up
they can elicit
have a
before
running up
pleaded
came
to him and
identification_”2
court
help.
appellant
The
witness observed
Ultimately, the trial court overruled
corner and com-
others come around the
prosecutor asked
objection
defense
and the
push
mence to
and then kick the victim
you
question
witness: “[D]o
to the
The
when he fell
sidewalk.
witness
you
recognize
think that at this time
police
and called the
emer-
left the scene
night if
any
people
you
of the
saw that
gency number.
again?”
you saw them
addition,
testified,
under
witness
replied,
The
“With less than a
witness
prosecutor,
questioning
I
percent
vivid recollection
hundred
police
prosecu-
or the
not contacted
man there
young
The
blond
would....
being
May
until
or
tor about
a witness
late
my
His face
certainly fits
recollection....
June,
trial,
early
point
At this
my
does fit
recollection.”
prosecutor requested
a bench confer-
appellant in
then indicated
witness
There,
ence.
he advised the trial court of
explained that he had
the courtroom and
asking him
question
contemplate
I
“[t]he
person chas-
“recollected” him as “the first
you
recognize any
you
... do
think
ing
around the corner.” The
[the victim]
people you
again.
saw them
And
to state
went on
witness
be, no,
expect
I don’t. I
answer will
appellant,
gentleman
respect to
“The
guarantee
can’t
that’s his answer because
inches taller than
recalled.
is about four
looking
him
never had
at them.”
is,
standing up, I
That
I have seen him
attorney protested
The defense
to the
person
myself
said to
is taller
court, “I was informed before the trial that
added.)
(Emphasis
than I recalled.”
prosecutor]
going
was not
to ask him
[the
Then,
place
following colloquy took
to make
in-court identifications.”
prosecutor
and the witness:
between
standing up?
Q.
you’ve seen who
As
Agreeing
with defense counsel that
had said the witness would not be asked to
gentleman
there.
A.
identification,
prosecu-
give an in-court
standing up?
Q.
you
him
Where did
see
asking
“I’m not
him in order to
replied,
tor
by the entrances
A.
I have seen him
get
asking
an in-court identification.
I’m
days.
at least the last two
and exits over
jury
...
I want the
to under-
the wit-
Defense counsel cross-examined
being
the reason he’s not
asked
stand that
him that between
ness and elicited from
passed.”
is too much time’s
showed
the trial no one ever
the event and
or
array
photos,
responded that “there
him an
Defense counsel
line-up. Appellant’s counsel
line-up videotape of a
opportunity to show him the
“pick
out the
then
the witness
tape
line-up photograph
...
asked
video
...
here in the
are on trial
people
three
photo array and it wasn’t done.”
identifi-
failed to make an out-of-court
appeal, appellant
in his brief
who has
2. On
makes clear
permitted
brought into court and
objecting
ground that
cation
not now
that he is
identify
from the stand."
impermissibly
the defendant
the in-court
suggestive.
nothing
132-33
v. United
concedes "there is
in- Middleton
He
(D.C.1979);
A.2d
herently improper
tion,"
Brown v. United
about an in-court identifica-
(D.C.1974).
acknowledges that "even a witness
and he
courtroom,”
48; Rosser,
Here,
guessed
supra,
with
would
Thus,
present.
oppor-
the defense had an
elicited no useful identification infor-
have
tunity
prejudice
to show
but chose not to
mation.6
challenge
ap-
identification of
the witness’s
may
urged
appellant
It
be
suffered
pellant
impermissible
under
circumstances.
prejudice as well from defense counsel’s
sum,
appellant’s
reject
In
we
ar
inability
pretrial
to obtain a
circumstances, the
gument that under the
array
videotaped
line-up.
from a
prosecutor engaged in misconduct so as to
Berryman
v. United
require
per
Neither are we
reversal.
1317,
(D.C.1977). Clearly,
1319-20
the wit-
upon
by appellant’s
the record here
suaded
identify appellant
pre-
ness’s failure to
in a
“deprived
assertion that he was
... of the
impeach
trial identification could be used to
However,
opportunity
persuade
the trial court that
his incourt identification.
counsel,
by
suggested
any in-court identification
court
to defense
witness]
[the
impeached by
hopelessly
so
witness could also be
the fact
be
unreliable
only identify appellant
could
in-
excluded on either constitutional
should be
court,
inherently suggestive
evidentiary grounds.”8 Specifically, ap-
an
type of or
Appellant
6.
also asserts that had he known that
to him in a short sidebar conference with the
judge.”
the witness would make an identification
unplanned sightings,
reason of his
he would
express
opinion
validity
We do not
steps
taken
to avoid such chance encoun-
argument
counsel had
of this
because defense
Although
ters with the witness.
the record does
ample opportunity, from the time that the wit-
reflect that the
had admonished the
until he made his second motion
ness testified
appellant,
witness to avoid contact with
it seems
later,
days
to marshall his
for a mistrial
two
unlikely
physically
that the defense could have
arguments
to do so.
effective
but he failed
disguised
day
appellant each
he came to court
8.Appellant
argues, for the first time in this
spirited
him in and out of the courtroom
court,
by failing
trial court erred
day
lengthy proceeding
that the
each
of this
so as to
weighing
pro
factors when
sightings
consider certain
possibility
eliminate the
of the chance
reliability
noted,
against
testi
value
appel-
bative
that in fact occurred. As we have
Braithwaite,
mony.
In Manson v.
432 U.S.
custody
during
prior
lant was not in
to and
(1977), the United
97 S.Ct.
SCHWELB, dissenting: Judge, Associate Daly. next to driver of the vehicle Robles, Arnold two was one substantially my opinion, McCall was *5 Cabrera, women, Mary Deirdre Ford and effectively prejudiced prosecution when the riding in the front seat. David McCall was Accordingly, I promise a to him. broke car, by even- in the rear of the flanked his respectfully dissent. codefendants, Craig
tual
Richard
Grimes
Hyder.
and Mark
Grimes,
egged
one of
Apparently
arises
rather bizarre
This case
out of a
early
Daly if he was a
Georgetown
encounter
in
in the
women asked
14,1988.
There is
morning
September
power.”
of
The
and a “white
hours
skinhead
witness,
Daly,
dispute
exactly
response
is a
complaining
Dr. Michael
some
about
what
Daly provided
provocative
in
rather
young British doctor who had arrived
appears
days
inquiry,1
earlier to
that the conversa-
only
the United States
four
interrupted
ensued
when
work at the National
Institute. On tion which
was
Cancer
grabbed
evening
question,
suddenly
Daly’s
in
coat.
Daly
had visited
Grimes
699,
(3)
(D.C.1988);
police
prosecution
positive,
did
A.2d
701
and
and
544
States,
Sheffield
963,
denied,
(D.C.),
attempted,
intend that an
be
966-67
cert.
indentification
965,
2414,
(4)
pointed
to the wit-
L.Ed.2d 1071
no one
out the accused
441 U.S.
99 S.Ct.
60
ness,
(5)
fully
(1979).
and
is cross-examined
witness
concerning the
of the identifica-
at trial
basis
Arguments
appeal
raised
first time on
for the
record,
at
On
of this
tion. Id.
95.
the evidence
plain
reviewed
error and we
will be
factors were com-
we are satisfied
all five
here.
495
find no error
Allen v. United
plied with in this case.
(D.C.1985).
1150-54
A.2d
Moreover,
attempted to cast
defense counsel
According to all of
who com-
the witnesses
during
credibility
doubt on
witness’s
Grimes,
point
Daly
except
denied
mented on the
however,
witness,
of
cross-examination
power”
that he
that he was "white
but intimated
any sug-
effectively
was able to
counter
witness
gestions
time,
part
a skinhead
of the
or words
was
unreliability.
presented in
We are
subsequent
In a
confession in
that effect.
extremely
and con-
this case with
articulate
assaulting
robbing Daly
which he admitted
and
who,
through
vincing
unexpectedly,
witness
(to
"gentleman”)
he referred
whom
as the
appellant
quirk
was
of fate
able to remember
Hyder, Grimes con-
also identified McCall and
great
night
crime in
and the events of
of the
"gentleman”
tended that the
had said he
detail.
know,
power”
“white
and had demanded to
effect,
wrong
upheld
indi-
has
identifica
what was
with that. Grimes
This court
an in-court
resulting
"ass
with a
that he told the man that he was an
from chance encounter
cated
tion
(Grimes)
Har
that he
had close black
if five factors are satisfied. See
hole" and
defendant
(D.C.1978),
explained
directed the
vey
denied,
cert.
friends. Grimes
that he
v. United
drove away, with spite out of the window. of his some- II precarious position, Daly appar- what The above were basic facts described ently of the laughing, but some other occu- largely undisputed at trial. There was con- pants of the vehicle warned him that the however, as disagreement, siderable to the funny, and one of the situation was part played crime the various butt,” men threatened to “kick his Although undisputed defendants. it was worse. codefendants, McCall, was on like Eventually, stopped Daly the car ma- Daly the scene the time that was as- neuvered his out and ran from the robbed, saulted and his defense was essen- scene, leaving jacket the car. Soon tially presence. one of innocent occupants except all vehicle principal witnesses who testified at him, running Robles after were with two regarding the encounter included apparently men lead. (Robles, car occupants three and, help asked for from a cabdriver when Ford, Cabrera, the Ms. and Ms. latter hav- not to request produc- turned out ing stand been called to the the de- tive, vaulted over the hood of the cab fense), (Daly), passerby and a victim solicited the assistance of a man who (Vagnette). testimony of these wit- just got out of his car. That man turned played by nesses as role to the Gary Vagnette, out to be whose eventual confusing contradictory. is the subject identification of McCall *6 appeal. this Robles, Ford and Ms. Cabrera all Ms. spoke Vagnette, As testified Daly the van- that it was Grimes beat and guard caught up Daly of his tormentors with kicked took his boots. None and who him. or more of the men and of the implicated One beat three McCall beat- kicked ing, kicking, misappropriation him and demanded that he take off or the boots; Daly Daly’s did so and All property. delivered them three witnesses agreed to the that car robbers. One women— McCall when the was apparently Mary that he was one of began Cabrera —asked for and encounter and Daly’s Daly The car after left received wallet. assailants then those who ran from the it; returned to their car. Ms. claimed to believe that called Cabrera police. Daly, rather bleeding following who was and who McCall was Grimes than involuntarily jack- chasing had been relieved asserted Daly. of his The two women et, standing simply less than a McCall around boots and wallet week after that was assault; capital, during the arriving managed away in our nation’s from action parents’ walk home and next to Grimes. to his also called Robles said McCall was responded, impeached prior with a help. Police officers the Ms. Cabrera was prosecutor in occupants were inconsistent to a vehicle soon identi- statement Grimes, inculpated apprehended,2 apparently fied she had McCall which McCall; charged in a that she was too Hyder single were indict- she claimed robbery.3 weapon ment armed drunk when she made that statement with an allegedly saying, used is in know was assertion they which described what she police a “shod foot.” officer.4 indictment as All three rebutted a Mary charged apprehension Cabrera another 3. The same indictment 2.The initial related to Daly’s robbery in connection with wallet. robbery days assault and occurred a few however, not, prosecuted by Ms. Cabrera was later the three and in which defendants were States. presently serving charged. also is years than ten sentence of no less and no more Grimes, noted, identified McCall and as I have years thirty than of his result conviction Hyder in his confession. confession the second case. against to avoid him but redacted admitted hearsay problems. generally Bruton v. Unit- the conclusion of the direct examina- trial as the At Daly identified McCall at him, him, Vagnette, asked to and tion of person who chased kicked however, A Daly was, approach ensued; im- bench. sidebar conference took boots.5 responses prior identifi- peached with his procedures. Approximately ten cation (the I prosecutor): MR. FRIEDMAN crime, Daly days after the officers showed thought to do before should array photographs which eight color in, sorry. The I question came I’m jury quickly He included the three defendants. asking Vagnette] is contemplated [Mr. and identi- photograph selected Grimes something of do think you to the effect “primary” He fied as his assailant. any of you recognize people po-A photograph. also selected McCall’s expect And I that you again. saw them testified, however, a few lice that detective no, be, I don’t. can’t his answer will I Daly had at a witness weeks later stated answer I guarantee that’s his first photograph conference that “the looking had him at them. never pri- pulled array he had from the was the McCall): (counsel for I MR. NIBLACK assailant, mary being that did the one the trial that Mr. was informed before activity him or as- most chased going not to ask him Friedman was That saulted him took his boots.” [and] make in-court identifications. man, course, Grimes, Daly’s Well, right? THE COURT: was, respect, statement in this consistent Well, I said MR. FRIEDMAN: whatever Robles, Ms. with those of Ms. Ford and I—and I said court and I think Cabrera. him in say asking that. And I’m did 2,1988, On about seven weeks November get order to an in-court identification. police robbery, after the officers showed asking guess I’m him because want Daly videotape lineup. of a jury to that the reason understand He videotape watched times. five being asked is too much time’s he’s eventually “possible” Grimes as described passed. (McCall) “ring a but said No. 2 did not submit, Your MR. NIBLACK: would viewing, Daly bell.” On the fifth and final Honor, opportunity there to show not one categorically stated that No. 2 was *7 tape, line-up there was him video
of his assailants. line-up pho- opportunity him the to show opportunity for him
tograph, there array Ill and it to show wasn’t done. although he Gary Vagnette testified that your preju- is THE COURT: How client placed the 911 call person diced, Mr. Niblack? incident, police to he alerted which first him pick Because he’ll MR. NIBLACK: May until or June was not interviewed line- in the courtroom. It’s unfair out 1989, eight nine the rob- months after suggestive line-up. up. completely It’s a that he two men bery. He stated saw op- line-up, suggestive it’s a Not even third, up that imme- rough chase and for him to— portunity diately before the assault the victim any that he did not THE COURT: There’s law something said at all. All the supports proposition man as that understand. He described a blond any in this absent having victim a second man law area kicked the than the courtroom participated suggestivity in that ac- other perhaps having itself— tivity. situation always stop face.” "I when see that 88 S.Ct. 20 L.Ed.2d want ed 476 391 U.S. (1968). that Grimes looked “familiar” testified probably back of and was one of men in the car; recognize Hyder. Mark he did people MR. NIBLACK: I ask other concerning After further discussion permitted my to sit in the courtroom with any whether case law existed on counsel’s client, with the other defendants. point, objection: the court overruled the THE COURT: Excuse me? THE [referring COURT: You to Mr. Ni- MR. NIBLACK: Then I ask that can show that he was never asked black] police department, Court and U.S. attor go line-up, any pho- to a never shown ney’s provide people office other that are tos, government just did this similar to sit in the pro courtroom and happens because it to have all three of vide us a opportunity line:up[7] fair for a people together. these here in court But No, THE COURT: sir. any says don’t know of law that Mr. MR. NIBLACK: says There is a law that Friedman can’t do it. that is favored. if you Now have some basis to—that THE Why? COURT: you have suppress moved to MR. NIBLACK: There is case law that know, you because there was some it’s— says that type arrangement it, suggestivity leading up before trial upon request.
favored then you you any I’d hear don’t have THE COURT: What’s the case law? basis for that. hand, MR. NIBLACK: On the other MR. NIBLACK: There be other has viewed the defendant things testify, he didn’t Mr. Friedman setting. courtroom There are three de- him, didn’t ask Mr. Friedman [which] fendants in asking this case and him to knows we could explored pre- make an in-court identification when I trial motions. was informed Mr. Friedman when this THE purely speculative. COURT: That’s case started that there was to be no your I’ll objection. overrule identification—in-court identification— added.) (Emphasis THE COURT: why you That’s I asked judge’s ruling, After the you prejudiced, how are can’t asked the witness whether “at this time conceive of basis on which you could you recognize any people move to such as identification you night you again.” saw that if saw them based on I’ve heard. And Vagnette responded that “with less than a you can tell me some you basis or what recollection,”8 percent hundred vivid
would have done had Mr. Friedman could state that “the blond man told— certainly there my fits recollec- [McCall] all, MR. NIBLACK: First of when there tion.” On cross-examination counsel for is an opportunity provide identifica- codefendants, Vagnette indicated that tion, it should be under as fair a circum- *8 the blond man was one of the first two possible. stance as patently And this is pursuers Daly.9 who chased and kicked On They unfair. opportunity had the to examination, Vagnette redirect revealed show him the array, opportuni- the standing that he had observed McCall near ty to show him the photograph of the testified, the courtroom he line-up, before and that they had the opportunity show “I myself said to that this is the main tape line-up the video they and didn’t do it. under defendant or this is one of the defendants Now the most favor- circumstances, suggestive Daly able the most this case.” elaborated that the they circumstances ask him always person to do it. blond man the main “was already 9.Vagnette’s testimony subject Since the witness had seen McCall at of what table, unclear, questionable the defense it is whether this did at and a McCall was first somewhat proposal accomplished could have juror judge inquiring its intended sent note to the whether purpose. Daly person had testified that McCall was the ground. who kicked the man on the With the counsel, Vagnette judge stated that the blond consent of all the instructed the man was four jurors they rely inches taller than he remembered him but that that would have to on their own my "his face does fit recollection.” recollection. first, me, the IV person came the who around aggressive, and the person who most was prosecutor’s assurance. A. The only person eye had contact.” with whom was not He indicated that his identification not a issue Identity and was critical was solely presence at the hand, on McCall’s based all McCall’s trial. On one at defense table. in the involved witnesses who were September 1988 incident testified both following day, Vagnette after had pas- seat McCall was one of back that testimony, counsel completed his McCall’s car that sengers Arnold Robles’ and now for a mistrial. He made motion chase, present at the conclusion of was denied contended that McCall been by Daly Michael was assaulted when Vag- right to counsel connection with stripped of his boots. On pursuers sighting” of him outside nette’s “second hand, witnesses other the “involved” courtroom, prosecutor’s as- standing merely was agreed McCall no identifica- surance there be assaulted, watching, Daly by, when was failing by Vagnette lulled into tion counsel own, Grimes, acting on his and that was steps necessary to avoid to take head, him as struck kicked who sighting: second sidewalk, him to lay ordered Here, Vagnette con- as as Mr. was far All three the defen- remove boots. cerned, govern- informed was Ford, Mary companions dants’ —Deirdre beginning of that there ment at the Cabrera, Arnold Robles—identified only would be one in-court identification and, indeed, only primary as the Grimes attempted the com- and that was from gave Ford and Ms. assailant. Ms. Cabrera I was informed that plaining witness. exculpatory strongly which was Vagnette asked to at- Mr. a defense to McCall and consistent with as tempt to an in-court identification make presence; Robles stated that mere knowing myself that there ... (like acquitted) who was Hyder, McCall danger between of this confrontation merely standing close when Grimes able the defendant and Mr. If three his victim from behind. struck avoid it. precautions to take no Ford, McCall—Ms. witnesses who knew have, there And I would had I known been Ms. Cabrera and Robles—had (but) I was led danger ... identifying at the trial witnesses there believe the Government case, might well have been attempt at an in-court identi- would be no simple charges, including acquitted of all fication. assault. mis- judge for a denied motion presence” defense was McCall’s “mere
trial, eventually sub- and the case was undermined, however, seriously by the Grimes, fled mid- jury. mitted to the Vag- by Daly and identifications courtroom trial, through course, was convicted was, stranger He nette. robbery. sen- He was witnesses, absentia armed identified of these but each both than imprisonment for no less upon tenced him trial the man who first set twenty-one. years ground, pro- and no more than seven him to the Daly, knocked *9 in- guilty of the lesser was found These McCall to kick him into submission. ceeded devastating He was simple assault.10 to cluded offense of in-court identifications were pursuant McCall, to the that year they one undermined his claim committed for Youth followed bystander Rehabilitation he a mere who District Columbia was 24-803(b) (1989). did Hyder to of the crime but Grimes the scene Act. D.C.Code § in any assist charges. participate filed not in or acquitted of all McCall was ensuing robbery and assault. timely appeal. notice of robbery. jury as to unable to reach a verdict 10. was charge respect to the of armed McCall
957 intended to ready had a arsenal with which to counsel what identifications he McCall Daly’s identification. might reasonably combat in-court elicit—a concession that array previously seen him in a light quoted pro- questioned video, and, occasions, lineup and on those that, nouncement contends F.G.—he or, suspect had either eliminated him as a prosecutor chose to such once the reveal photo array, in the case of the selected his information, obligation not to he had an Grimes, picture that indicated provide accurate informa- mislead but to McCall, definitely primary assail- was agree. tion. position argue ant. McCall was in a right rely McCall’scounsel had the on quite plausibly Daly’s in-court identifi- prosecutor’s representation. Rosser v. him as cation of the main assailant was 381 A.2d United testimony, giv- erroneous and that his trial (D.C.1977). Although McCall accuses offense, nearly year en after the less was wrongdoing, prosecutor of deliberate than his earlier reliable statements. prosecu- no reason to that the have believe however, Vagnette, In the case of McCall intentionally tor deceived defense counsel. prosecutor, had no such ammunition. The appears likely It more that he made an photo array, lineup photo, had a improvident commitment which he later re- hand, lineup videotape readily had not at event, gretted.12 any proceeded quite In any bothered to show of these materials to Rather, correctly by seeking judge’s permission Vagnette. effectively am- by securing bushed McCall an in-court iden- proposed question to ask his final instead already tification after proceeding judge’s consent. without stand, the witness at which time it too doubt, however, no There can be arrange late to a fair confrontation. The least, prosecutor, very de- at “threw ensuing by- identification an uninvolved fense counsel ... off the track.” Id. jury stander witness whose suggests prose- government likely devastating to credit awas blow “agreement” any cutor did not violate be- from which McCall never recovered. “agreement” se, per cause there was no argues Vagnette’s in-court suggests that defense counsel should identification of McCall should have been possibility prepared for the of a court- excluded, surrounding not because the cir- by Vagnette room identification impermissibly suggestive, cumstances were generous event. I think that a more prosecutor but because the had assured expansive prosecutor’s obligation of a view McCall’s counsel before trial that no such is in circumstances such as these. called for identification would be elicited. “[A]ll agree “We cannot that defense counsel appear agree members of the court doubt, test, obliged and thus a criminal defendant is entitled to all avail- Rosser, supra, prosecutor’s word....” necessary able information to make an in- prosecutor’s But for the 381 A.2d formed decision whether ... identifica- a[n] seek an in- assurance that he would not subject challenge.” tion effective Vagnette, court identification the de- F.G., (D.C.1990) (en re A.2d preparation strategy “trial banc).11 fense’s Although McCall concedes that might v. prosecutor well have been different.” Smith strictly obliged was not un- Super.Ct.Crim.R. der 16 to tell defense F.G., showup
11. In
the issue concerned a
identi-
was not shown to have
That
not,
fication,
language applies
engaged
wrongdoing
does
but the court’s
intentional
forti-
however,
prejudice
ori to a
identification. Unlike a
lessen the
to McCall. “It is
courtroom
situation, “an
on-the-
of no consolation to an individual denied [his
courtroom
immediate
uniquely powerful
rights]
good
scene
has
indi-
that it was done in
faith." Burton
715, 725,
Auth.,
reliability
Wilmington Parking
cia of
which more than counterba-
365 U.S.
*10
861,
856,
(1961).
any suggestivity,
special
absent
elements
81 S.Ct.
(D.C.1985) (citation 378 A.2d 1319-20 quotation and internal omitted).13 Indeed, (D.C.1977). marks the Government’s “[i]f upon testimony of an identi case turns Although specific no judge the trial made witness, fore fication and defense counsel finding prosecutor to had as whether irreparable suggestivity if the wit casts claimed provided an assurance as hearing, appears preliminary ness at the ruling attorney,14 he based his McCall’s lineup, to showing prejudice. remedy lies in a motion for a any the absence of 385 A.2d Lee v. United witness will assure that the identification Cf. (D.C.1978) (government’s make failure to suspect lineup rather first at a view only if it is discovery requires reversal hearing room.” magistrate’s than in the “substantially prejudicial” appel- to Smith, U.S.App.D.C. United States implicitly recog- rights). judge lant’s (1972). Ill, 113, 1148, 1150 Given 473 F.2d if identification would sub- nized that change of timing prosecutor’s of the McCall, be stantially prejudice it should direction, however, it was far too late for turn to the issue of excluded. therefore lineup, and coun the defense to obtain a prejudice. impro request sel’s at the bench for an futile under the circum vised one was Prejudice. B. stances. attorney apprised If McCall’s had been a motion to McCall could also have filed Vagnette given opportu- would be any courtroom identification suppress courtroom, nity identify him in suggestive unrelia- Vagnette unduly measures to could have taken a number of G., Indeed, supra. he did ble. In re F See fact, appar- possibility. counteract this In motion, albeit an unsuccessful file such a ently justifiably relying prosecu- one, regard Daly’s assurance, contrary he took tor’s none sure, him. To this court has held that be them. nothing inherently improper about there Daly, Vagnette never shown Unlike identification, an in-court so that even photo array videotape of a either a to make an out-of- witness who has failed lineup, ability nor was his to make an iden- brought into court identification non-suggestive setting tification in a ever permitted identify the defen- court and way. prose- other tested Absent See, e.g., from the Middleton dant stand. assurance, improvident cutor’s this omis- v. United part prosecutor sion on the and the Nevertheless, (D.C.1979). McCall would effectively police could have been remedied right evidentiary hearing have had a attorney could by the defense. McCall’s suppress filed a motion to identifi- he had investigator prepare asked an have F.G., testimony. supra, cation In re photo array present Vag- it to own assuming, A.2d at 728. Even as did the nette; investigator could then have tes- judge, that such a motion would not the results. Counsel could also tified to successful,15 ability to lineup. v. have been McCall’s requested Berryman have requested initially agree government's be taken with the conten- 13.I cannot prosecutor’s presence jury. tion that there was no breach of the outside the prosecutor subjectively assurance because the identify Vagnette would not believed that giving prosecutor denied such an 14. The never First, prosecutor had no basis for a McCall. assurance, judge apparently assumed and the Vagnette or could not belief either that could Vagnette counsel’s claim was correct. that defense identification, never make an attorney been asked to do so. McCall's turned F.G., this court held that a defendant prognosticator far better when he out to be a evidentiary hearing presumptively to an entitled Vagnette identify predicted his client prompt showup iden- on a motion to suggestive context of the courtroom. in the Moreover, drug by an undercover officer in a tification prosecutor who had since was case, though even the trial court distribution commitment, obligation to it was his made Public Defender Service at- had noted that the any course of conduct which would eschew torneys defense counsel were un- and other unsure of what result in its breach. If he was single comparable case in which a say, aware of a could
959
review.
Vagnette might well have C. The standard
cross-examine
of
following a
substantially enhanced
been
approached the
prosecutor
the
When
hearing.
motions
him to
judge
permit
the
to
bench and asked
Vagnette, de-
question
critical
to
pose the
ap-
Finally, if McCall’s counsel had been
considerable
objected
counsel
fense
Vagnette
potential identi-
prised that
was a
not, however, have at
He did
vehemence.
witness,
fication
he would have been
a
arguments
fingertips all of the
which
his
client,
position
possi-
so far as
to advise
now
appellate
attorney has
McCall’s
ble,
sight,
try to
keep
to
out of
and thus to
Indeed, trial coun-
presented to this court.
Vagnette
sighting16 by
a second
avoid
in-
point appeared to be that an
sel’s main
for,
might pave
which
and rein-
improper
itself
court
identification was
force, a courtroom identification. This
attempted
had
when
court has held that a defendant
waive
suggestive procedures
contention
less
—a
pretrial hearing on a
presence
at a
held,
which,
judge correctly
as the
suppress
testimony.
motion to
identification
agree
support in our cases. I
finds no
supra,
By
claims
A.2d at 163.
the trial
385
brought to
attention of
fully
the
States, 565
Dixon v. United
judge. See
factors enumerat-
Considering the three
(D.C.1989)(discussing purpose
A.2d
Lee,
there was no
satisfied that
ed in
am
rule).
“plain error”
of
more
was far
reason here for what
valid
planned
the
did, however,
the
than the “nondisclosure”
make
counsel
McCall’s
to seek
not
commitment
that,
prosecu-
identification—a
judge
but for the
point to the
change of mind did
prosecutor’s
assurance,
one.
could have moved
tor’s
promise on which
him to break a
not entitle
identification
right
rely.
From
had a
steps
McCall’scounsel
other
might
have taken
—includ-
of the administration
sighting
perspective
the
ing attempts to avoid a second
—to
require
for courts to
justice,
important
it is
he did
interests. While
protect his client’s
keep
promises.
its
government
filed a
he could have
not mention that
lineup, he did ask that
motion for a
unexpected
persuaded that an
I am also
court-
assembled
the
improvised one be
identification,
for which
courtroom
room,
for
prosecution
the
and he criticized
prosecu-
unprepared as a result
Vagnette to
having previously
asked
commitment,
inherently
tor’s earlier
understand-
lineup. Counsel was
attend a
sym-
can
Although one
prejudicial to him.
guard by completely
unex-
ably taken off
ruling
judge, whose
pathize with the trial
denouement,
request by
namely, the
pected
made
counsel
made after McCall’s
a commit-
prosecutor for relief from
the
regarding
unpersuasive contentions
largely
reasonably
defense had
ment on which the
prejudice, I am unable
character of the
circumstances, an
ordinary
relied. Under
cannot,
his decision.
agree
weeks to devise a
attorney would have had
course,
would have
certain that McCall
be
identifica-
strategy
an in-court
to combat
attorney had
acquitted even if his
been
unreasonable, my opin-
tion. It would
Vagnette’s potential iden-
apprised
been
ion,
penalize his client
counsel or to
to fault
all rea-
and had taken
tification of McCall
attorney failed to assemble
might
He
also
steps to avert it.
sonable
argu-
the effective
enumerate all of
if the identifica-
even
have been convicted
sidebar
ments
to him a short
available
Certainty
excluded.
tion evidence had been
judge.
conference with
however,
required.
is not
subjects,
on these
wrong.
may profit from his own
No man
doc
error
Analogizing to the harmless
Terminal, 359
Brooklyn
v.
Eastern
Glus
trine,
“with
the court must be satisfied
fair
760, 761,
231, 232,
3 L.Ed.2d
79 S.Ct.
U.S.
hap
assurance,
pondering all that
after
Here,
(1959).
prosecutor sprang erroneous ac
pened
stripping without
counsel, and
surprise on McCall’s
complete
whole,
judgment
tion from
position of
placed in the
the latter was
substantially swayed”
the breach
any warning to de-
being obliged without
v.
prosecutor’s commitment. Giles
previously
an issue for which
bate
739, 746
I do not think
prepare.
reason to
no
added)
(D.C.1981) (emphasis
(quoting Kot
was devised
plain error doctrine
750, 765,
States, 328 U.S.
teakos United
such a situation.
(1946)).
1239, 1248,
V reasons, foregoing
For the would re-
verse McCall’s conviction and remand the
case for a new trial. J.M., Appellant.
In re
No. 90-183. Appeals.
District of Columbia Court
Argued Dec. Sept. 6,
Decided presence surely 17. McCall did not contest his been relevant in the this would have quite jury’s assessing Vagnette’s scene. This case is therefore not like the recollection mind in eyewitness typical dispute played. more identification specific as to the role which McCall arguably suggestive which an recognize I also that while Giles was convict- alibi, against against matched or some other robbery, guilty ed of armed McCall was found comparable Vagnette assault, defense. was undoubted- jurors may so that the ly right present when he said that McCall was credited the that McCall was main crime when the was committed. If Vagnette’s testimony, on the other assailant. hand, lineup, had failed to select McCall from a then only unimpeached evidence was the logical point the most to which such a failure participant depicted McCall as an active relevant, namely, would have been whether Hyder, Mark who was not iden- in the assault. before, Vagnette had ever seen McCall was not by Vagnette by Daly, acquit- tified either genuinely at issue in this case. circumstances, ap- these we as an ted. Under scenario, however, ought pellate speculate whether the court not to atypical I do not view this jury proof Vag- viewed the as to McCall disposing prejudice would have as of the to McCall. If concluded, substantially incriminating than the viewing as more nette had did when Hyder Vagnette’s videotape lineup, against identification of was not case McCall encounter, participants then excluded. one of the been