*1 KELLY, NEBEK- Before KERN ER, Judges.
NEBEKER, Judgе: appellant’s which she photo. Ap- selected pellant’s photograph was included in this Appellant seeks to overturn his convic- array since during Detective Reeder’s in- burglary tions for while armed armed vestigation he learned that Mrs. Chambers robbery by attacking procedures certain appellant had seen getting into a small red by government during and followed usually parked auto that was her near resi- prior argues pretrial pho- He trial. area, dence. In his surveillance of the De- tographic corporeal identifications tective Reeder located the car and traced it and that impermissibly suggestive were appellant’s Knowing idеntity, subsequent lineup , in-court tainted picture ten-photo he his in the ar- urges He also identifications. ray. with government impermissibly interfered presentation At of trial the was unable person appellant produce had arresting a whom array this second from which Mrs. just planned as an alibi witness be- to call Chambers her made identification bеcause testify. she was to We discuss pho- fore Detective had Reeder returned those opinion. in each of this relevant facts tos to his book. He did describe them conviction is affirmed. judgment “Metropoli- of his testimony at trial as
tan [Department] photo- Police official graphs,” depicting black males. appellаnt Mrs. Chambers also identified witness, complaining Mrs. Alberta on photo a date after had selected his she Chambers, manager of the resident a any lineup him when she saw house, apartment northwest before through her window as he stood across the testified that she was accosted at the door talking street Detective Reeder. The with ap- apartment of her midafternoon her, speak detective had come to but who, pellant pistol, armed with a demanded recognized appellant the street en- on money. living backed her into her He gaged him conversation. After this en- room, pistol, her in the head with his struck counter, the detective went to Mrs. Cham- death when she and threatened her with apartment bers’ and asked her if she had money. Finally, he she had no contended seen him the street and if she across had pocketbook found her and removed some talking seen him with another man. She incident, according from it. The $50 “yes” Detec- questions. answered to both her, five occurred in “ex- took minutes and asked, tive Reeder then “Was that light during had cellent” which time she man?”, young replied, and she “[T]hat’s opportunity” appel- “continuous view him.” appellant previous lant. She seen on apart- occasions when he had come to the testimony, During her Mrs. Chambers building ment to visit friend who also photograph appellant was shown а of Although lived there. at first hesitant after his She which was taken arrest. police light call the of threats wearing in the identified the coat he was herself, reprisal of against her children and picture by her just worn as like coat reported she the crime within a few minutes attacker. gave description a detailed of the rob- ber. Apрellant argues that the on-the- Reeder, appellant
One street of and Detective assuming respon- meeting Detective sibility investigation Reeder in full view of Mrs. Chambers robbery, of this was so first showed was across the street at her window large Mrs. Chambers a book deprive ap photographs unnecessarily suggestive of as to suspects she was un- but Thereafter, claims this pellant process. able to make an due He identification. presented array meeting unjustified an an one- photos of ten from amounted to ap- not aware that showup questions witness at trial but was man and that the Detec pellant plead an alibi as going Reeder asked Mrs. Chambers about tive Be- Super.Ct.Crim.R. 16-1. meeting prompted her iden defense. See to the conclude, reaching called Mrs. Williams tification. We fore on a a warrant3 question purely she was arrested on whether this fortuitous stand upon the issue,1 justice sighting charge of obstruction involves constitutional Detective complaint Mrs. danger was no of misidentifica there *3 previously tion. Mrs. seen Reeder. Chambers appellant apartment in build her own her complainant began after Soon ing on several occasions before the attack hearing, suppression testimony day very and on the of the offense. See judge: trial prosecutor represented to the Inge, (D.C.
United
v.
494
1102
States
F.2d
Anderson,
Cir., 1974);
story
United States v.
from Mrs.
complete
get the
I didn’t
1974).
(D.C.Cir.,
which was couched the most of two arrest had been obtained terms. presenta- Prior to the parties. unidentified case, de- tion of the defense
II
mar-
deputy
attorney
from a
learned
fense
arrested.
had been
that Mrs. Williams
shal
occurring during
The events
the court:
The
advised
give
allegation
that
rise to the
that
interviewed Mrs.
appellant
precluded
presenting
Reeder
was
from
companion
neighbor and
Mr.
spring
from a defense witness
White [her
point remarks
and at that
at the
threatening Mrs. Chambers outside
trial]
learned
threats;
I think he
because
Appellant’s wit
were
courtroom
trial.2
them
alibi,
interview with
from his
[Mrs.
ness as to
Mrs. Delores
either one
ap
Mr.
Chambers and
purportedly going
testify
was
that
White]
hallway
people out in the
apartment during the
all
these
pellant was in
her
companions] said
government
and two
time
the offense. The
[Williams
White, “We’re
to be his
and Mr.
knew that Mrs.
was
Mrs. Chambers
subject,
proaehed by
States, D.C.App.,
Doe
Jane
the above
322
1. See Bowler
concurring).
Delores,
(Nebeker, J.,
(1974)
“that
I’m
stated
known as
who
A.2d
you
big-bellied
going
get
son-of-
description
happened
as shown
of wliat
going
you [m f—]
catch
and I’m
bitch
—
support
of the warrant
on thе affidavit
you.”
out of
and beat
the [s-]
arrest was:
p.m.
time
at 1:30
The trial started
Chambers,
complainant,
re-
Alberta
according
the affidavit
threat
hallway
waiting
ports
while
in the
p.m.
2:15
B-103,
[of]
front
courtroom
ap-
2, supra.
Kenneth AV.
she was
3.See
note
the case
Swann
know;
gonna get you.” That’s all
I
The fact
witness at
anything
haven’t had
to do with that.
tempted an
justice by
obstruction of
fully
cognitive and volitive threat
to the com
assigned
witness Williams was
plainant makes this case different
from
counsel
subsequently
stated to the trial
by appellant
those relied on
and our dis
thgt
he had advised her “to invoke
senting colleague. Here the self-incrimi
the Fifth
Amendment” if
called
nation
springs
separate
from a
testify.
her to
After some
colloquy
further
completed
criminal act of the witness
counsel,
announced
having
impact
a direct
on the trial then in
that he was satisfied that she was entitled
progress.
It was
not the
but
to the privilege. Appellant’s trial counsel
the witness who caused the
privi
claim of
decided that he would not call Mrs. Wil-
lеge.
quite
It is
a different case when the
liams as a witness so as to avoid the tacti-
court (Webb
Texas,
U.S.
S.
cal disadvantage
having
her invoke the
Ct.
817
bery charge
against
by
with,
made
him
begin
the com-
To
there
dispute
can be no
plainant.
testimony
the
of Williams was crucial
defense and that he had a
The arrest of the
defense witness
right
present
constitutional
by
assigned
was
effected
detective
through
testimony
of all his witnesses.
knowledge
the case
either
Texas,
14, 19,
388 U.S.
87
Attorney
Assistant
United States
So,
S.Ct.
The
of the
what had
courtroom,
occurred outside the
witness,
only
significant: his
prosecutor
case was
for the
then to have fully re-
testify she
prepared
ported
who was
judge
to the trial
on the record in
place
open
with him at some
other
court, and,
had been
finally, for the court to
rоbbery,
the
the
determined
than
scene of
have
sternly
dealt
with the witness
upon
attorney
conferring with her own
Williams.2
present
Given the
unsatisfac-
tory
after arrest
to invoke the Fifth Amend-
physical
many
conditions of
of our
appel-
if she
ment
was called to
leading inevitably
courtrooms
to co-min-
attorney,
Appellant’s
acutely aware
lant.
gling of witnesses from both
sides
the
credibility posed of
of
hallways
rooms,
the narrow issue
waiting
potential
the
by complainant’s
jury’s
the
resolution
for undue interference with witnesses is
the
of
his client’s denial
assertion1 and
substantial and must be met with firm and
as a
of tactics
robbery,
decided
immediate action on the
of the trial
matt.er
be-
“the Fifth”
However, here,
the
invoke
court.
court,
to have
witness
the
in those
presence
jury.
jury
found
literally
fore the
almost
contemptuous
charged.
occurred,
guilty as
conduct
was not informed that a
alleged
only eyewitness
right
present
his
1.
was the
She
stitutional
to be
at
the trial.
Allen,
337, 343,
Illinois v.
crime.
U.S.
90 S.Ct.
(1970). However,
mate event to the witness’s claim self-incrimination was her illegal
own act.” With all deference
analysis omits the critical fact that the ar-
rest of outside courtroom the detective knowledge without the of ei- PATTON, Appellant, L. Frank prosecutor ther was the event triggered which Certainly her claim.
may be speculated, majority appears as the STATES, Appellee. UNITED do, that even if Williams had not been No. 8116. arrested she might still have invoked the Fifth Amendment on the stand while Appeals. testi- District of Columbia Court fying if the cross-examined her Sept. 25, Submitted about reportedly what she said to com- Oct. Decided plainant However, outside the courtroom. situation, in would not position, here,
have been as it is *6 her,
having arrested thereby eliminating key
her as a defense witness. I believe we required
are in this case to treat what
rather than what have been when might
we are determining uphold whether to
prison sentence.
Since witness Williams was essential defense at and since the important I think it unable to to make clear that The detective in this case was prosecutor’s beyond produce array photographs conduct of ten this case was at trial reproach. Early complainant in the trial from which made an identifica he alerted the possible court to tension between the witnesses He had failed to abide tion of applicable requiring Department of the two sides. After the arrest of Order urged vigor photos keeping groups with commendable candor and shown of exact hearing presentation hold an immediate witnesses for court. inquire exactly Department Metropolitan See on record to into what had Police General transpired complainant 304.7, 1(G) (2) (Dec. 1, 1971). between Order Part entirely Unfortunately, —still not clear. would leave the determination of what action go declined into what he characterized “destruction-of-the-evidence” situation upon as a “collateral matter.” retrial. warranted to the trial understandably Perry, U.S.App. See have Courts been reluc- United States overreaching 89, 94-95, 100, tant to criticize conduct on the D.C. F.2d 1062- part prosecutors. responsible (1972). Fair and ac- tion on their merits also. notice