Clark v. United States

MACK, Senior Judge,

dissenting:

In the recently decided case of In re R.H.M., 630 A.2d 705 (D.C.1993), this court reversed an adjudication of delinquency because the evidence was insufficient to identify the defendant as the perpetrator of the crime. The authoring judge of the court’s opinion noted an interesting statistic; this was only the second such case since Crawley v. United States, 320 A.2d 309 (D.C.1974) (decided almost twenty years ago) to reverse on these specific grounds. Although the defense of mistaken identity is asserted in a vast number of criminal cases, it is well-nigh axiomatic that identification by one eyewitness is sufficient to support a conviction. See In re B.E.W., 537 A.2d 206, 207 (D.C.1988). Yet in numerous seminars and training sessions for lawyers and judges alike, experts have demonstrated, time and time again, the potential fallibility of eyewitness identifications.

To the extent to which the issue before us now is about identity at all, it is about the quality — not the quantity — of identification testimony. It is about the quality of cross-racial identification and the exclusion of a photo array that would have thrown light on that quality. Thus, at trial, the government, faced with the fact that the victim of the shooting had initially identified the photos of two men other than Mr. Clark as the assailant, sought to minimize the impact of the difficulty by introducing testimony that in the “mug” photo array “all these people looked alike.” The defense, after having initially objected to the introduction of the mug shots for the obvious traditional reason, thereafter sought to introduce the photo array as evidence to show that all of the men did not look alike. The government did not oppose this request. The trial court, however, ruled that the evidence must be excluded for reasons that the government does not *85 attempt to defend at the appellate level. 1 It is the exclusion of this photo array that appellant points to as constituting an error affecting a central issue at trial. I agree with this position. I also agree that this exclusion could not have been harmless error. As appellant’s counsel succinctly argued before this court, if only one of twelve jurors, after looking at the photo array, had been left with a reasonable doubt as to the reliability of identification, counsel would not have been before the appellate court.

Today my colleagues correctly point out that the discretion generally vested in the trial court with respect to the admissibility of evidence must be weighed against the constitutional rights of a defendant to confront witnesses and to present a defense. See Bassil v. United States, 517 A.2d 714, 716 (D.C.1986). However, their disposition of this case does not reflect the recognition that the inherent component of the Sixth Amendment right to confrontation can only yield to such discretionary judicial exercise as may be necessary to prevent such tactics as the harassment and humiliation of witnesses, prejudice, confusion of issues or repetitive, cumulative or marginally relevant questioning. See Scull v. United States, 564 A.2d 1161, 1164 (D.C.1989). Here the trial court’s exclusion of the photo array has deprived appellant of the right to challenge critical testimony going to a central issue — identification. The alleged unreliable testimony of a witness is never a collateral issue, even if extrinsic (which it was not here) to issues raised on direct examination. Id. at 1165 . The photo could not have confused the issues, or humiliated the witnesses and, being “the best evidence” to challenge reliability could not be termed to be cumulative, repetitive or marginally relevant. My colleagues, apparently in conceding that exclusion was error have termed the error “harmless,” relying in large measure upon the fact that at trial defense counsel reversed her position as to the admissibility of evidence previously objected to — an approach, which when aired at oral argument, drew the suggestion from appellant’s counsel that his client, because of the prosecutor’s tactic, had been confronted with a “Hobson’s Choice.” I take solace in the fact that my colleagues are reluctant to endorse a hard and fast rule of estoppel as against a defense counsel who has reversed a position at trial, but I am deeply distressed at their establishment of criteria for defense counsel by which the Sixth Amendment right of his or her client is to be judged. The error of exclusion, if any, is that of the trial judge. The trial court’s ruling here cannot survive the test of harmlessness. There is no rule compelling a trial court to exclude defense evidence on the basis of wholly distinct evidentiary limitations imposed to protect the defendant; a ruling granted to protect a defendant should not be used to prevent him or her from showing the unreliability of a witness. In order to affirm such a ruling as harmless, we must be satisfied that an appellant would have been convicted, not that he could have been convicted. Id. at 1166 .

Turning to the circumstances here, one needs no explanation as to why defense counsel initially objected to the introduction of mug shots into evidence. She changed her position only after the government introduced evidence to the effect that all of the men in the photo array looked alike (in an effort to bolster the questionable identification by the victim) and after the need for the exclusion of the photo had dissipated because of volunteered improper statements by government witnesses that tied appellant to criminal activity. Before this court, the government, which did not object at trial to the admission of the photo, now argues that admission would have been prejudicial to the government and would not have helped in any event.

I find it difficult to conclude that the admission of the photo would not have helped the defense. Even without viewing the array, I cannot accept as a foregone conclusion that not one juror, viewing the array and taking the oath seriously could have simply *86 dismissed the misidentifications as irrelevant beyond a reasonable doubt.

As appellant’s counsel argued before us, this case is about cross-racial identification in the following context:

Into a black urban crime setting a white victim drives her boyfriend to purchase drugs from a black supplier who was not Mr. Clark (whom she initially had difficulty identifying). The other identifications are made by the white boyfriend who used the black supplier to identify appellant as the assailant, and the black supplier who is arrested, allegedly beaten, charged with the crime, and given immunity for his testimony against appellant. See Scull, supra, 564 A.2d at 1167 (plausible that a jury would have discredited testimony of government witnesses if appellant had been allowed to impeach them as biased by their perceived need to curry favor with the government to protect their own liberty interests).

To this extent, at least, the government’s case was not a strong one and identification became a critical issue. MMdentification could have influenced the outcome of the-trial.

Moreover, I question the government’s argument at this level that admission of the photo would have prejudiced its case. As noted, the government voiced no objection at trial. It spells out no prejudice here 2 but simply assures us (at oral argument) that we can look at the photo array to determine whether its exclusion from the scrutiny of the jury was per se reversible error. The fallacy of this assurance is evident.

Finally, I strongly question whether we, as an appellate court, can adopt a viable standard of review that identifies a defense lawyer’s change of evidentiary tactics as a criterion that can outweigh the right of a defendant to confront the witnesses against him.

I respectfully dissent.

. The trial court justified its ruling on the grounds that (1) another trial court had, on a motion to suppress, rejected the argument of suggestivity, and (2) that the parties had agreed to exclude the photo.

. PragmaticaEy speaking, the government is always prejudiced when it loses a criminal case. Yet the government and its client (the public) are the beneficiaries when a defendant is granted a fair trial.

Ironically here, it is appellant who candidly supplies a pragmatic reason for potential prejudice to himself and to the government. Pointing out that eleven of the twelve jurors were black, he cites studies that all people are better able to recognize and identify individuals of their own race than individuals of other races. See S. Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L.Rev. 934, 938-46 (1984) (and sources cited therein); S. Platz & H. Hosch, Cross-Racial/Ethnic Identification: A Field Study, 18 J.App’d.Soc.Psychol. 972 (1988) (and sources cited therein); Note, Hearsay and Relevancy Obstacles to the Admission of Composite Sketches in Criminal Trials, 64 B.U.L.Rev. 1101, 1135 & n. 185 (1984) (and sources cited therein).