Evidence insufficient to support convictions, despite complainant’s positive identifications of respondent, where complainant explicitly stated that a photograph of respondent taken hours after the incident was not a picture of his assailant.

In re A.W., No. 11-FS-1583 (decided June 12, 2014)

Players:  Judges Glickman, Schwelb, and King.  Opinion by Judge Schwelb.  Dissent by Judge King.  Shirin Ikram, Esq., for A.W.  Trial judge: Milton C. Lee.

Facts:  The complainant was riding on the metro and had his cell phone out, texting, when four young people boarded at the Chinatown stop.   A few minutes and two stops later, when the train arrived at Union Station, the four youths exited the train and as they did, one of them grabbed the complainant’s phone.  The complainant held onto his phone, and in the ensuing struggle somebody—not the person who grabbed his phone—punched him in the side of his head and knocked him to the ground.  The group then ran off, leaving the cell phone behind with the complainant.  In reporting the incident to officers, the complainant described the group of four individuals, and specifically described the would-be phone snatcher as having short hair and almond-shaped eyes; he also described a 6-foot-tall transgendered person with a muscular build and a curly wig, but specifically indicated that the transgendered person was not the one who tried to steal his phone. 

Later that evening, officers found and questioned a group of four youths who matched the complainant’s description outside the Chinatown metro stop.  According to one of the testifying officers, appellant A.W. told the officer “we didn’t do anything to that white man.  He fell on his own.  We didn’t do anything to that man at Union Station.”  At that point, the officer took a photograph of A.W., which showed A.W. with long curly hair.  The officer later interviewed A.W., who indicated that he was on the train with the complainant but that he was not the one who punched or tried to rob the complainant.  Ten days after the incident, the complainant was shown a photo array that included a two-year-old photo of A.W., whom he identified as his assailant, commenting on his distinctive almond-shaped eyes.  At the bench trial, the complainant also made an in-court identification of A.W. as the person who tried to steal his phone.  However, when shown the photograph that an officer took of A.W. two-and-a-half hours after the alleged assault, the complainant stated, “that’s not the person who took my phone,” commenting that A.W.’s eyes in that photo were “very round and open,” and not the almond-shaped eyes he found so distinctive.

The judge acquitted A.W. of aggravated assault but found him guilty of assault with intent to rob and misdemeanor destruction of property, citing as support the complainant’s in-court identification of A.W. and the positive identification he had made ten days after the incident.  The fact that the complainant specifically stated that the person in the photograph of A.W. taken two-and-a-half hours after the incident was not his assailant did not sway the judge, who reasoned that A.W. may have gone home and made efforts to change his appearance, for example, by putting on a wig. 

              

Issue: Whether the evidence was insufficient to prove assault with intent to rob and malicious destruction of property, where the complainant positively identified the respondent in court, but also explicitly stated that a photograph of the respondent taken mere hours after the incident was not a picture of his assailant.

Holding:  The evidence was insufficient to substantiate the convictions.  The court begins by briefly recapping the “extensive judicial experience and scholarly research” on eyewitness identifications, noting the difficulties with convictions based on a single eyewitness’s identification.  The heart of the court’s opinion, though, is that when the complainant was shown the photograph of A.W. taken just two-and-a-half hours after the incident, he “without the slightest hesitation, . . . emphatically and spontaneously volunteered that ‘that’s not the person that took my phone.’”  Also, the Metro surveillance footage taken contemporaneously with the incident showed A.W. as having long, curly hair, not the short hair the complainant ascribed to the phone snatcher.  Given all that evidence, and acknowledging that “the reasonable doubt standard of proof is a formidable one,” the court held that the record could not support the convictions.  Judge King dissented, concluding that “there was much to support the trial judge’s conclusion that the identification was reliable” and that the complainant’s statement that the photograph of A.W. did not depict his assailant was “not decisive.”  JD.

Read the full opinion here.