UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Tamm, Circuit Judge, and Matthews,* U. S. Senior District Judge for the District of Columbia.
Appellant was convicted of armed robbery, 22 D.C.Code § 3202, and two counts of assault with a dangerous weapon, 22 D.C.Code § 502. The pertinent facts reveal that at about 2:30 P. M. of September 23, 1969, two men robbed the Arena Liquor Store, taking approximately $600 including some $36 in change. One of the men, subsequently identified as appellant, was described as wearing red striped shirt and pants. About one-half hour later, an eight year old boy told a police officer searching for the fleeing offenders that a strange man, dressed in red striped shirt and pants, had entered his house and offered him a dollar to borrow some of his father's clothes. Appellant was then arrested inside the boy's home, one block from the scene of the robbery, still wearing the same striped shirt and pants, and in possession of $143 including about $12 in change.
On appeal, two contentions merit discussion. Appellant first argues that it was error, even in the absence of request by defense counsel, for the trial court to omit a special instruction on identification. In Macklin v. United States *fn1 the Court stated that "in cases where identification is a major issue the judge should not rely on defense counsel to request so important a charge." *fn2 In the context of this case, however, we are convinced that the trial court's failure to offer such an instruction was harmless. First, any uncertainties in the witnesses' identifications were thoroughly aired by defense counsel on cross-examination *fn3 and emphasized in his summation to the jury. *fn4 Second, and more important, the evidence of guilt was overwhelming even in the absence of the identification testimony. Appellant was apprehended one block from the scene of the crime, wearing the same distinctive clothing that was worn by the robber and in the process of trying to obtain a change of clothing in the home of a complete stranger. In addition, a large amount of change was taken in the robbery and appellant had a large amount of change on his person at the time of his arrest. Given the circumstances of this case, we find the failure to give a special identification instruction harmless.
Appellant's second contention is that he was denied effective assistance of counsel. In this context the applicable constitutional measure of counsel's performance is whether counsel failed "to press an essential or central element of defense." United States v. Hammonds, 138 U.S.App.D.C. 166, 171, 425 F.2d 597, 602 (1970). Here appellant's principal defense was mistaken identity. This defense centered on the fact that the lineup identifications of appellant by both witnesses were susceptible to impeachment. Mr. Alberstadt, the owner of the liquor store, unqualifiedly identified appellant as one of the perpetrators of the crime, but he also incorrectly identified a second man as appellant's companion. Mr. Jones, an employee at the liquor store, was unable to make a positive identification, testifying only that appellant "looked like" one of the men who robbed the store.
Rather than failing to press this element of the defense, counsel's cross-examination of Alberstadt and Jones brought out both these deficiencies *fn5 and he later stressed them in his closing argument to the jury. *fn6 Appellant asserts, however, that the failure to request a specific instruction on mistaken identity vitiates counsel's prior performance and establishes the ineffectiveness of his representation. *fn7 True, we do not reverse the conviction even though no such instruction was given. But we reach that conclusion only because the error was harmless, and not because of the failure to request the instruction. The failure to request the instruction did not, therefore, prejudice the defense and cannot render counsel's otherwise adequate presentation of the mistaken identity defense constitutionally inadequate. *fn8
Accordingly, appellant's conviction is
APPELLATE PANEL: FOOTNOTES
* Sitting by designation pursuant to 28 U.S.C. § ...