Appeal from the United States District Court for the District of Columbia (No. 01cr00355–01)
Before: Ginsburg, Chief Judge, Garland, Circuit Judge,
and Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Ginsburg, Chief Judge
Opinion for the Court filed by Chief Judge GINSBURG.
A jury found Jerome Washington guilty of (1) conspiracy to commit carjacking and to sell or possess a stolen motor vehicle; (2) four counts of carjacking; (3) four counts of armed kidnaping; (4) four counts of armed robbery; (5) two counts of sale or possession of a stolen motor vehicle; (6) assault with intent to kidnap while armed; (7) assault with intent to rob while armed; (8) and third-degree sexual abuse. Washington challenges his conviction upon the grounds that the district court (1) erred in denying his motion to suppress testimony regarding one victim's out-of-court identification of him; and (2) abused its discretion in denying Washington's motion to deliver his own closing argument. We conclude the district court's denial of Washington's motion to suppress, if an error, was harmless beyond a reasonable doubt; and the district court did not abuse its discretion in denying Washington's motion to deliver his own closing argument. We therefore affirm Washington's conviction.
According to the testimony adduced at trial, Washington and a co-conspirator, Daniel Neal, committed a series of carjackings and attempted carjackings in April 2001. In one instance Washington and Neal, armed with steak knives, carjacked and robbed Katherine Layne and her passenger, Melissa Mayne. After Washington and Neal forced their way into Layne's car and put Mayne in the back seat, Washington drove them to an alley, where the two men stole Mayne's credit cards and Layne's driver's license. Washington then drove Neal and the two women to a parking lot behind a grocery store, near an ATM machine. Washington got out of the car and used Mayne's ATM card to withdraw $300. Washington then released the two women and drove off with Neal in Layne's car.
Nine days later, police detectives showed Layne an array of nine photographs, including Washington's. Layne did not identify any of the subjects as her assailant. Approximately five months later Layne viewed a lineup of seven African– American men, again including Washington. This time Layne said she was not certain, but her assailant ''might be number two,'' that is, Washington. Unfortunately, Washington was the only person who had appeared in both the photo array and the subsequent lineup.
Washington moved to suppress the lineup identification as ''the unreliable product of a suggestive identification procedure.'' The district court denied Washington's motion, without prejudice, noting the prosecution had not yet turned over the photo array it had shown to Layne. The court invited defense counsel to renew the motion ''if, as, or when we get to the array question.'' Tr. 2/7/02, at 17. Defense counsel then argued, ''there's no one else who's displayed to her on both occasionsTTTT [T]hat, to me, would indicate a suggestive identification procedure.'' Id. at 18. The district court stated Washington would ''just TTT have to have [the] record [for appeal] on that point,'' but observed:
[I]t may be that there's a continuum here, that if she had been shown an array in the morning and spent an hour with it, TTT couldn't identify anybody, TTT and that afternoon had been shown a lineup and Mr. Washington were the only person in the lineup who was also in the array, you might have a much better case than you do on the face of the record today when there was a passage of some five months between the viewing of the array [and the lineup]. We don't know how much time she spent with the array. We don't know TTT what the array looked like. And accordingly, the denial is TTT without prejudiceTTTT You will get the array, and you will have a chance to renew the motion if you choose to.
As it happened, the Government could not locate for trial the photo array Layne had been shown nine days after the crime. Defense counsel, in arguing the identification procedure was suggestive, eventually introduced an array of six photographs the FBI had shown to other witnesses. Counsel never renewed the motion to suppress Layne's identification.
On the last day of trial -- after the Government had rested its case and the defense had announced that Washington would not take the stand -- defense counsel informed the district court that Washington ''wanted to do his own closing argument.'' Tr. 5/17/02, at 3. The Government objected, arguing that Washington's request was merely an attempt to argue to the jury while evading cross-examination. The court agreed and denied Washington's request.
On appeal Washington first argues the district court should have excluded testimony regarding Layne's having identified him in the lineup; he maintains the identification process was impermissibly suggestive and the admission of the testimony therefore violated his right to due process of law under the Fifth Amendment to the Constitution of the United States. The Government counters (1) Washington has forfeited this argument because he did not renew his motion to suppress; (2) the lineup was not suggestive; (3) the identification was reliable; and (4) any error was harmless beyond a reasonable doubt. Washington also ...