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Nos. 92-CF-1124, 92-CF-1485

F 9697-91 i
F 9696-91
IfIJUH 27 ~ ~ 4 Jl
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Appeal from the superior Court of the
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District of Columbia
(Hon. Truman A. Morrison III, Motions and Trial Judge)
(Argued June 15, 1994 Decided June 27, 1994)
Before FERREN and KING, AssociateJudges, and PRYOR, SeniorJudge.
A.ppellants were charged with three counts of assault with
intent to commit robbery while armed, D.C. Code 22-501, -3202
(1989); two counts of assault with intent to kill while armed, D.C.
Code 22-501, -3202; one count of kidnapping while armed, D.C.
Code 22-2101, -3202; one count of mayhem while armed, D.C. Code
22-506, -3202; and one count of possession of a firearm during
a crime of violence, D.C. Code 22-3204 (b). Before trial,
appellants filed m9tions to suppress evidence, which the trial
court denied. A jury convicted both appellants on all counts. We
On August 14, 1991, at approximately 10:00 p.m., Michael
Thomas drove to the vicinity of 3324 Wheeler Road, S.E. to pick up
his mother. Kimberly sutton, Thomas I girlfriend, rode in the
passenger seat, and Montrel Harris, another friend of Thomas, rode
in the back seat. When they arrived, Thomas went to a telephone
booth to call his mother. While Thomas was standing in the phone
booth, a white Cadillac stopped near him. Appellant Porter got out
of the Cadillac, approached Thomas with a gun, and asked him for
money. Thomas told Porter that he had no money. Porter ordered
Montrel Harris out of the back seat of Thomas's car, told him to
put his hands in the air, and patted him down in an apparent search
for money. While Porter held Thomas and Harris at gunpoint,
appellant Swanson entered Thomas'S car, started the car, and told
Kimberly sutton, who remained in the passenger seat, "[ D] on' t worry
about it. I won't hurt you." Swanson asked Sutton whether she or
her friends had any money, and sutton said "no." Swanson then
"told the other guy to take [Thomas] and [Harris] somewhere," and
started driving Thomas's car while pointing a gun at Sutton.
After driving for some time, Swanson picked up appellant
Porter, who wore a purple sweatshirt. Twenty minutes later,
Swanson stopped the car, and he and Porter got out. Sutton heard
four men talking, and then one of the men told Sutton to get out
of the car. The same man searched through Sutton's purse, found
nothing, and then ordered her "to get in the car and just drive."
Sutton got back into the car and drove until she found the police.
Meanwhile, Thomas and Harris had walked across the street to
a field as appellant Porter had commanded them to do. Porter
followed Thomas and Harris and instructed them to lie face down.
Porter again asked Thomas and Harris whether they had any money,
and then Porter stood over Thomas and shot his gun at Thomas.
"[T]he bullet went through [Thomas's] thumb and then [into] the
back of [Thomas's] head." Thomas got up, ran across the field, and
found two police officers. The police arrested appellants Porter
and Swanson laterthat night afterSutton and Thomas had identified
them in show-up identifications.
Appellant Swanson contends that his "Fourth Amendment rights
were violated when he was stopped at gunpoint, arrested without
[probable] cause, and his automobile searched"; he argues that the
trial court accordingly should have suppressed the fruits of this
illegal arrest. We disagree.
Before trial, both appellants moved to suppress out-of-court
show up identifications, and appellant Swanson moved to suppress
ammunition found in his car when he was arrested. The trial court
held a suppression hearing and denied appellants' motions. At the
suppression hearing, the government presented the following
After the shooting, Michael Thomas told the police that his
assailant had been driving "an older white Cadillac [Seville] with
no hubcaps." The police broadcast a lookout for a car of that
description carrying the assailant and "at least two additional
suspects." Fifteen minutes later, Officer Adams spotted an off-
white or very dirty Cadillac Seville, which did have hubcaps.
Officer Adams placed a spotlight on the Cadillac and saw that there
were three black males in the car, one of whom appeared to be
removing his shirt in the back seat. Officer Adams stopped the
Cadillac. He and his partner got out of theirpolice cruiser, drew
their guns, approached the Cadillac, advised the men to show their
hands, and ordered them out of the car. Officer Adams noticed a
round of ammunition on the floor of the car and a purple Champions
sweatshirt, which matched one of the suspect's purple pants, on the
back seat. The officers handcuffed the suspects and conducted a
show-up ten minutes later where Kimberly sutton identified
appellant Swanson as her assailant. The trialcourt found thatthe
police had conducted a valid Teny1 stop, "despite the difference in
appearance in the hub caps and perhaps some [difference in the]
shade of white.,,2
We agree with the trial court that the police conducted a
valid Teny stop and also that the officers did not "search"
appellant Swanson's car, but found the ammunition and the purple
sweatshirt in plain view. We further conclude that the conduct of
the police in detaining appellant Swanson for a show-up
identification did not convert the stop into an arrest.
The lookout broadcast was for a white Cadillac Seville with
no hubcaps carrying at least three black male suspects. Although
appellant Swanson's car had hubcaps and appeared to be either off-
white or very dirty, appellant's car matched the lookout
description of a Cadillac Seville with three black male occupants,
and, in addition, the police observed one of the occupants
suspiciously removing his shirt. Considering the "totalityof the
circumstances," Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991,
(en banc), appellant Swanson's car and its occupants sufficiently
matched the lookout description and were located soon enough after
the shooting to give the police an articulable suspicion that
justified stopping the car. See Turner v. United States, 623 A.2d 1170
(D.C. 1993) (police officer had articulable suspicion justifying
stop of defendant's car despite fact that license plate did not
match radio broadcast, given officer's observation of other
activity consistent with the lookout); Groves v. United States, 504 A.2d
602 (D.C. 1986) (valid Teny stop where informant told police that
driver in white-over-green Pontiac driving down particular street
was armed with gun, and police observed defendant in a white-over-
green Monte Carlo).
We also agree that the record supports the trial courtI s
finding that the police discovered the ammunition and purple
sweatshirt in plain view during a valid Teny stop, and that the
police thereforedid notviolate Swanson's FourthAmendment rights.
See Gomez v. United States, 597 A.2d 884 (D.C. 1991) (no Fourth
Teny v. Ohio, 392 U.S. 1 (1968).
2 The trial court said that although Officer Adams testified
that he had "searched" the car, he was in fact "standing outside
the car shining his flashlight inside and anything that he can see
with the flashlight in the dark by shining it into a car is in
plain view as our cases make clear and it is not a search from my
understanding of the law."
Amendment violation where, during stop, officer saw contraband
inside car with aid of flashlight).
Finally, we conclude that the conduct of the police in
detaining appellant Swanson for a show-up identification did not
convert the stop into an arrest, since the show-up occurred only
ten minutes after the initial stop and appellant was not
unnecessarily detained for an extended period of time. See In re
M.E.B., 638 A.2d 1123 (D.C. 1993) (police conduct in handcuffing
defendant, placing him in rear of police vehicle, and driving him
from point where he was stopped on street to other locations for
identification purposes, did not convert Terry stop into arrest
requiring probable cause).
In sum, the record supports the trial court's ruling that the
police did not illegally arrest appellant Swanson. Moreover, the
trial court did not err in admitting the ammunition, the purple
sweatshirt, and testimony regarding the show-up identification of
appellant Swanson by Kimberly Sutton.
Appellant Porter contends that the evidence was insufficient
to convict him of aiding and abetting the robbery and kidnapping
of Kimberly Sutton because the evidence showed that Porter "went
in the other direction when instructed to 'take Michael [Thomas]
and Montrel [Harris] somewhere.'" [Appellant Porter's briefat 13]
We disagree.
On this record, the government presented sufficient evidence
to establish that appellant Porter was "involved in the criminal
activity to the extent that he in some sort associate[d] himself
with the venture, thathe participate[d] in itas in something that
he wish[ed] to bring about, [and] that he [sought] by his action
to make itsucceed." Taylorv. United States, 601 A.2d 1060,1063 (D.C.
1991). The jury could have found that, by removing Thomas and
Harris from Sutton's car and holding them at gunpoint, appellant
Porter intentionally facilitated Swanson's efforttorob and kidnap
sutton. See Leonard v. United States, 602 A.2d 1112, 1115 (D.C. 1992)
(sufficient evidence of aiding and abetting murder where appellant
distracted victim in order to give shooter a clear opportunity to
shoot). The jury could also have found -- from the fact that
appellant Porter complied with Swanson's commands and also from the
fact that Swanson asked Sutton whether her friends had any money
-- that Porter had been involved in the common objective of robbing
the group. Finally, the fact that Swanson picked up appellant
Porter after driving around with sutton for some time shows a
direct connection between Porter and the kidnapping and also
indicates that Porter had been associated with the entire series
of crimes'that occurred. See Settles v. United States, 522 A.2d 348, 358
(D.C. 1987).
Appellants Porter and Swanson contend that the evidence was
insufficient to convict them of mayhem while armed because the
government failed to prove that Montrel Harris suffered permanent
injuries as a result of the assault. See Edwards v. United States, 583
A.2d 661, 668 (D.C. 1990) (tiThe elements of mayhem are: (1) that
the defendant caused pennanentdisabling injury to another; (2) that he
had the general intent to do the injurious act; and (3) that he did
so willfully and maliciously."). We disagree.
The government presented abundant, not merely sufficient,
evidence that appellants caused "permanent disabling injur[ies]"
to Montrel Harris. First, Harris testified that the assault
limited his use of his hands. He stated that he did not play
sports anymore and, more specifically, that he could not play
basketball as a result of his injuries because he no longer could
grip objects as large as a basketball. Second, a doctor who
reviewed Harris's X-rays testified that Harris suffered brain
damage be9ause the bullet and some bone chips from Harris's skull
were shattered into his brain tissue. The doctor further testified
that the dead brain tissue had to be removed through surgery and
that she did not think brain tissue ever regenerated. Third,
Harris testified that at the time of the trial, he was receiving
speech and hand rehabilitation. The jury could have inferred from
this continuing medical treatment that Harris's injury was
permanent. SeeWbitaker, 616 A.2d 843, 855 (D.C. 1992). In light of
the foregoing evidence, we conclude "that there was a sufficient
evidentiary predicate for a reasonable juror to find that something
[about Harris' injuries was] permanently disabling." Whitaker, 616
A.2d at 855 (internal quotations omitted).
Accordingly, it is
ORDERED AND ADJUDGED that the judgment appealed from be
William H. Ng
Clerk of the Court
Nos. 92-CF-1124 &
Copies to:
Honorable Truman A. Morrison III
Clerk, Superior Court
Alake Johnson-Ford, Esquire
1730 K St. ,NW, suite 304
Washington, DC 20006
Thomas T. Heslep, Esquire
419 7th Street, NW, Suite 401
Washington, DC 20004
John R. Fisher, Esquire
Assistant United States Attorney