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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 31, 2003 Decided January 6, 2004
No. 02-3077
UNITED STATES OF AMERICA,
APPELLEE
v.
JEROME D. WASHINGTON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00355–01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee and
Shawn Moore, Assistant Federal Public Defenders, entered
appearances.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J.
Tourish, Jr., and Stephen J. Pfleger, Assistant U.S. Attor-
neys.
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Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: 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 argu-
ment. We conclude the district court’s denial of Washing-
ton’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 convic-
tion.
I. Background
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.
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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, Washing-
ton 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 proce-
dure.’’ The district court denied Washington’s motion, with-
out 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.
Id. at 18–19.
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 proce-
4
dure 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 argues — and the Government
denies — he had the right, under the Sixth Amendment to
the Constitution of the United States, to deliver his own
closing argument.
II. Analysis
Preliminarily, we reject the Government’s argument that
Washington did not properly preserve his objection to the
admission of Layne’s identification. Upon denying Washing-
ton’s motion to suppress, the district court invited him to
renew the motion ‘‘if, as, or when’’ the Government provided
him with the photo array it had shown to Ms. Layne. The
Government never produced the array; it cannot now fault
Washington for failing to renew his motion.
A. Suggestive Identification
In considering whether evidence of an identification runs
afoul of the Due Process Clause, we must first determine
5
whether the identification process was impermissibly sugges-
tive. See Neil v. Biggers, 409 U.S. 188, 197 (1972). If it was,
then the court must ‘‘examine whether, under the totality of
the circumstances, the identification was sufficiently reliable
to preclude a substantial likelihood of misidentification.’’
United States v. Washington, 12 F.3d 1128, 1134 (D.C. Cir.
1994) (citing Manson v. Brathwaite, 432 U.S. 99, 113–16
(1977)). To that end, the court must consider ‘‘the opportuni-
ty of the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of his descrip-
tion of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the con-
frontation.’’ Id. (citing Biggers, 409 U.S. at 197). The identi-
fication may be admitted if its ‘‘reliability outweigh[s] its
suggestiveness.’’ Id.
Washington argues the identification procedure was imper-
missibly suggestive and the district court therefore erred in
foregoing ‘‘any inquiry into reliability.’’ To be sure, the use
of a photo array prior to a lineup identification may be
impermissibly suggestive where there is only one ‘‘repeat
player.’’ See Simmons v. United States, 390 U.S. 377, 383–84
(1968) (use of photographs prior to lineup may create risk of
false identification because witness ‘‘is apt to retain in his
memory the image of the photograph,’’ but ‘‘convictions based
on eye witness identification at trial following a pretrial
identification by photograph will be set aside TTT only if the
photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification’’); Foster v. California, 394 U.S.
440, 443 (1969) (identification obtained after victim viewed
defendant in two lineups and one-on-one violated due process
where defendant was only person in both lineups); United
States v. Sanders, 479 F.2d 1193, 1197–98 (D.C. Cir. 1973)
(‘‘In the totality of the circumstances TTT the suggestive
confrontations of the witnesses with the photographs and
lineup gave rise to a very substantial likelihood of irreparable
misidentification’’). In this case, however, we need not decide
whether the district court erred in failing to evaluate the
reliability of the identification under Neil v. Biggers because
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the admission of Layne’s testimony was harmless beyond a
reasonable doubt.
B. Harmless Error
‘‘Error is harmless if it appears ‘beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.’ ’’ United States v. Green, 254 F.3d 167, 170 (D.C.
Cir. 2001) (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). ‘‘[I]t is the evidence before the jury that determines
whether a conviction survives harmless error review.’’ Id. at
173.
Here, there was abundant evidence of Washington’s guilt
apart from Layne’s identification. Co-conspirator Neal testi-
fied in detail about Washington’s participation in the carjack-
ings and attempted carjackings. Another co-conspirator,
Shekita Williams, testified that Washington had told her he
had robbed Layne and another woman. Significant physical
evidence connected Washington to the crimes of which he was
convicted. For example, a credit card belonging to one of the
victims was found in Washington’s pocket at the time of his
arrest. Upon searching the motel room shared by Washing-
ton, Neal, and Williams police found other physical evidence,
including two steak knives, Layne’s driver’s license, and
Mayne’s ATM card.
Moreover, the potential impact on the jury of Layne’s
lineup identification was slight because it was, at best, equivo-
cal; she said only that her assailant ‘‘might be number two.’’
Washington’s counsel further denigrated Layne’s identifica-
tion, suggesting both in his cross-examination of Layne and in
his closing argument that it was the unreliable product of a
suggestive procedure. Finally, in its closing argument the
Government did not rely substantially upon Layne’s identifi-
cation to make its case. The prosecutor devoted most of his
closing argument to a discussion of the testimony of Neal and
Williams, mentioning Layne’s identification only briefly.
In these circumstances it appears ‘‘beyond a reasonable
doubt’’ that admission of Layne’s out-of-court identification of
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Washington ‘‘did not contribute to the verdict obtained.’’
Chapman, 386 U.S. at 24.
C. Request to Deliver Closing Argument
A person accused of a crime has an absolute right, under
the Sixth Amendment, to represent himself only if he asserts
that right before trial. See United States v. Dougherty, 473
F.2d 1113, 1124 (D.C. Cir. 1972) (‘‘[T]he fundamental right to
conduct the case pro se is one that must be claimed timely,
before the trial begins’’); see also United States v. Bishop,
291 F.3d 1100, 1114 (9th Cir. 2002) (‘‘A demand for self-
representation is timely if made before meaningful trial pro-
ceedings have begun’’). A defendant does not have a right to
combine self-representation with representation by counsel.
See United States v. Tarantino, 846 F.2d 1384, 1420 (D.C.
Cir. 1988) (no constitutional right to hybrid representation);
cf. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (‘‘A defen-
dant does not have a right to choreograph special appear-
ances by counsel’’). We therefore review only for abuse of
discretion the district court’s denial of Washington’s motion to
deliver his own closing argument. See Dougherty, 473 F.2d
at 1124 (‘‘When the pro se right is claimed after trial has
begun, the court exercises its discretion’’).
The district court clearly did not abuse its discretion in
denying Washington’s request, which came at the close of
trial, after the Government had rested its case and the
defense had announced that Washington would not testify on
his own behalf. In view of the timing and the specific nature
of the request — not to take over from counsel for the
remainder of the case but rather ‘‘to do his own closing
argument’’ — the district court was reasonably concerned
with preventing Washington from ‘‘basically TTT testify[ing]
without having to be cross-examined.’’ Tr. 5/17/02, at 4; see
Bishop, 291 F.3d at 1114 (affirming trial court’s denial of
defendant’s request to deliver closing argument).
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III. Conclusion
For the foregoing reasons, Washington’s conviction is
Affirmed.