In re T.C.

SCHWELB, Senior Judge,

concurring:

I join the opinion of the court; indeed, I am its author. I write separately, however, because, notwithstanding my belief that the court has resolved correctly the legal questions presented on appeal, the way in which some of the actual or potential evidence was developed (or, more precisely, not developed) leaves me less than fully confident that justice has been done. If some issues (the existence of which, at least in hindsight, appears obvious) had been more thoroughly explored and presented, the question whether the District proved, beyond a reasonable doubt, that T.C. was one of the robbers would have been closer, and the case might conceivably have been decided differently.

I.

Although the identification evidence against T.C. was formidable — the two victims expressed certainty, at a show-up conducted shortly after the robbery, that T.C. was the gunman — it was surely T.C.’s possession of currency apparently stolen from Amato, namely, three fresh twenty dollar bills, that made the case against T.C. appear to be so overwhelming. As the opinion of the court recognizes, the eyewitness identification of strangers is often problematic, for even when an identifying witness professes certainty, “positive” may mean “mistaken at the top of one’s voice.” Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Testimony, 29 Stanford Law Review 969, 985 & n. 57 (1977); see also Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993) (citation omitted). But if the defendant is identified by the victims, and he is also found in possession of stolen property, then surely, in all but the most unusual cases, it is game, set and match for the prosecution (or, in this juvenile delinquency case, for the District). This is so because the identifications enhance the probative value of the recovery of the fruits of the robbery, and because the respondent’s possession of stolen property tends to virtually eliminate any real question as to the reliability of the identifications. It is therefore reasonable to infer that it was T.C.’s possession of bills apparently identical to those taken from Amato — the same number and the same denomination — that erased any lingering doubt on the part of the judge that T.C. was one of the robbers.

Sometimes, however, there is more to a case than initially meets the eye. The record before us reveals that the three *86fresh twenty dollar bills had not one but two possible sources — the ATM from which Amato withdrew money on the day of the robbery, but also a different ATM from which T.C. claimed to have made a withdrawal on the previous day. My concern in this case is that a significant discrepancy with the theory that the bills came from Amato was never noticed by the defense or by the judge, while evidence that the money found on T.C. had been withdrawn by him, and belonged to him, appears not to have been adequately presented or considered.1

The inconsistency in the District’s evidence as to the origin of the three twenty dollar bills found on T.C. is discussed in some detail in the opinion of the court, and I recapitulate it here only briefly. The government’s first witness, Vincent Cartwright, testified that it was the masked accomplice, and not the gunman,2 who received the bills from Amato.3 Indeed, Cartwright testified that he saw Amato give the bills to the man in the mask. If Cartwright’s recollection was accurate, then it was surely unlikely (though certainly not impossible) that all three bills were in the possession of the accomplice immediately after, the robbery, but that they had come into possession of the alleged gunman at the show-up some twenty-five minutes later.4

The defense sought to show, on the other hand, that the money in T.C.’s possession consisted of three fresh twenty dollar bills that he himself (and not a robbery victim unknown to T.C.) had extracted from an ATM. His trump card in this regard was supposed to be a bank statement, printed out by his father from the Internet, which allegedly showed a withdrawal of $143.00 from T.C.’s account5. T.C.’s father also testified that he found $80.00 in T.C.’s drawer following T.C.’s arrest. This testimony, if true, would support an inference that on the day of the robbery, T.C. was likely to have $60.00 (or slightly more) in his possession, potentially including three fresh twenty dollar bills.

But the defense’s attempt to present this alternative theory regarding the origin of the three bills foundered in its presentation and ended in apparent disaster. Predictably, the bank record which T.C.’s attorney sought to introduce into evidence was excluded as hearsay, for counsel produced no witness from Chevy Chase Bank to authenticate it. Counsel then attempted to present the next best evidence, namely the testimony of a witness who knew that T.C. made the withdrawal. The witness was T.C.’s father, and the following exchange ensued:

THE COURT: Did you personally observe your son taking money out of an *87ATM machine or getting money from some other location?
[J.C.’S FATHER] I did not personally observe it, but I was told by his mother he did.
THE COURT: Hearsay, sustained.

T.C.’s mother, who, as we shall see, was present during at least some of the proceedings, was not called to testify. Even more significantly, the record on appeal contains no explanation as to why no witness for Chevy Chase Bank was called to authenticate, as a business record maintained in the ordinary course of business, the alleged documentary proof that T.C. withdrew the money. T.C. did take the stand on his own behalf, and he stated that he made the withdrawal and took $60.00 with him on the following day, but the defense side of the dispute as to the source of the bills in T.C.’s possession at the time of his arrest was essentially confined to the self-serving testimony of the juvenile accused himself. Obviously, the judge did not believe T.C.’s uncorroborated account. Indeed, in her oral findings, the judge did not even mention T.C.’s testimony regarding his ATM withdrawal.

If a representative of Chevy Chase Bank had authenticated the document reflecting T.C.’s transaction, if T.C.’s mother had testified that she saw him withdraw money from the ATM, and if the document conformed to the defense description of it, then the posture of the issue confronting the judge would have been materially different. Moreover, if the judge had taken note of Cartwright’s testimony that the bills were surrendered to the masked accomplice rather than to the gunman, or if T.C.’s attorney had brought this testimony to the judge’s attention, it would have been more difficult to reject as baseless, and as unworthy of mention in the court’s findings, a defense version supported by a properly identified and authenticated bank statement.

II.

My uneasiness regarding the foregoing apparent shortcomings in the preparation and presentation of T.C.’s side of the case is reinforced by a discussion between the judge and T.C.’s parents that occurred immediately after the judge had announced her decision. This discussion is obviously not evidence, nor is it relevant to T.C.’s insufficiency claim, for the evidentiary record was closed before it arose. Nevertheless, for the reasons set forth below, I believe that it warrants mention in this concurring opinion.

The judge and counsel were considering possible dates for disposition,6 but both T.C.’s father and his mother stated that they would not be in town on the suggested date. The mother explained that they were “going on a cruise from the 11th to the 18th” (of October 2008). The judge inquired whether the parents were proposing to take T.C. with them. The father responded that “[w]e were hoping to, Your Honor,” and he then volunteered his belief in T.C.’s innocence. According to the father, it was hard to believe that his son could have robbed somebody “two blocks from [where] he saw his mother about 8:50.” The father told the judge that T.C. saw his mother teaching his sister to ride a bicycle at about 8:50, and the mother stated that “I was up on the [basketball] court myself for a while.”7 The father then *88assured the judge that T.C. had “never been in trouble at all, he’s been in private school, and he’s been [an] altar boy.” The father found it hard to believe that shortly after watching his mother teach his sister to ride a bicycle, T.C. would commit an armed robbery two blocks away.

Like the trial judge, I am in no position to evaluate the defense trial strategy. But astonishingly, it was not revealed until after the case had been decided that T.C., who came from an intact8 and apparently reasonably well-to-do family,9 had never been in trouble and was an altar boy at his church. Thus, the judge was not apprised of background facts which might well have conveyed a more favorable impression of T.C. to the judge. The defense called no character witnesses, and defense counsel made no attempt to have T.C. or his father 10 introduce themselves to the court or tell the judge who they were in any meaningful way.

The transcript is telling. After asking T.C. to spell his name, the defense attorney immediately turned to the events of the robbery, without asking T.C. a single question about himself. Although T.C.’s father held a responsible position in the District of Columbia government, counsel never inquired about that, or about any other aspect of the father’s background.11 The result was that when determining T.C.’s guilt or innocence, the judge knew little or nothing about him or his family background, and the little that she did know came to her attention more or less by accident, and not as a result of any perceptible defense strategy.

The opportunity of both son and father to introduce themselves should not have been wasted. The trier of fact, whether judge or jury, should not be left to guess who, or what kind of a person, a witness is, especially if the witness is the client (or, here, one of them is the client’s father). I quote a leading primer on trial tactics:

An introduction to the witness’s background should be elicited at the very beginning of the witness’s testimony. This introductory information is also known as pedigree information. Pedigree information often informs the juryc [12] about such matters as the witness’s residence, employment, education and relationship to the other parties in the trial. Though basic, background facts do help build credibility with the jury. The jury will tend to be more trusting of a person they feel they know personally.

1A Cipes, BeRnstein & Hall, CRIMINAL Defense Teohniques § 24A.07 (3) (Matthew Bender, Rev. Ed. 2010) (emphasis added). I had thought that this principle was a “must” in any effective trial strategy, and that trial lawyers would be careful to adhere to it. In this case, however, neither *89counsel for the District nor T.C.’s attorney asked witnesses about their backgrounds or pedigree.

One can have no doubt, after reading the transcript, that T.C.’s parents were profoundly disappointed by the outcome of their son’s case, and that they believed that the system did not work fairly for T.C. For the reasons stated in the opinion of the court, I agree that the evidence was sufficient to support the judgment and that there is no legal basis for reversal. For the reasons stated in this concurring opinion, however, I can appreciate the parents’ concerns, and I find them understandable. There are no perfect trials, but this one could have been better.

. I say "appears” because T.C.'s trial counsel has not had the opportunity to explain why he took (or failed to take) some seemingly appropriate steps.

. The District’s theory was that T.C. was the gunman.

. While Amato thought that he gave the bills to the gunman, he was anything but certain.

. Since the judge participated aggressively in the questioning of defense witnesses regarding possible discrepancies in their testimony, she might have been expected to pursue, on her own initiative, the question who (the gunman or the masked accomplice) obtained possession of Amato's twenty dollar bills. Unfortunately, neither she nor the attorneys noticed the possible contradiction, and the point was not explored.

.As noted in the opinion of the court, this document is apparently not a part of the record. One wonders whether the sum of precisely $143.00 can be withdrawn from an ATM — it is more usual to withdraw a number of $20.00 bills — but this point is not addressed in the record.

. "Disposition” is the juvenile equivalent of "sentencing.”

. The judge, obviously astonished by this turn of events, remarked to the mother: "But you didn't testify about it.” The mother responded, that “[h]e [apparently referring to T.C.'s attorney] didn’t let me.” The judge stated that the mother "had every opportunity to testify and didn't.” The mother responded *88"Well, okay. He didn’t call me.” The judge explained, correctly, that "I don’t have anything to do with your son's trial strategy.”

. Perhaps because most of the young men charged with criminal conduct in this jurisdiction come from single-parent homes, counsel for the District asked T.C. whether he lived with his mother or his father. T.C. replied that he lived with both and that his parents lived together.

. The father held a responsible position, and the family was proposing to go on a week’s cruise. According to the father, T.C. had attended private school. This is of marginal significance, however, for rich folks commit crimes too.

. Or, indeed, any of the defense witnesses.

. The father subsequently volunteered, on his own initiative, where, and in what capacity, he was employed.

12. Although the quoted passage refers to jury trials, the principle applies with equal force when the judge is the trier of fact.