Middleton v. United States

HARRIS, Associate Judge:

Appellant was convicted in a jury trial of armed robbery, two counts of assault on a police officer while armed, and petit larceny.1 D.C.Code 1973, §§ 22-2901, -3202; 22-505(b); and 22-2202. He alleges four grounds of error: (1) the trial court’s incorporation of a notion of reciprocity in its administration of the discovery process; (2) the scope of his cross-examination by the prosecutor concerning a prior offense, and the court’s response thereto; (3) the exclusion of expert testimony regarding the" statistical frequency of his orthodontic configuration; and (4) the admission of in-court identification testimony by one of the assault victims who had been unable to identify appellant before their confrontation in the courtroom. While we conclude that the trial court erred in certain of its discovery rulings, we deem the error to be harmless. We find no merit in appellant’s other contentions, and affirm his convictions.

I

At about 3:00 p. m. one afternoon, two men, one armed with a handgun, robbed a carryout shop in Northeast Washington. While the gunman held the customers and employees at bay, his companion jumped oyer the counter and rifled the cash register, placing the money in a white bag bearing the word “Cavalier.” Minutes after the pair had fled the shop, Metropolitan Police Officers Larry Johnson and Timothy Wilson spotted a man matching the description *113which they had heard on their radio at a bus stop several blocks from the scene of the robbery. The suspect was carrying a bag marked “Cavalier.” When the officers approached the man, a struggle developed for the bag. The suspect’s companion joined the fracas, and attempted to fire a pistol point-blank, first at Wilson and then at Johnson, but the weapon failed to discharge.2 Although the two men managed to escape, the officers recovered the gun, the bag containing the cash from the shop, and a wallet belonging to one of the robbery victims. The next day Officer Johnson and one of the customers were shown an array of photographs; both identified appellant as the gunman.

A pretrial hearing was held at which two customers who had been in the shop at the time of the robbery and Officer Johnson described the relevant events and their respective identifications of appellant.3 Following the testimony of one customer, Patricia Bennet, defense counsel made a request for any material which might be subject to the discovery provisions of the so-called Jencks Act. 18 U.S.C. § 3500 (1970). Although the government surrendered a number of documents (see footnote 5, infra ), it countered with a request that the defense produce the report of its investigator who had interviewed several prospective government witnesses. The court, expressing a “doctrine of mutuality arising out of the Jencks Act,” agreed that discovery should be reciprocal and declared that appellant’s receipt of Jencks Act materials would be contingent on defense counsel’s surrender of her investigator’s report.

After the trial testimony of each of the affected witnesses, defense counsel renewed her requests for Jencks Act materials. (See footnote 7, infra). The court adhered to its previous order of reciprocity. Defense counsel persisted in her refusal to disclose the evidence obtained by the defense investigator, and the disputed documents were not exchanged. (See footnote 8, infra.) Bennet, Burton Powell, and Officer Johnson made in-court identifications of appellant. Their accounts of the robbery were corroborated by Joan Martin and Ellen Israel, two employees of the carryout who were unable to identify appellant.4 Over objection by the defense, the court also permitted an in-court identification by Officer Wilson, who, until seeing appellant in the courtroom, had been unable to identify him as his bus stop assailant.

Appellant’s theory of defense was mis-identification. He presented three alibi witnesses — his mother, brother, and father — who testified to the effect that he had been at home at the time of the robbery. Defense counsel’s proffer of expert testimony concerning the statistical frequency of appellant’s orthodontic configuration (his teeth had been mentioned by several of the government’s witnesses in their descriptions and identifications) was refused by the court. Finally, during appellant’s direct testimony, defense counsel brought out the fact that appellant previously had pleaded guilty to a robbery charge in an unrelated assault. When the government thereafter probed the details of that extrinsic offense on cross-examination, defense counsel moved for a mistrial, but the court ruled that appellant had opened the door to *114the collateral incident. The jury ultimately returned a verdict of guilty on each of the charges.

II

Appellant’s first argument is that the trial court erred in its administration of the discovery process. Appellant sought the production of several documents in the possession of the government which were alleged to fall within the purview of the Jencks Act. The trial court, applying what it called “the doctrine of mutuality,” concluded that appellant’s right to those documents should be contingent on his surrender of a report by a defense investigator which purported to contain statements by several prospective government witnesses. When defense counsel refused to engage in reciprocal discovery, the court ruled that appellant had “forfeited” his right to the putative Jencks material.

The disputed rulings were in response to opposing discovery requests made during a pretrial hearing on appellant’s motion to suppress certain identification testimony. The questioning of the first witness, Patricia Bennet, revealed the existence of material potentially falling within the provisions of the Jencks Act, and defense counsel sought production of the relevant documents for the purpose of cross-examining the witness. See United States v. Anderson, D.C.App., 366 A.2d 1098, 1105 (1976) (Harris, J., concurring); see also United States v. Dockery, D.C.App., 294 A.2d 158 (1972). The government did convey several documents to the defense.5 However, before cross-examination of the witness resumed, the prosecutor, who had learned that a defense investigator had obtained a statement from Patricia Bennet (as well as statements from Joan Martin and Ellen Israel), made a counter-request that the defense produce copies of those statements after each of those three witnesses testified.6 Defense counsel resisted such discovery in reliance upon United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181 (1973). The trial court responded that Wright was not binding [see M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971)], and announced that it would follow a principle of mutuality in resolving the discovery issues. The court rejected defense counsel’s argument that neither Super.Ct.Cr.R. 16 nor the Jencks Act provided authority to compel the production of the disputed statements, and also rejected her assertion that to grant the prosecution’s discovery request would both violate the doctrine of an attorney’s “work product” and impinge on appellant’s Fifth Amendment rights. The court concluded that the opposing discovery requests should be handled reciprocally, and declared:

[S]o far as I’m concerned, [the defense] would have to make available the statement from Mrs. Bennet at this time from the doctrine of mutuality arising out of the Jencks Act . . . . [B]y declining to make available your statements, you forfeit your right to the Jencks Act materials.

On later occasions during both the pretrial hearing and the trial, appellant made further requests for Jencks material.7 Much of the requested material was provid*115ed to the defense by the prosecution.8 However, with respect to the three witnesses from whom the defense apparently had obtained statements, the trial court adhered to its theory of mutuality, and refused to compel production as long as appellant resisted reciprocal discovery.9

Appellant contends that the trial court erred (1) in ordering the surrender to the government of the statements obtained by the defense investigator; (2) by making appellant’s rights under the Jencks Act contingent on his acquiescence in the government’s request for discovery; and (3) by declining to apply the statutory sanctions to the government’s nonproduction of its putative Jencks material.

We consider first the question of whether the trial court had the authority to order defense counsel (albeit on a reciprocal basis) to surrender to the government the evidence gathered by her investigator. Neither the Jencks Act nor Super.Ct.Cr.R. 16 provides for such discovery. The former is limited to discovery by a defendant of a narrow class of documents in the possession of the government after the declarant-witness has testified at trial. See 18 U.S.C. § 3500(b) and (e) (1970); March v. United States, D.C.App., 362 A.2d 691, 698 n. 9 (1976). There is nothing in either the language of the statute or its legislative history to suggest that Congress contemplated the creation for the government of a similar right of access to information in a defendant’s files. See United States v. Wright, supra, 160 U.S.App.D.C., at 65, 489 F.2d at 1189. Rule 16, on the other hand, does provide reciprocal pretrial discovery rights for the government, but only under limited circumstances. See, e. g., United States v. Hodges, 480 F.2d 229 (10th Cir. 1973). Moreover, the rule expressly excludes precisely the sort of evidence at issue in this case (i. e., statements by potential witnesses). Super.Ct.Cr.R. 16(b)(2).10 Thus, any authority which the trial court might have possessed to order the disclosure of evidence gathered by the defense investigator would have to be found elsewhere. See United States v. Nobles, 422 U.S. 225, 234-36, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); id., at 246, 95 S.Ct. 2160 (White, J., concurring).

The recognition of certain discovery rights for the government in criminal cases has been a fairly recent development. See 1 C. Wright, Federal Practice and Procedure: Criminal § 251 (1969). The caution with which both courts and legislatures have embraced the concept rests in large part on a proper respect for the Fifth Amendment's guarantee against self-incrimination. Additional inhibition stems from concern over the impact of prosecuto-rial discovery on such related matters as the Sixth Amendment’s guarantee of effective assistance of counsel, the attorney-client privilege, and the so-called “work product” doctrine recognized in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 *116(1947).11 See, e. g., United States v. Nobles, supra, 422 U.S., at 236-40, 95 S.Ct. 2160; United States v. Wright, supra, 160 U.S.App.D.C. at 64, 489 F.2d at 1188; see also Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338 (1976). Appellant’s challenge to the rulings by the trial court touches on each of these points.

The rationale offered by the trial court was one of a spirit of mutuality arising out of the Jencks Act. That statute, however, is no more than a narrowly structured scheme designed to regularize and limit the access of the accused to a specific type of evidence (j.- e., extrinsic statements or reports) which may facilitate the impeachment of the government’s witnesses. See Goldberg v. United States, supra, 425 U.S., at 112, 96 S.Ct. 1338 (Stevens, J., concurring); March v. United States, supra, at 698. See also United States v. Anderson, supra, 366 A.2d at 1105 (HARRIS, J., concurring). While the Jencks Act does involve a certain balancing of interests, i. e., that of the accused in obtaining such material and that of the government in preserving the sanctity of its files.and the safety of its officers and witnesses [see Campbell v. United States, 365 U.S. 85, 95, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); cf. Goldberg v. United States, supra, 425 U.S. at 105-06, 96 S.Ct. 1338], its discovery provisions are directed unambiguously to the benefit of the defendant and contain no suggestion of mutual or reciprocal discovery. See United States v. Wright, supra, 160 U.S.App.D.C. at 65, 489 F.2d at 1189.

Perhaps what the trial judge may have had in mind was a redressing of the apparent gap between the provisions of the Jencks Act and the limited reciprocal discovery mechanism available under Rule 16. As noted, the rule expressly exempts from its discovery procedures access by either party to the type of evidence at issue in the case before us, i. e., the extrinsic statements or reports of prospective witnesses.12 See *117footnote 10, supra. See generally, 1 C. Wright, supra, § 251 et seq. While Rule 16 specifically defers to the Jencks Act for purposes of the defendant’s discovery of such evidence, it is silent with respect to the alternative means, if any, by which the government may enjoy similar access to the exempted documents.13 Notwithstanding the gap between the discovery mechanisms provided in Rule 16 and the Jencks Act, those two schemes represent careful attempts to balance the competing interests of society and the accused in a manner consistent with the objective of truth while being faithful to the mandate of the Constitution, and any venture beyond their limited principles must be subjected to close scrutiny.14 See generally United States v. Percevault, 490 F.2d 126 (2d Cir. 1974); cf. United States v. Fratello, supra, 44 F.R.D. at 450-51. Both the importance of the interests at stake in any expansion of the prosecutor’s right to discover a defendant’s evidence and the need for a broad perspective from which to assure the proper consistency among the various rules and sys-terns of discovery argue in favor of deferring any such modification to the appropriate legislative forum. See United States v. Wright, supra, 160 U.S.App.D.C. at 68, 489 F.2d at 1192. Cf. United States v. Anderson, supra, 366 A.2d at 1104-05 (HARRIS, J., concurring); March v. United States, supra, 362 A.2d at 698—702.

Apart from the lack of statutory authority, we find little in the relevant case law to support the trial court’s determination to expand the government’s discovery rights. In United States v. Wright, supra, the circuit court concluded that the principles of both the statutory discovery mechanism and the Fifth Amendment precluded the compelled production of a report prepared by a defense investigator from his interviews of potential witnesses. In Wright, the investigator had been called to the stand to impeach the testimony of certain government witnesses. Here we are not confronted with the additional factor of the substantive use by the defense of either the testimony of its investigator or the evidence which he had gathered.15 Thus, it would *118appear that but for the doctrine of M. A. P. v. Ryan, supra, the conclusion in Wright would bar the disputed discovery.16 See United States v. Brown, 501 F.2d 146 (9th Cir. 1974), rev’d sub nom. United States v. Nobles, supra.

The Supreme Court’s decision in United States v. Nobles, supra, however, casts considerable doubt on the rationale if not the result reached by the Wright court. In Nobles, the Court sustained a ruling by the trial court making the testimonial use of a defense investigator (for the purpose of impeaching a government witness) contingent on the submission of the investigator’s report to the court for in camera inspection and transmittal to the government of those portions relevant to the attempted impeachment. As in the instant case, the discovery was challenged on the grounds that it conflicted with the statutory discovery mechanisms and contravened the principles of the work product doctrine as well as the guarantees of the Fifth and Sixth Amendments.17 The Court rejected those claims, and emphasized that despite the adoption of statutory mechanisms such as the Jencks Act and Rule 16, trial courts retain their “inherent powers” over the discovery process.18 In proper circumstances, those powers may support the compelled production of previously recorded witness statements in the possession of the defense.19 The question for our determination thus becomes whether, despite the lack of statutory authority, the disputed discovery may be sustained as an exercise of the “inherent powers” recognized in Nobles. We conclude that it may not.

Centra) to the Nobles Court’s rationale with respect to the arguments concerning the principles of the Sixth Amendment and the work product doctrine was the fact *119that the investigator in that case had been called as a witness for the defense. The Court acknowledged the general applicability of the qualified privilege recognized in Hickman v. Taylor, supra, to the investigator’s report.20 Nonetheless, it concluded that by placing its agent on the stand and making testimonial use of the disputed evidence, the defense voluntarily had waived whatever protection might have been available under the doctrine.21 422 U.S. at 236-40, 95 S.Ct. 2160. See also Randall v. United States, D.C.App., 353 A.2d 12, 12 n. 2 (1976); cf. Moore v. United States, D.C. App., 353 A.2d 16, 28 n. 5 (1976) (HARRIS, J., dissenting). Similarly, the Court found that the defense’s election to make substantive use of the agent and his evidentiary product disposed of the claim that the challenged discovery impermissibly impinged on the Sixth Amendment guarantee of effective assistance of counsel.22 422 U.S. at 240 n. 15, 95 S.Ct. 2160. Cf. United States v. Washabaugh, 442 F.2d 1127, 1129 (9th Cir. 1971). The facts of the instant case, however, reveal no such waiver of the Hickman v. Taylor and Sixth Amendment protections, as the investigator was not called as a witness and appellant did not attempt to make substantive use of the disputed report.23

*120There exist additional important distinctions between the case before us and the situation in Nobles in terms of both the need for and the scope of the disputed discovery. Apart from the matter of waiver, the Nobles Court found the testimonial use of the defense investigator significant for its potential effect on the integrity of the adjudicatory process. It emphasized the trial context of the challenged discovery, noting that what was at stake there was not merely the facilitation of the mov-ant’s preparation for trial or his ability to impeach his opponent’s witnesses, but whether the trier would be provided with the full and fair exposition of the facts necessary to a proper resolution of the merits of the case. 422 U.S. at 231-32, 95 S.Ct. 2160. Cf. United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 309 (1974); Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Because Nobles had chosen to use the material gathered by his investigator as substantive evidence and not merely as a foundation for impeachment, the Court concluded:

The investigator’s contemporaneous report might provide critical insight into the issues of credibility that the investigator’s testimony would raise. [422 U.S. at 232, 95 S.Ct. at 2167.]

******

[I]t was within the court’s discretion to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent . . .. 422 U.S. at 241, 95 S.Ct. at 2171.]

Here there was no such compelling need, for the challenged ruling first was made in the pretrial context, and there is no indication that appellant intended to use the requested materials other than as providing a basis for defense counsel’s cross-examination of the government’s witnesses.

In upholding the challenged discovery, the Nobles Court also emphasized the reasonableness of the required disclosure. See 422 U.S. at 240, 95 S.Ct. 2160. Unlike the sweeping directive of the trial court in this case that appellant surrender directly to the prosecution “any information . which sheds light on the substantial merits [of the] case,” the trial court in Nobles had confined its order to the production of the requested documents for in camera inspection, with the government to receive only those portions, if any, relevant to the matters raised by the actual testimony of the affected witnesses.24 See 422 U.S. at 228-29, 240-41, 95 S.Ct. 2160. See also United States v. Wright, supra, 160 U.S. App.D.C., at 65, 489 F.2d at 1189. As measured against the Nobles rationale, we are of the opinion that the absence of any waiver of the relevant privileges and the combined effect of a less compelling need and a substantially greater intrusion into the affairs of appellant and his counsel fail to provide the proper circumstances which would be necessary to sustain the disputed discovery as an exercise of the trial court’s “inherent powers.”

Finally, even were we able to conclude that despite the lack of statutory authority the trial court nevertheless might create a reciprocal of the Jencks Act inuring to the government’s benefit, we note that the actual effect of the disputed rulings was to grant the government a far broader degree of discovery than that contemplated by the statute. Under the Act, a defendant is entitled to only those documents found to be “statements” within the meaning of 18 U.S.C. § 3500(e) (see March v. United States, supra, 362 A.2d at 698), and may not obtain such materials until after the declar-ant has testified (and then only to the extent that they are relevant to the witness’ *121testimony).25 18 U.S.C. § 3500(a) and (b) (1970); see United States v. Anderson, supra, 366 A.2d at 1104-05 (HARRIS, J., concurring). Here the original order was made at the suppression hearing and indiscriminately embraced all of the investigator’s work product pertaining to the “merits of the case,” despite the fact that at that time only one of the affected witnesses had given any testimony.26 Compare United States v. Wright, supra, 160 U.S.App.D.C. at 65, 489 F.2d at 1189. We do not view the trial court’s apparent willingness to extend similarly liberal discovery to appellant as significant. However appealing the notion of full disclosure may be in the abstract, important constitutional and societal interests affected by the criminal discovery process counsel against a casual acceptance of such a major revision of the established statutory schemes.27 For the foregoing rea*122sons, we conclude that the court erred in ordering defense counsel to provide the government with the evidence gathered by her investigator.28 See Craig v. Superior Court, 54 Cal.App.3d 416, 126 Cal.Rptr. 565 (1976). Moreover, the trial court also erred in conditioning appellant’s discovery of material to which he was entitled under the Jencks Act upon his compliance with that directive.

These conclusions, however, do not end our inquiry. We are left to determine whether these errors prejudiced appellant in a manner requiring reversal (or a remand for renewed trial court consideration of the Jencks Act questions) or whether, as the government asserts, they were harmless under the standard announced in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).29

As we have said (see footnote 8, supra), the materials not provided to appellant at trial included the prosecutor’s notes of his interviews with the witness Patricia Bennet and the grand jury testimony of the witness Joan Martin. We have reviewed the notes of the interviews with Bennet. Unquestionably, as noted by the Supreme Court in Rosenberg v. United States, 360 U.S. 367, 369, 79 S.Ct. 1231, 1233, 3 L.Ed.2d 1304 (1959), they “in no sense complied with subsection (e) of the statute. They were neither signed nor otherwise adopted by [the] witness . . . nor were they reproductions as statutorily required of any statement made by [the] witness at the *123trial.”30 On the other hand, the grand jury testimony of the witness Martin certainly met the requirements of the Act. 18 U.S.C. § 3500(e)(2) (1970). See United States v. Eisenberg, 469 F.2d 156, 160 (8th Cir. 1972), cert. denied, 410 U.S. 992, 93 S.Ct. 1515, 36 L.Ed.2d 190 (1973). Thus, that transcript was producible under the Jencks Act.

In a case free of error, appellant’s timely requests for that material presumably would have resulted in a trial court directive under either 18 U.S.C. § 3500(b) or (c) that the grand jury transcript be made available to the defense. The government then would have been required to decide whether to comply in full, in part, or at all with that order. Under 18 U.S.C. § 3500(d), noncompliance would mandate that the trial court strike the testimony of the government witness in connection with whom— and to the extent that — the Jencks Act production order was refused.31

The government urges that any error was harmless because the material withheld from the defense prevented neither effective cross-examination nor the full presentation of appellant’s alibi and mistaken identity defenses. Of course, the harmless error concept is applicable in appropriate situations to Jencks Act cases. See, e. g., Rosenberg v. United States, supra, 360 U.S. at 371, 79 S.Ct. 1231; Hardy v. United States, D.C.App., 316 A.2d 867, 870-71 (1974); United States v. Knight, 166 U.S.App.D.C. 21, 25, 509 F.2d 354, 358 (1974). Such a conclusion validly could be reached in this ease; the transcript of the grand jury testimony of Joan Martin was only five pages in length and it was fully consistent with her trial testimony.32 See Wiggins v. United States, D.C.App., 386 A.2d 1171, 1174-75 (1978). However, notwithstanding the simplicity of the testimony at issue in this case, we prefer not to rely solely on such an analysis; we share the Supreme Court’s concern that an “appellate court should not confidently guess what defendant’s attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled.” Rosenberg v. United States, supra, 360 U.S. at 371, 79 S.Ct. at 1234. Hence, for purposes of analysis, we eschew a harmless error holding based upon our review of the transcripts, and assume that the government’s nonproduction of Mrs. Martin’s grand jury testimony should have resulted in the striking of her testimony. To determine whether the trial court’s failure to do so caused reversible prejudice to appellant, we must decide whether it is likely that the jury’s verdict was substantially swayed by the impact of the testimony-

viewing the testimony of the witness Martin in the context of the exceptionally strong case against appellant adduced from the testimony of the other witnesses, we conclude that the trial court’s presumably erroneous nonstriking of her testimony was harmless, as Kotteakos contemplates that term.

The case against appellant was strong. Burton Powell, a customer in the sandwich *124shop, testified that he had an excellent opportunity to observe the robbers and that he had briefly given chase as the robbers fled. He recalled that the perpetrators put the proceeds of their crime in a white bag with a red and black circular design and the name “Cavalier” at the bottom. On the day after the robbery, Powell viewed a collection of slides and identified appellant’s photograph as that of one of the robbers. Although confused and unable to select appellant from a lineup, Powell later identified him from a photograph of that lineup, and identified him once more in court.

Police officers Johnson and Wilson responded to a radio run of the robbery, and within minutes of the crime spotted an individual fitting the physical description of one of the robbers standing at a bus stop just four and one-half blocks from the sandwich shop. The suspect was carrying a “Cavalier” bag, and stepped back as Officer Johnson approached him. A struggle ensued; the officer observed another individual with a gun standing nearby. That individual attempted unsuccessfully to shoot both officers at point-blank range. Officer Johnson identified him from a slide series, a lineup, a lineup photograph, and at trial as appellant. Officer Wilson was unable to make a pretrial photographic identification, but positively identified appellant at trial as the gunman. (This had been his first opportunity to observe appellant in person since the day of the robbery.) Officer Wilson recalled at trial that he had observed the gunman face-to-face for five or ten seconds at a distance of approximately three feet. Testimony further established that following their altercation with the officers, the suspects escaped, with the officers unsuccessfully giving chase. The officers recovered appellant’s gun, the “Cavalier” bag containing the robbery loot, and a wallet belonging to Joan Martin, the manager of the sandwich shop.

We have no doubt that a jury reasonably could have convicted appellant based on the testimony of Burton Powell and Officers Johnson and Wilson. Viewed in context, Martin’s testimony was relatively inconsequential. She was unable at any time to identify either of the robbers. She did corroborate testimony of other witnesses that a “Cavalier” bag was used, and she identified her empty wallet which was recovered by police from the perpetrators. In our view, it is inconceivable that the testimony of Mrs. Martin substantially influenced a jury which also heard and could properly consider the testimony of Burton Powell and Officers Johnson and Wilson. The fact that the testimony in question was not stricken does not lead either to reversal or to a remand for further proceedings on the discovery issue.

Ill

Appellant’s second argument challenges the prosecutor’s cross-examination concerning his prior conviction for robbery. The subject of the previous offense was first broached by the defense on direct examination. After establishing that on the day in question appellant had visited his parole officer, defense counsel asked:

[DEFENSE COUNSEL]: Why are you on probation?

[APPELLANT]: I snatched a lady’s pocketbook.

* * * * * #

[DEFENSE COUNSEL]: Did you plead guilty or did you go to trial?

[APPELLANT]: I plead guilty.

[DEFENSE COUNSEL]: Why aren’t you pleading guilty in this case?

[APPELLANT]: Because this isn’t my charge, and I don’t know nothing about it. This isn’t my beef.

At that point the trial court, sua sponte, cautioned the jury that such testimony could be considered only for the purpose of evaluating appellant’s credibility, and not on the question of guilt. Thereafter, on cross-examination, the following exchange took place:

[PROSECUTOR]: Now, you said . . that this wasn’t your beef, those were your words?

[APPELLANT]: Right.

* * * # * *

*125[PROSECUTOR]: Now, you were convicted of a robbery in 1972, is that right?

[APPELLANT]: Right.

[PROSECUTOR]: Now, when you said you plead guilty to that, to taking a woman’s purse, isn’t it a fact that you struck a woman in the face and took her purse?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Objection overruled. You went into the facts of the offense

[PROSECUTOR]: Isn’t it a fact that, Mr. Middleton, that you struck a 58 year old woman in the face and snatched her purse and ran for two blocks? Is that the reason why you plead guilty to the case, because you were caught red-handed with the purse in your hand? With the woman’s purse one block away? Isn’t that why you plead guilty?

[APPELLANT]: No.

At the close of cross-examination, defense counsel moved for a mistrial. The court denied the motion on the ground that the direct examination had opened up not only the subject of appellant’s prior conviction but the motivation behind his plea of guilty as well. While the court suggested that such a line of inquiry had been improper in the first place, it concluded that once the matter had been placed before the jury by the defendant, he could not thereafter complain of further exploration on cross-examination. The trial judge stated:

THE COURT: You used [the direct examination] to indicate to the jury that he had not plead guilty in this case, as he wasn’t guilty, whereas he had been guilty, apparently trying to correct [create?] the impression of the jury that if he had been guilty, he would have plead guilty in this case as he did before. I feel that [the cross-examination] is wholly and completely proper. .

The court also declined a request that the jury be reinstructed on the proper use of the disputed testimony. Appellant now argues that both the scope of the prosecutor’s cross-examination and the trial court’s response to his objections thereto amount to reversible error. We disagree.

It is the law in this jurisdiction that, as with any other witness, when the defendant elects to take the stand he may be impeached by evidence of his prior convictions. D.C.Code 1973, § 14 — 305. Cf. Fed.R.Evid. 609 (1975). Because of the potential impact of such evidence upon the trier of fact, it is not uncommon for defense counsel to attempt to forestall the government’s detrimental use of the previous offenses by raising the subject during the direct examination of the accused, and we have sanctioned that practice. See Kitt v. United States, D.C.App., 379 A.2d 973 (1977). As appellant suggests, such a tactic is not inconsistent with the principle which permits the accused to give a limited explanation of extrinsic convictions when the subject is first broached by the government. See United States v. Boyer, 80 U.S.App. D.C. 202, 150 F.2d 595 (1945); see also Jenkins v. United States, D.C.App., 374 A.2d 581 (1977). Compare Brooks v. State, 24 Md.App. 334, 330 A.2d 670, 675 (1975).

It does not follow, however, that the defense is subject to no restrictions on its use of prior convictions. It is well settled that as a general matter such evidence is admissible only as bearing on the issue of the witness’ credibility, and must not be allowed improperly to influence the determination of guilt. See, e. g., United States v. Henry, 174 U.S.App.D.C. 88, 93-95, 528 F.2d 661, 666-68 (1976). Thus, for example, courts have been quick to find error where the manner in which the government employs evidence of prior offenses exceeds the bounds of proper impeachment and fatally infects the ultimate issue. See, e. g., Fields v. United States, D.C.App., 396 A.2d 522, 526-28 (1978); United States v. Henry, supra, 174 U.S.App.D.C. at 93-95, 528 F.2d at 666-68; United States v. Carter, 157 U.S. App.D.C. 149, 151-52, 482 F.2d 738, 740-41 (1973). Here the record clearly portrays an attempt by the defense to use the evidence of the purse-snatching (i. e., appellant’s pri- or guilty plea) to create an inference of innocence with respect to the charges in the present case. The appeal of such a strateg-*126em lies in the difficulty faced by the government in responding to the proffered inference without creating the impermissible suggestion that the previous episode is indicative of present guilt. Cf. C. McCormick, Law of Evidence § 43 (E. Cleary ed. 1972). However, as was recognized in United States ex rel. Walker v. Follette, 311 F.Supp. 490, 495 (S.D.N.Y.1970), aff’d, 443 F.2d 167 (2d Cir. 1971):

While “opening the door” on direct may not amount to a blanket waiver, where as a matter of trial strategy a defendant himself decides to open up a sensitive area — whether because he hopes to draw the sting out of the prosecution’s case or because he mistakenly believes he has nothing to fear — he cannot expect the same measure of protection from cross-examination as when the prosecution initiates the inquiry.[33]

The trial court apparently was of the opinion that the confinement of such inquiry to the question of credibility should be applied equally to the government and the defense; that is, just as the prosecutor may not use the fact of extrinsic wrongdoing to suggest guilt, so the defense should not be permitted unrestricted opportunity to use such evidence to suggest an absence of guilt. See Newman v. United States, 331 F.2d 968, 972-73 (8th Cir. 1964), cert. denied, 379 U.S. 975, 85 S.Ct. 672, 13 L.Ed.2d 566 (1965). We agree. The fact and circumstances of appellant’s guilty plea to an unrelated prior offense have little if any bearing on the issue of his present credibility. Trial counsel’s transparent attempt to use appellant’s self-serving explanation of the previous episode to buttress his account of the instant robbery was improper. See Jenkins v. United States, supra, 374 A.2d at 586-87 (HARRIS, J., concurring).

In his argument before us, appellant makes little effort to support defense counsel’s use of the collateral offense. Rather, he suggests that the appropriate response for the trial court would have been merely to strike the offending direct testimony, and, in any event, that the latitude accorded to the government’s cross-examination constitutes reversible error. The government, on the other hand, urges that as defense counsel had “opened the door” to appellant’s earlier offense, the disputed cross-examination fell within the doctrine of curative admissibility. See 1 J. Wig-more, Evidence § 15 (3d ed. 1940). The question thus becomes whether, given the impropriety of the totality of the direct examination on this issue, the court erred in its response thereto by permitting the government to offset the defense’s intended inference that had appellant been guilty in this case, he would have acknowledged his guilt.

The core principle of the doctrine of curative admissibility has been expressed as follows [C. McCormick, supra, § 58]:

[0]ne who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himself of the opening. [Citations omitted.]

In United States v. Winston, 145 U.S.App. D.C. 67, 71-72, 447 F.2d 1236, 1240-41 (1971), the court explained:

The rule operates to prevent an accused from successfully gaining exclusion of inadmissible prosecution evidence and then extracting selected pieces of this evidence for his own advantage, without the Government’s being able to place them in their proper context.

Consistent with the trial court’s general authority over the proper scope of witness examination, both the allowance of an opportunity to address the improper evidence or line of inquiry and the extent of such an opportunity frequently have been described as matters for the court’s sound discretion. *127 See C. McCormick, supra, §57; 1 J. Wig-more, supra, § 15.

As the “interrelation” between the 1972 conviction and the instant offense to which appellant now objects so strenuously was the product of his own counsel’s defense tactics, he cannot validly be heard to complain of the trial court’s decision to allow the government an opportunity to respond. See United States v. Cole, 334 F.Supp. 961, 966-68 (S.D.N.Y.1971). While perhaps the better practice would have been for the court to intervene as soon as defense counsel strayed toward the forbidden area on direct [cf. United States v. Plante, 472 F.2d 829, 832 (1st Cir.), cert. denied, 411 U.S. 950, 93 S.Ct. 1932, 36 L.Ed.2d 411 (1973)], we do not view either the fact that it did not or its conclusion that the government should be permitted some countervailing exploration of the subject to amount to an abuse of discretion. See United States v. Boyer, supra. 34 See also United States v. Novick, 124 F.2d 107, 109 (2d Cir.), cert. denied, 315 U.S. 813, 62 S.Ct. 795, 86 L.Ed. 1212 (1942). Compare Clemons v. United States, 133 U.S.App.D.C. 27, 45, 408 F.2d 1230, 1248 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). Once the collateral area had been opened up by the defense, it was within the court’s authority to ensure that the trier would not be left with only appellant’s untested version of the matter.35 See Johnson v. United States, D.C.App., 373 A.2d 596, 598-99 (1977); United States v. Novick, supra, at 109; United States v. Clark, 294 F.Supp. 44, 52-53 (D.D.C.1968), aff’d sub nom. Clemons v. United States, supra. Accord, Newman v. United States, supra, at 972-73; United States v. Kim, 193 U.S.App.D.C. 370 at 382-83, 595 F.2d 755 at 767-68 (D.C.Cir., 1979).

Nor do we find error in the scope of the cross-examination permitted. We are mindful that the circuit court has cautioned that the doctrine of curative admissibility is “dangerously prone to overuse” [United States v. McClain, 142 U.S. App.D.C. 213, 216, 440 F.2d 241, 244 (1971)], and agree with its assessment that the principle should be applied “ ‘only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.’ ” United States v. Winston, supra, 145 U.S.App.D.C., at 71, 447 F.2d at 1240, quoting California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956). See 1 J. Wigmore, supra, § 15. Nevertheless, the record reveals that the disputed cross-examination went no further than to expose the possibility that rather than emanating from a general personality trait of acceptance of responsibility for one’s criminal acts, appellant’s guilty plea may have been the simple product of the fact that he was caught “red-handed” immediately after the earlier robbery. We cannot say that this limited inquiry exceeded the bounds of permissible rebuttal opened to the trial court’s discretionary authority as a result of defense counsel’s improper tactic on direct examination. See Curry v. United States, D.C.App., 322 A.2d 268 (1974). Cf. Stith v. United States, D.C.App., 256 A.2d 403 (1969). As the declaration of a mistrial lies within the sound discretion of the trial court, and generally should be reversed for extreme situations threatening a miscarriage of justice [see Hammond v. United *128 States, D.C.App., 345 A.2d 140, 141 (1975); United States v. Anderson, 165 U.S.App. D.C. 390, 403, 509 F.2d 312, 325 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1247, 43 L.Ed.2d 672 (1975); cf. United States v. Jorn, 400 U.S. 470, 480-86, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)], we find no error in the denial of appellant’s motion.

There remains, however, the problem of the prosecutor’s phrasing of his questions on cross-examination, and the issue of whether the jury received adequate guidance on the limited use to which they might put the evidence of the prior offense. We agree that the prosecutor’s gratuitous reference to the fact that appellant had struck his previous victim in the face cannot be supported by the principle of curative admissibility.36 Moreover, in light of such an ill-advised excess, as well as in recognition of the prejudicial potential of the collateral inquiry in general, we are of the opinion that the better practice would have been for the court both to grant the defense request for reinstruction and to provide more specific guidance on the matter in its final charge to the jury. Nevertheless, we conclude that these factors do not amount to reversible error.

We are not confronted with a failure by the trial court to provide the trier of fact with any guidance on its consideration of the dispute testimony. Cf. Dixon v. United States, D.C.App., 287 A.2d 89, 99, cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813 (1972). The court’s unwillingness to reinstruct the jury during cross-examination, as well as its omission of any specific instruction on the matter in the final charge, must be viewed against the likely effect of its sua sponte cautionary instruction when defense counsel first raised the previous offense and sought to relate it to the instant charges.37 At that point, the trial judge stated:

I should caution at this point, although the defendant has just admitted that he had a record of a previous criminal conviction, that evidence is admitted by the Court for the purpose of permitting you to use it in your evaluation of the credibility and believability to be accorded to the defendant’s testimony in this matter. It’s not admitted for the purpose of proving in and of itself that he committed the matter to these charges in this case, and you should not use it for that purpose, but use it only for the purpose of evaluating the credibility to be accorded to the defendant’s testimony in this case. I am sure you understand that.

Compare United States v. Lee, 166 U.S.App. D.C. 67, 74 & n.17, 509 F.2d 400, 407 & n.17 (1974), cert. denied, 420 U.S. 1006, 95 S.Ct. 1451, 43 L.Ed.2d 763 (1975) (upholding a robbery conviction in a converse situation; that is, proper instructions on the impeachment by prior offense were given in the final charge, but not immediately during the cross-examination), with Curry v. Unit *129 ed States and Dixon v. United States, supra (upholding convictions where there were final instructions but no immediate guidance on the impeachment evidence). Apart from our previously expressed reservations concerning the wisdom of allowing the defense to embark upon the collateral line of inquiry, the court’s remarks constituted an accurate statement of the law and we are satisfied that they provided the jury with an adequate understanding of the applicable evidentiary principles. See Dixon v. United States, supra. Cf. Spencer v. Texas, 385 U.S. 554, 560-61, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

Defense counsel made a request for immediate reinstruction during cross-examination.38 However, trial counsel thereafter made no further reference to the matter.39 No request was made for the inclusion of any specific instruction when the court queried counsel as to its final charge [cf. United States v. Henson, 159 U.S.App.D.C. 32, 39 n.6, 486 F.2d 1292, 1299 n.6 (1973)], and no obligation was made to its subsequent determination not to include explicit instructions on the disputed testimony.40 See Watts v. United States, D.C.App., 362 A.2d 706 (1976) (en banc); Cobb v. United States, D.C.App., 252 A.2d 516 (1969); Super.Ct. Cr.R. 30 and 52(b). Finally, our review of the record reveals no indication that the deliberations of the jury may have been infected with confusion or prejudice as a result of either the prosecutor’s questions or the alleged inadequacy of the court’s instructions.41 The government presented a strong case against appellant, and we are confident that the outcome was unaffected by the matter. See Gaither v. United States, 134 U.S.App.D.C. 154, 172-73, 413 F.2d 1061, 1079-80 (1969). The error, if any, was harmless. See Dixon v. United States, supra, at 99—100; compare United States v. Henry, supra, 174 U.S.App.D.C., at 95, 528 F.2d at 668. Cf. United States v. Park, 421 U.S. 658, 673-77, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975).

IV

Appellant’s third contention is that the trial court erred in excluding the testimony of an expert in the dental sciences, which, it was proffered, would have established that the type of gap or space between appellant’s front teeth (to which several of the eyewitnesses had referred) is an orthodontic configuration occurring in up to 20 percent. *130of all black males.42 The trial court barred the expert’s testimony on the grounds (1) that it would be irrelevant to the issue of identification, (2) that it would be unnecessarily time-cónsuming, and (3) that the jury readily could resolve such matters as the reliability and credibility of the eyewitness testimony, as well as the ultimate issue of identification, without such assistance. Appellant contends that the proffered evidence would have provided significant assistance to the jury in its weighing of the identification testimony, and for that reason its exclusion was error. We conclude, however, that the disputed ruling is supported by the record and wholly consistent with the applicable law.

While it is true, as appellant argues, that the trial court must consider the likelihood that the testimony of the proffered expert will “aid the court or the jury in determining the questions in issue” [Casbarian v. District of Columbia, D.C.Mun. App., 134 A.2d 488, 491 (1957); see United States v. Jackson, 138 U.S.App.D.C. 143, 145, 425 F.2d 574, 576 (1970)], such an inquiry is only one of several factors which govern the admissibility of expert testimony. The applicable test was set forth in Waggaman v. Forstmann, D.C.App., 217 A.2d 310, 311 (1966):

. It is well settled in this jurisdiction that to warrant the use of expert testimony the subject dealt with must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman and the witness must have such skill, knowledge or experience in that field or calling that his opinion will probably aid the trier in his search for the truth.[43] [Citing Jenkins v. United States, 113 U.S.App.D.C. 300, 306, 307 F.2d 637, 643 (1962). See Douglas v. United States, D.C.App., 386 A.2d 289, 295 (1978). Cf. Fed.R.Evid. 702 (1975).]

The trial court concluded that the frequency of gapped or chipped teeth (with its attendant implications concerning the reliability of the eyewitness testimony) was not beyond the ken of the lay trier. The court analogized the matter to that of the frequency of blue eyes and other familiar distinguishing characteristics, which manifestly lie within the realm of common understanding and experience, and concluded that expert testimony was unwarranted.44 We agree. See Dyas v. United States, D.C.App., 376 A.2d 827, 832 (1977).

*131Moreover, in addition to these considerations, as with any type of evidence, the admission of expert testimony remains a function of the trial court’s sound discretion [see Smith v. United States, D.C.App., 389 A.2d 1356, 1358 (1978); Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 119, 8 L.Ed.2d 313 (1962); see also Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Baker v. United States, 131 U.S.App.D.C. 7, 36, 401 F.2d 958, 987 (1968)], exercised in accordance with the general principle that the probative value of the proffered evidence must outweigh its potential for prejudice. See Douglas v. United States, supra, 386 A.2d at 295; United States v. Brown, supra, 501 F.2d at 150; United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973). Here the trial court concluded that the abstract statistical frequency of the type of orthodontic configuration possessed by appellant would be of little probative value to the issues before the jury, and that the exploration of such collateral matters would prejudice the orderly progression of the trial.45 Despite the exclusion of the expert witness, however, appellant did have ample opportunity to cross-examine the eyewitnesses and thus employ the conventional means by which the reliability of such evidence is to be tested. See Smith v. United States, supra, at 1359; United States v. Amaral, supra, at 1153. Even were we able to attach to the proffered testimony the probative value or significance asserted by appellant, we find nothing in the record to suggest that the disputed ruling amounted to an abuse of discretion. See Smith v. United States, supra, at 1359-60; Punch v. United States, D.C.App., 377 A.2d 1353, 1358 (1977); United States v. Amaral, supra, at 1152. We conclude, therefore, that the trial court did not err in excluding the testimony of the dental expert.

y

Appellant’s final argument is that the trial court erred in admitting the in-court identification testimony of Officer Wilson. Despite the officer’s close exposure to appellant during the incident at the bus stop, he apparently failed to select photographs or slides of appellant from various arrays, and did not recognize him until the lunch recess during the first day of trial. At that time the sole other occupants of the courtroom were appellant and counsel for both the government and the defense. Following a hearing out of the presence of the jury, the trial court concluded that the circumstances presented “no constitutional im-permissiveness,” and ruled that Officer Wilson would be permitted to make an in-court identification. Appellant argues that the in-trial confrontation contravened the due process principles recognized in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and its progeny, and therefore that the disputed testimony should have been excluded. We disagree.

Underlying the case law relied upon by appellant is the concern that the fair trial guaranteed by the due process clause may be rendered unobtainable where improper identification procedures fatally infect the witness’ ability to connect the accused with the charged offense. The critical inquiry is whether the challenged procedures are so unnecessarily suggestive that there exists a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See Stovall v. Denno, supra, 388 U.S., at 301-02, 87 S.Ct. 1967. Such an inquiry involves an examination of both the likely effect of the intervening exposure of the witness to the defendant and the ability of the latter to combat the possibility of misidentification. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). On the facts before us, we have no difficulty in sustaining the trial court’s conclusion that there was no constitutional bar to Officer Wilson’s in-court identification of appellant.

*132The nature of the challenged confrontation is of critical importance. While the Supreme Court thus far has confined its attention in this area to situations involving the pretrial exposure of the accused to potential witnesses, here we deal with a confrontation which occurred during the course of the trial. Appellant correctly observes that by its very nature the trial process is extremely suggestive, and we do not quarrel with his general thesis that the constitutional interest in safeguarding the witness’ ability to give untainted testimony does not cease at the commencement of the adjudicatory proceedings. However, we believe that, consistent with the pronouncements of the Supreme Court, proper regard may be given to the fact that unlike the situation in an avoidable one-on-one confrontation at the police station house [see, e. g., Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969)], the suggestivity inherent in the trial process is both inescapable and, being subject to the ameliorative scrutiny of court and counsel, less threatening of the due process guarantee. In an analogous context, the Ninth Circuit observed:

Undoubtedly any in-court identification confrontation, whether at a preliminary hearing or at trial, whether the defendant is tried alone or with others, carries with it the stigma of the inevitable suggestion that the state thinks the defendant has committed the crime. But more than suggestion is required for a due process violation — the procedure must create “unnecessary” or “impermissible” suggestion. As in Stovall, the necessity and constitutional propriety of a suggestive confrontation must be judged in light of the state’s interest in the procedure as well as by the danger it poses to a defendant. . The risk of a mistaken identification becoming irreparably “fixed” and not later to be shaken by cross-examination, which condemns suggestive confrontations in the police station, is far less present in the court proceeding because, as here, the identification can be immediately challenged by cross-examination. [Baker v. Hooker, 496 F.2d 615, 617 (9th Cir. 1974) (holding in-court identification testimony admissible despite the suggestive exposure of the defendant to a witness during a preliminary hearing).]

On two previous occasions we have rejected challenges to in-court identification testimony where, as here, the claim that such testimony had been influenced improperly rested upon no more than the fact that the witness had an opportunity to view the accused in the focus provided by the trial process. Brown v. United States, D.C.App., 327 A.2d 539 (1974) (the witness saw the defendant in the courtroom during a bench conference immediately before trial); In re W. K., D.C.App., 323 A.2d 442 (1974) (rejecting the argument that in-court identification testimony of a witness who had made no previous identification would be impermissibly tainted by the suggestivity of seeing the accused seated with defense counsel). We reiterate the principle that, without more, the mere exposure of the accused to a witness in the suggestive setting of a criminal trial does not amount to the sort of impermissible confrontation with which the due process clause is concerned.46 See United States v. Gentile, 530 *133F.2d 461, 467-69 (2d Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976); United States v. Davis, 487 F.2d 112, 122 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); United States v. Hamilton, 469 F.2d 880, 883 (9th Cir. 1972)47

Appellant places great emphasis on the fact that on previous occasions Officer Wilson had been unable to select his picture from photographic arrays. We have held both that the absence of pretrial identification of the accused by a witness does not preclude that individual from giving in-court identification testimony. In re W. K., supra, and that an in-court identification may be permissible where the witness has failed to make a pretrial photographic identification.48 Reavis v. United States, D.C. App., 395 A.2d 75 (1978); see United States v. Dobson, 512 F.2d 615 (6th Cir. 1975). We do not doubt that Officer Wilson’s recollection was in fact refreshed by his in-court exposure to the accused, but, as with any witness, such a circumstance would have occurred in any event when the officer was called to the stand.49 Cf. United States v. York, 138 U.S.App.D.C. 197, 201, 426 F.2d 1191, 1195 (ROBB, J., dissenting).

As indicated above, absent a constitutionally cognizable impropriety in the procedure by which the accused is exposed to the witness, the fact that such a confrontation was suggestively focused does not by itself raise a bar to that witness’ identification testimony. Reavis v. United States, supra; cf. United States v. Gambrill, 146 U.S.App.D.C. 72, 77, 449 F.2d 1148, 1153 (1971). The preconfrontation weakness of the officer’s recollection adds nothing to appellant’s constitutional argument for the failure to make an earlier identification goes to the weight to be accorded to the witness’ in-court testimony, and not to its admissibility. See In re W. K., supra, at *134444; United States v. Black, 412 F.2d 687, 689 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). See also Brown v. United States, D.C.App., 349 A.2d 467 (1975) (error to suppress identification testimony on the ground that it was too weak); United States v. Jackson, 166 U.S.App.D.C. 166, 173-74, 509 F.2d 499, 506-07 (1974); cf. Clemons v. United States, supra, 133 U.S.App.D.C. at 34, 408 F.2d at 1237. There was no due process obstacle to the in-court identification testimony by Officer Wilson.

While we thus are of the opinion that the absence of any unconstitutional suggestivity in the in-court confrontation between appellant and Officer Wilson fully disposes of appellant’s claim, it should be noted that under the instant circumstances there was little chance that the challenged exposure resulted in an “irreparable misidentification.” In the first place, this was not a single witness case [cf. Smith v. United States, D.C.App., 343 A.2d 40 (1975)], for the disputed identification was merely cumulative of the testimony of the government’s other witnesses who placed appellant both at the scene of the robbery and at the bus stop thereafter. Cf. Brown v. United States, D.C.App., 349 A.2d 467 (1975). More importantly, appellant was fully able to test the officer’s in-court identification testimony and the possible impact of the disputed confrontation. Appellant’s exposure to the witness occurred in the presence of his counsel.50 Defense counsel was made aware of the previous failures of Officer Wilson to identify the accused, and the matter was thoroughly explored on cross-examination.51 The in-court identification testimony was properly admitted. See Reavis v. United States, supra; In re W. K., supra; Baker v. Hocker, supra; United States v. Davis, supra, at 122; United States v. Hamilton, supra. See also United States v. Gentile, supra, at 467-69.

Affirmed.