Cook v. StateCook v. State
- Reporters:
- , ,
- Before:
- Orth
delivered the opinion of the Court.
THE ADMISSION OF IDENTIFICATION EVIDENCE
The general rule in this jurisdiction has been long established that evidence to show the identity of an ac
1) an eyewitness to the crime, by such witness
a) making a judicial identification; or
b) testifying as to an extrajudicial identifi- ’ cation made by the witness;
2) a third party testifying as to an extrajudicial identification by an eyewitness when made under circumstances precluding the suspicion of unfairness or unreliability, where the out of court declarant was present at trial and subject to cross-examination.
See
Judy v. State,
218 Md. 168, 174;
Walters v. State,
242 Md. 235, 239;
Johnson v. State,
237 Md. 283, 289; cited in
Smith and Samuels v. State,
6 Md. App. 59, 63-64. The substance of these rules of law are still effective in the light of the
Wade
— Gilbert—Stovall trilogy of opinions decided by the Supreme Court of the United States.
1
They were, however, qualified by the exclusionary rules enunciated in those opinions. The exclusionary rules were predicated upon the determination that a pretrial confrontation, within the meaning of the opinions, was a critical stage of a criminal proceeding. We have found that a confrontation within the meaning of
Wade —Gilbert—Stovall
was a pre-trial confrontation which was not subject to fair and meaningful objective review later at the trial, including, but not limited to, lineups, both pre-indictment and post-indictment.
Palmer v. State,
5 Md. App. 691;
Tyler v. State,
5 Md. App. 265. Therefore, absent a waiver of the right, such confrontation without the presence of counsel for the accused was illegal. And, independent of any right to counsel claim, such confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. But while the mere
That a pre-trial confrontation is illegal excludes per se evidence at the trial as to the extrajudicial identification but it does not per se exclude a judicial identification. A judicial identification is admissible despite an illegal pre-trial confrontation when the prosecution shows that the in-court identification had an independent source, that is that it was based upon observations of the suspect other than the illegal confrontation identification. This must be established by “clear and convincing evidence.” And even if a judicial identification or an extrajudicial identification which should have been excluded is admitted, the admission is not prejudicial error if its introduction was harmless beyond a reasonable doubt. See Smith and Samuels v. State, supra, at 65. These exclusionary rules only come into play when the confrontation is illegal, whether by the absence of counsel or by denial of due process of law. They are not applicable when the confrontation is legally conducted, and, in such event, the admission of the identification evidence is governed by the rules of law of this State relating thereto.
Michael D. Cook, the appellant here, found guilty by a jury in the Circuit Court for Anne Arundel County of kidnapping, proscribed by Code, Art. 27, § 337, and robbery with a deadly weapon, Code, Art. 27 § 488, contends that the trial court erred in admitting as substantive evi
At the trial, prior to the receipt of any evidence on the merits, the appellant moved to suppress any evidence as to identification of him by the victim. Out of the presence of the jury the court conducted a hearing on the issue, and, after evidence was adduced by the appellant and the State and argument of counsel made, ruled that the lineup was legal and that the challenged evidence as to identity was admissible. 4 Thus the question we must first decide is whether the court properly determined, on the totality of the circumstances surrounding the lineup, that it was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. If the determination of the court that the lineup was legal was proper, no further inquiry on the issue is required, for then the challenged evidence was admissible.
The Circumstances Surrounding The Lineup
The appellant limits his challenge to the lineup to the claim that he was placed therein wearing a yellow shirt, yellow jacket and brownish pants, the same type of clothing the perpetrator of the crimes was wearing at the time the crimes were committed. He does not contend that the
About 8:00 P.M. on 31 May 1968 David Lee Scott was robbed at gunpoint at a filling station in Anne Arundel County. He testified that he gave a description of the robber to Corporal Wilford H. Lawrence of the Maryland State Police describing the clothes the robber was wearing, his facial features, his build and the color of his hair and eyes. The description was put on the police teletype network. Corporal Harry T. Hitch of the New Castle County Police in Delaware received a teletype message that “Michael D. Cook, 6‘, 180 lbs., approximately 21 years, wearing a yellow shirt and jacket, reported to have been operating a ’67 Maroon Pontiac G.T.O. bearing Delaware registration (T believe that registration was 154086’)” was wanted “in reference to armed robbery and kidnapping.” He arrested the appellant on 1 June 1968 at his apartment in Claymont, Delaware. At the time of the arrest the appellant was in the bedroom attired in undershorts. The officer requested that he get dressed. The appellant selected the clothes; he put on a yellow shirt and took a yellow jacket with him.
The lineup was conducted in Wilmington, Delaware. Lawrence testified that he told the appellant he would be placed in a lineup with a group of men approximately his age, and his build and the victim would view the lineup. The appellant was wearing “brownish-greenish” pants, a yellow shirt and a yellow waist length jacket. The officer said that he had received from the victim “a description similar to those clothes.” There were six other men in the lineup, all white males as was the appellant. They were respectively 6 feet tall, weight 145 pounds, age 18 years; 5 feet six inches tall, weight 135 pounds, age 18 years; 5 feet 9 inches tall, weight 140 pounds, age 21 years; 6 feet 1 inch tall, weight 160 pounds, age 25 years; 6 feet tall, weight 150 pounds, age 18 years; 6 feet tall, weight 165 pounds, age 19 years.
The appellant testified that he was fully informed of his right to have an attorney present at the lineup and freely and voluntarily signed the waiver form. He said he was the only person in the lineup wearing a yellow shirt and yellow jacket. On cross-examination he said that when he was arrested he put on the clothes he had been wearing the night before of his own free will; he was not forced to do so. The jacket was by the front door of the apartment and he was not sure whether his wife got it for him or whether the arresting officers did so.
The trial judge applied the correct test in ruling on the conduct of the lineup. He found “under the totality of the circumstances in this case that this was a fair lineup.” In arriving at the holding he made findings of fact on the evidence before him. He found that it was not the clothing worn by the appellant in the lineup that enabled the victim to make the identification; that the victim had the opportunity to observe the appellant for forty-five minutes or more, not merely during the robbery itself but while in the car with him, and had “a good look at him over a long period of time” under favorable lighting conditions; that the appellant had not been forced to wear specific clothes at the lineup; that another man in the lineup had on a shirt and trousers similar to those worn by the appellant; that another man had on a jacket; that the victim remembered the robber’s face and it was due to the fact that he knew this man, he knew his face, he knew his size, he knew his mannerisms, that he was able to identify him.
We do not think that the court was clearly wrong in its factual findings on the evidence. Md. Rule 1086. We have no difficulty in determining that the lineup as conducted at the first viewing was not-so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due‘process of lato. In so determining we have considered the circumstances that the police were aware, prior to the lineup, that the victim described the robber as wearing a yellow shirt, a yellow jacket and brownish pants at the time of the commission of the crime, but we have also considered that the appellant was not forced to appear at that viewing-in clothing similar to that which the robber was described as wearing and in fact did not have on the yellow jacket. As the confrontation at the first lineup was legal it did not taint the judicial identification by the victim and both it and the victim’s testimony as to his identification at that viewing were admissible.
Even if the court’s ultimate ruling be interpreted as holding that the conduct of the lineup at the second viewing was illegal because the appellant was then directed to put on the jacket, we think it clear that it found that such evidence as was admitted indicating that the victim identified the appellant at that second confrontation was harmless beyond a reasonable doubt. In the circumstances here, we agree that it was.
We hold that there was no prejudicial error in the ad
In arguing the contention the appellant refers to Foster v. State of California, 89 S. Ct. 1127, decided 1 April 1969, in support of his contention. But in that case the circumstances surrounding the confrontations were in nowise apposite to the circumstances here. In Foster there was first a lineup in which the accused stood out from the other two men in the lineup by the contrast of his height and by the fact he was wearing a leather jacket similar to that worn by the robber. This did not lead to a positive identification and the police permitted a one-to-one confrontation between the accused and the witness. Even this resulted in only a tentative identification. Some days later another lineup was arranged in which the accused was the only person who had also participated in the first lineup. This finally produced a positive identification. The Court found that the pre-trial confrontations “clearly were so arranged as to make the resulting identifications virtually inevitable.” 89 S. Ct. at 1129: These were not even remotely the circumstances in the case before us.
We deem it advisable to urge caution in the compelling of an accused to wear, at a confrontation, items of clothing similar to those described by a prospective identifying witness as worn by the perpetrator at the time of •the commission of the crime. It would be the better practice for the suspect to appear in the lineup not attired in clothing of peculiar significance to the prospective identifying witness just as it is the better procedure that the suspect not stand out in the lineup by the contrast of his height, weight or other clearly discernible physical appearance.
THE ADMISSION OF EVIDENCE PERTAINING TO THE ASS A ULT OF THE VICTIM WITH INTENT TO MURDER
The appellant was charged in the first count of the indictment returned against him, with assaulting Scott, the
At the trial on the merits Scott related that on 31 May 1968 he was working at a gas station in Anne Arundel County near Fort Meade. Shortly after 8:00 P.M. a 1967 Pontiac, two door hardtop, G.T.O., maroon in color, driven by the appellant, and in which there were no other persons, drove into the station. No one else was in the station. Scott was in the back of the station and when he heard the service bell ring came out. “The guy motioned me like he didn’t want anything. So 1 turned around and went back in the back of the station.” He heard a noise and the appellant was peeking around the corner of the door. Scott walked towards the front of the bay. The appellant said, “Howdy.” “I said, ‘Hi’. And he said — he jerked a pistol and said, ‘This is a holdup.’ ” The appellant ordered Scott to go into the back room and to hand over the money. Scott gave him $136, $15 of which was his and the balance that of the owner. The appellant asked if there was a rope with which he could tie Scott up or a place where he could lock him up but then said, “Get in the car, we’ll go for a ride.” The appellant forced Scott to drive the car and directed him to turn right on the highway by the station. Scott did so and drove to Laurel to Rt. 1, made another right and went down Rt. 1 about 8 miles to Savage, again went, right down past State Perkins Hospital and two or three-miles past the Hospital turned in a long, narrow driveway. There were woods and tall grass. The appellant, ordered him out of the car and told him to take his belt,
The challenged testimony was clearly admissible for a variety of reasons. The appellant was on trial for robbery with a deadly weapon, kidnapping, and assault and battery among other offenses related thereto. The general rule is that evidence is inadmissible ■ to show that an accused had committed another crime unrelated to the crime charged but. that rule does not deprive-the
THE ADMISSION OF TANGIBLE EVIDENCE SEIZED
Immediately after the arrest of the appellant in his apartment the arresting officer seized a gun and bullets from an automobile he had observed parked directly in front of the premises. There is no question but that the officer had probable cause to believe that the felonies of armed robbery and kidnapping had been committed and that the arrestee had committed them. He also had probable cause to believe that a ’67 Maroon Pontiac G. T. O., Delaware license 154086, which he saw in front of the premises, had been used by the arrestee in the commission of the crimes. The appellant contends that the gun and bullets seized were improperly admitted in evidence. As we understand his argument with respect to the contention, he urges the application of the fruit of the poisonous tree doctrine.
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Upon the arrest of the appellant he
THE ADMISSION OF PROOF OF A PRIOR CRIME TO IMPEACH THE CREDIBILITY OF THE APPELLANT
The appellant testified in his own behalf. On cross-examination the State elicited from him that he had previously been convicted of a crime. The information was adduced by the State first asking the appellant if he had been convicted of a crime. Objection was made to the form of the question, the appellant arguing that the question should have been directed to a specific conviction. The court said, “I think he has a right to ask him if he was ever convicted of any crime. That has been done in Maryland for a long time.” We do not think that the question as asked was prejudicially improper. Appellant then argued that the State was going to bring out that the conviction was for assault and that it would be inadmissible as unrelated to armed robbery. The court ruled that it would go to the appellant’s credibility and overruled the objection. The ruling was proper. See
Stewart v. State,
4 Md. App. 565;
Huber v. State,
2 Md. App. 245. It was then, and without further objection, that the appellant said he had been convicted of the crime of assault in Jacksonville, Florida in March 1962 and that was all he had been convicted of. The appellant
Judgments affirmed.
Notes
. United States v. Wade, 388 U. S. 218; Gilbert v. State of California, 388 U. S. 263; Stovall v. Denno, 388 U. S. 293, each decided 12 June 1967.
. We have distinguished between a “confrontation” within the meaning of Wade and Gilbert and a viewing of photographs. Identification by the viewing of photographs is not a critical stage of the proceedings so as to require the presence of counsel. Barnes v. State, 5 Md. App. 144. But we have held that the rationale of Stovall is applicable to a viewing of photographs and that the exclusionary rules of Wade and Gilbert apply to the admissibility of evidence relating to identification by such viewing. Smith and Samuels v. State, supra, at 67.
. There was evidence sufficient for the trial court to find, as it did, that the appellant was informed of his right to the presence of counsel at the lineups and properly waived the right, signing a waiver form which’ was introduced in evidence.
. For a discussion of the procedure upon challenge of evidence of identification see Smith and Samuels v. State, supra, at 67-70.
. The question was also presented in Rodgers v. State, 4 Md. App. 407 but not decided‘by reason of lack of objection to the identification evidence at trial, at 414-415.
. It does not appear that he claims that the search was otherwise invalid so we need not decide that question. It may be, however, that the search was shown by the evidence to have been