Webster v. State

THE CIRCUIT COURT FOR ST. JUDGMENT OF BE PAID BY COSTSTO MARY’SCOUNTYREVERSED. ST. MARY’S COUNTY.

474 A.2d 1305 Bernard WEBSTER

v. Maryland. STATE JOHNSON, Salvadore Salvadore Victor Johnson Victor a/k/a

v. Maryland. STATE of Term, Sept. 1983. Nos. Appeals Maryland.

Court of May Vahle, (Alan Murrell, H. Gerald W. Towson Public De- fender, Baltimore, brief), on the for appellant. Chasanow, Gen., (Ste- K. Atty.

Deborah Asst. Baltimore Sachs, Penner, phen Atty. H. Gen. and Bernard A. Asst. Gen., Baltimore, O’Connor, A. Atty. Sandra State’s Smith, Asst. Atty., Atty., and Jonathan Scott State’s for Co., Towson, brief), Baltimore on the for appellee, appellee. SMITH, ELDRIDGE, COLE, DAVIDSON,

Argued before JJ., ORTH, COUCH, and CHARLES E. RODOWSKY Retired, Jr., Judge. Specially Assigned ORTH, Jr., Retired, CHARLES E. Judge, specially as- signed.

These A appeals lineups. lineup, are concerned with also known as an “identification is parade” “showup,” arranged by police investigating the commission of a crime. It is a confrontation suspect prospec between witnesses, identifying purpose tive and its is to obtain establishing suspect agent. evidence that the is the criminal usually police It is conducted at a station under carefully suspect controlled conditions. The is exhibited amidst other persons similar to him in and the appearance, assemblage position viewed the various witnesses turn. The suspect changed the line may viewings. between Frequently, lights or and one-way microphones windows are so utilized that and persons the witnesses can see hear the exhibited, persons but the exhibited cannot see or hear the witnesses.

An identification made at a is referred to as an trial, or extra-judicial out-of-court identification. At the prosecution may seek to have evidence of an identification admitted, and, impartial made at a under the eye also call a presiding judge, may upon identify witness 590 latter (now accused) in the courtroom. This suspect identifi- to as a or in-court judicial

identification is referred admissibility judicial The of evidence of such cation. appeals. these identifications is the crux of extra-judicial I THE LAW RELATING TO LINEUPS

(a) Prior to Wade—Gilbert—Stovall Maryland Law trilogy of Wade—Gilbert—Stovall time the At the Court of United Supreme decided opinions was 1 judicial in this that a general it rule State States It was also of the accused was admissible. identification had that he testimony that the of a witness general rule admit identification “should be extra-judicial a prior made and bol corroborating witness purpose ted for the ” 168, State, 218 Md. Judy v. stering credibility.... his (1958). a officer 174, Testimony by police 29 146 A.2d identification was extra-judicial as to an party third some precluding circumstances made under admissible when unreliability, provided of unfairness suspicion subject present at trial identifier was out-of-court 239, State, 242 Md. 285, 218 v. cross-examination. Walters 289-291, State, 237 Md. 283, v. Johnson (1966); 678 A.2d wheth (1965). testimony was admissible A.2d 138 Such 206 identifi judicial declarant made not the out-of-court er or only as corroboration cation, and thus was admissible of crimi evidence identification but substantive judicial v. Proctor See 289, 206 A.2d 138. Johnson agency. nal (1960); 394, 398-400, A.2d 708 State, 223 Md. 164 Basoff v. 650-651, (1956). This was State, 208 Md. 643, 119 A.2d 917 59, State, Md.App. v. and Samuels Smith out in all set 1926, 1149, 218, Wade, S.Ct. 18 L.Ed.2d 388 U.S. 1. United States v. 1951, 1178, 263, California, S.Ct. 18 L.Ed.2d 388 U.S. Gilbert v. Denno, each 18 L.Ed.2d 87 S.Ct. v. Stovall 12 June 1967. decided

591 63-64, denied, State, cert. 285, 250 A.2d Smith v. 254 Md. denied, 720, State, cert. Samuels v. (1969), 255 Md. 743 denied, cert. Samuels v. Maryland, 397 U.S. 1057, 90 S.Ct. 1402, (1970). 25 L.Ed.2d 674

(b) Rights Constitutional A Lineup To As

(1) The Fifth Amendment Privilege Against Self-Incrimination The Fifth privilege Amendment against self-incrimina- 2 tion

“offers no protection against compulsion to submit to fingerprinting, photographing, measurements, to write or speak identification, for court, to appear stand, in stance, assume walk, or to particular make a ges- ture.” Schmerber v. California, 757, 384 764, U.S. 86 1826, 1832, S.Ct. 16 (1966). L.Ed.2d 908 “None of these activities becomes testimonial within the scope of privilege because required of the accused pre-trial lineup.” Wade, United States v. 218, 223, 388 U.S. 1926, 1930, 87 S.Ct. (1967). 18 L.Ed.2d 1149

(2) The Sixth Amendment Right To Assistance Of Counsel Wade,

United States v. 218, 1926, 388 87 U.S. S.Ct. 1149, L.Ed.2d Gilbert v. California, 388 U.S.

2. The Fifth Amendment to the Constitution of the United States states: person compelled any "No shall ... criminal case to be a witness against himself----” It has been through extended to the states 1, 3, Malloy Hogan, Fourteenth Amendment. v. 84 S.Ct. (1964). 12 L.Ed.2d 653 Maryland The Rights comparable provision, Declaration of has a “People Maryland” declaring, of the State of ought “That no man compelled give against to be evidence himself in a criminal case.” Maryland provision

Article 22. long recognized "has been being State, pari counterpart.” materia with its federal Richardson v. 261, 265, (1979). 285 Md. 401 A.2d 1021 1951, (1967) post-indict- L.Ed.2d 1178 held “that a S.Ct. 18 pretrial lineup ment at which the accused is exhibited to stage is a the identifying witnesses critical of criminal of such prosecution; police conduct a without in the his denies the notice to and absence of counsel right his Amendment to accused Sixth [and Fourteenth] and, right, counsel ...”3 that absent a waiver of the the 272, illegal. at 87 at 1956. confrontation is Gilbert S.Ct. regard- then fashioned rules exclusionary Wade Gilbert if a lineup its source was tainted ing identifying by evidence counsel, as follows: the absence of the at such 1) The identifications of accused in-court unless the prosecution are to be excluded confrontations convincing clear and evidence the establishes of upon were observations in-court identifications based identifications, than the confrontation suspect other Wade, source”. 388 “independent had they that is that 242, 87 at 1939. at 240 and S.Ct. the accused at 2) that witnesses identified Evidence Gilbert, is to excluded. per such a confrontation se 272-274, 87 at 1956-1957. 388 U.S. at S.Ct. 1) under

3) to be excluded The admission of evidence event, unless, any in its intro- 2) is error prejudicial to Constitution of the United States The Sixth Amendment enjoy prosecutions, provides: criminal accused shall "In all right right his The to Assistance of Counsel for defense.” ... have the through Gide- applicable states the Fourteenth Amendment. 792, 335, (1963). 9 Wainwright, v. 372 U.S. 83 S.Ct. L.Ed.2d 799 on 21, Maryland Rights, has Constitution of Article Declaration clause, "People" declaring: State "That in comparable all every right prosecutions, be allowed man hath ... to criminal counsel____” appeals presented only us the context are However, right right. we now consider the Sixth Amendment pari Art. 21 as in materia counsel counsel clause in State, 201, 217-218, v. Williams 292 Md. under the Sixth Amendment. 347, (1981). Rutherford, v. Md. See 296 438 A.2d 1301 357-358, Rutherford (1983). Raymond Compare State ex rel. 228 v. 464 A.2d 602, 607, (1949). Szydlouski, A.2d 285 192 Md. 65 593 Wade, duction was harmless 242, error. 388 U.S. at 87 Gilbert, 1940; at 274, S.Ct. 388 U.S. at 87 S.Ct. at 1957.4 Samuels, See Smith and 65, 6 Md.App. at 250 A.2d 285. (1) above, The rule set out with respect to the admis- sion of identifications, evidence of in-court applies the test States, Sun quoted in Wong v. United 371 U.S. 407, 417, Wade, (1963).

S.Ct. L.Ed.2d 388 U.S. at Samuels, See Smith 87 S.Ct. at 1939. Md.App. 65, 250 A.2d 285. The Supreme gave Court examples various factors which must be application considered Wong Sun test: prior opportunity observe the alleged criminal

“[T]he act, the any existence of discrepancy between any pre- lineup description and the defendant’s actual description, any identification prior to another person, the identification by picture of the prior defendant to the lineup, failure to identify the defendant prior on a occa- sion, and lapse of time between the alleged act and the lineup identification. It is also relevant to consider which, those facts despite counsel, the absence of are disclosed concerning the conduct of the lineup.” Wade, 241, 388 U.S. at 87 at S.Ct.

The Court of Special Wade Gilbert discussed and Appeals State, length at Tyler v. 265, 5 Md.App. 246 A.2d 634 denied, cert. (1968), denied, (1969), 252 Md. 733 cert. 405 1039, 1317, U.S. 92 S.Ct. 31 (1972); L.Ed.2d 579 in Palmer State, v. 691, 5 Md.App. (1969); 249 A.2d 482 and in Smith Samuels, and 59, 6 Md.App. 250 A.2d 285. recognized

It that the precise holdings of Wade and Gilbert went only post-indictment lineups, Tyler, 246 A.2d 638, at but it believed that the rationale of the holdings, for Palmer, reasons set out in 5 Md.App. 695-696, at 249 A.2d 482, mandated that the exclusionary rules applied also to pre-indictment lineups and to pre-trial other confrontations, 4. Stovall held that Wade and only Gilbert affect those cases and all future cases which involve confrontations purposes for identification conducted in the absence of counsel after 12 June 1967. 388 U.S. at 296, 87 S.Ct. at 1969.

594 indictment, violated constitutional or after which before meaning- to fair and subject and which were not standards Samuels, 6 at and later trial. Smith ful review objective 64, appellate at A.2d 285. intermediate Md.App. 250 indication, implicit at the and court saw Wade Gilbert limited least, holdings post-in- their were not that Palmer, Md.App. It so lineups. held. dictment Thereafter, period jurisdiction in this for 249 A.2d 482. holdings were consist- years, four the Wade-Gilbert some the confrontation ently regard without whether applied State, 17 v. pre-indictment. Jackson post-indictment cert, denied, 268 167, 169, A.2d Md. Md.App. Supreme decided (1973). Then on 7 June 1972 Court 1877, 32 Illinois, 406 92 S.Ct. L.Ed.2d Kirby v. (1972). made and Gilbert did clear Wade Kirby thought Special Appeals those mean what the Court meant.5 cases police on facts. officers was decided these Two

Kirby Bean, on a companion, Ralph Thomas Kirby stopped Bean had certain articles Kirby street.6 Chicago bearing name of Willie Shard. When possession their possession of these satisfactory explanation no for forthcoming, Kirby the officers arrested articles was then police station. The officers Bean and took them reported had that he had been robbed. learned Shard Shard, and police pick up A to he was dispatched car was entering police “Immediately upon brought to station. in the station and Bean were police [Kirby room where ] interpretation Special Appeals of 5. Court of was not alone in its The 682, 1877, Illinois, Kirby U.S. S.Ct. 32 Wade and Gilbert. v. 406 92 (1972), applicability points L.Ed.2d 411 out issue of “[t]he severely pre-indictment Gilbert has divided Wade and to confrontation 687, 5, 1881, n. S.Ct. at n. 5. courts.” 406 U.S. at 92 they stopped [Kirby companion 6. and his because "The officers ] thought [Kirby Hampton, was a man named who ‘wanted’ ] was legitimacy this unrelated criminal offense. The connection Kirby stop subsequent v. Court].” and the arrest is not before [the 684, 1, Illinois, U.S. n. at 1879 406 at 92 S.Ct. n. table, at seated Shard positively identified them as the men who had robbed him two earlier.” days Kirby, 684-685, at 92 S.Ct. at lawyer 1879-1880. No was present and neither Kirby nor Bean had of any been advised right presence of counsel. More than six weeks later Kirby and Bean indicted robbery were for the A Shard. motion pretrial suppress Shard’s identification testimony denied, trial Shard described his identifica- tions at police station and made an in-court identifica- tion of Kirby and Bean as the men who had him. robbed jury The found men guilty, both and Kirby’s conviction was affirmed on appeal. The appellate court held that admission of Shard’s testimony was not error because the exclusionary Wade-Gilbert rules not applicable were pre-indictment confrontations. Supreme Court granted certiorari limited to that issue.

The opinion announcing the judgment of the Court7 con- cluded arrest, that a after showup but before the initiation of any adversary criminal proceeding, whether way formal charge, indictment, information, arraignment, pre- liminary of the hearing type envisioned Coleman v. Alabama, 399 U.S. (1970) S.Ct. 26 L.Ed.2d 387 prosecution a criminal at which the suspect is entitled to counsel. The plurality opinion stated that the Wade-Gilbert exclusionary rule arose from the guarantee right counsel contained in the Sixth and Fourteenth Amendments. Then the opinion plurality observed: “In a line of constitu- tional cases this Court stemming back to the Court’s landmark opinion in Alabama, Powell v. 287 U.S. 55, 77 (1932),

S.Ct. L.Ed. 158 it has firmly been established person’s that a Sixth and Fourteenth Amendment majority 7. A of the Court concurred in the result reached in the opinion announcing judgment Stewart, J., of the Court. an- judgment nounced the Court’s Burger, opinion and delivered an in which C.J., JJ., C.J., Rehnquist, and Blackmun joined. Burger, Powell, J., concurring filed a statement. concurring filed a statement Brennan, J., in the result. dissenting opinion, filed a in which Marshall, JJ., Douglas White, J., joined. dissenting filed a state- ment.

596 adversary that at or after time only

counsel attaches 406 against have been initiated him.” judicial proceedings 688, opinion explained: 92 at 1881. The U.S. at S.Ct. is from proceedings initiation criminal far judicial “The of starting of point a It is the our whole mere formalism. For it is then adversary justice. only criminal system prosecute, has government committed itself that government positions then that the adverse only It is that a defendant solidified. then and defendant have forces of or- prosecutorial himself faced with the finds in of sub- and immersed the intricacies ganized society, point, It this stantive and criminal law. procedural therefore, of the ‘criminal that marks commencement explicit guarantees alone prosecutions’ to which 689-690, at 92 applicable.” are Id. the Sixth Amendment at 1882. S.Ct. in case was asked

The noted that the Court opinion investigation an police “to into a routine import before it historically rationally guarantee absolute constitutional pro only prosecutorial the onset of formal applicable after 690, “We flatly: 92 at 1882. It said ceedings.” Id. at S.Ct. year than a after decline do so.” It recalled less Id. decided, the rule of those decisions and Gilbert were Wade 377, States, 390 in United U.S. explained Simmons v. 967, (1968) “The L.Ed.2d 1247 as follows: 19 S.Ct. that an accused is entitled of those cases was rationale and that any stage prosecution,’ counsel at ‘critical ” stage.’ Kirby, is such a ‘critical post-indictment lineup Simmons, quoting at 92 S.Ct. at 382-383, (Emphasis supplied S.Ct. at 970. U.S. at opinion The continued: “We decline Kirby). Kirby se today by imposing per rationale depart from that testimony concerning identifica exclusionary upon rule any the commencement of place long tion took before 92 S.Ct. at prosecution whatever.” 406 U.S. from its decision has not retreated Supreme Court way, expressly implica- it any nor modified Kirby fact, In affirmed it. consistently In the Court has tion.

597 United States v. Mandujano, 564, 425 U.S. 1768, 96 S.Ct. 48 (1976), L.Ed.2d 212 declared, the Court citing Kirby: “No criminal proceedings had been instituted against re- spondent, hence the Sixth Amendment right to counsel had not come into play.” Id. at 581, 96 S.Ct. at 1779. In Williams, Brewer v. 387, 430 U.S. 1232, 97 S.Ct. 51 L.Ed.2d (1977) 424 the Court said that the basic contours of Kirby, “which are identical state and federal contexts ... are too well established to require extensive elaboration here.” Id. at 398, 97 S.Ct. at 1239. In Illinois, Moore v. 434 U.S. 220, 458, 98 (1977), S.Ct. 54 L.Ed.2d 424 the Court restated and applied the Kirby rule: plurality opinion made “[T]he clear that to counsel announced in Wade and Gilbert only corporeal attaches identifications conducted ‘at or after the initiation of adversary judicial criminal proceedings by way of formal charge, prelimi- —whether ” nary indictment, hearing, information or arraignment.’ Id., 226-227, 434 464, U.S. at 98 S.Ct. at Kirby, quoting 406 689, U.S. at 92 S.Ct. at 1882. The Court continued: “This is so because the initiation of such proceedings ‘marks the commencement of the prosecutions’ ‘criminal to which alone the explicit guarantees of the Sixth Amendment are applica- ” Id. 434 U.S. at ble.’ 227, 464, 98 S.Ct. at quoting Kirby, 690, 406 U.S. at 92 S.Ct. at 1882. The rule was reiterated Smith, Estelle v. 454, 451 469-470, U.S. 1866, 101 S.Ct. 1876, (1981). 68 L.Ed.2d 359 Ash, See United States v. 300, 321-322, 2579-2580, S.Ct. 37 L.Ed.2d 619 (1973) (Stewart, J., concurring).

In light Kirby, Special Court of Appeals, State, Jackson v. 17 Md.App. 300 A.2d cert. denied, (1973), 268 Md. 749 looked again at the position it had taken applied. It said: “The decision of this Court that the holdings of Wade Gilbert were to applied pre-indictment as well as post-indictment confrontations was predicated upon our belief that such application was constitutionally compelled. Now the Supreme Court has made clear that our founded, belief was ill we abandon 171-172, Henceforth, A.2d position.”

our Id. declared, appellate court the intermediate respect holdings Wade Gilbert “[t]he only right to counsel are to be invoked constitutional occurring after initiation of those confrontations at or adversary proceedings by way criminal judicial —whether indictment, hearing, infor- charge, preliminary of formal mation, Therefore, arraignment. exclusionary right to are not to be imposed rules based on counsel concerning an took testimony identification upon prosecu- the commencement of the ‘criminal before place of Id. meaning Kirby.” within the tion’ course, as of a for a writ of certiorari petition Of our denial of put imprimatur to does not this Court on Jackson on Special Appeals. July of But 26 the Court of opinion 273, State, v. 272 Md. 1974 we decided Foster and Forster denied, 419 419, A.2d cert. Foster v. U.S. Maryland, 323 520, (1974). 1036, opinion 42 L.Ed.2d 311 In that 95 S.Ct. Kirby per exclusionary that “the recognized we under se to at or after applied only of were rules Wade-Gilbert initia proceedings had been adversary judicial the time that prelimi by way charge, of formal against ted a defendant 272 indictment, arraignment.” information nary hearing, 284, And approval A.2d 419. we noticed with Md. at 323 had that, light Special Appeals the Court of of Kirby, to applied that and position abandoned its Wade Gilbert 285, In A.2d 419. confrontations. Id. at 323 pre-indictment (1982), 271, Md. 443 A.2d 582 we referred State, 293 Utt v. is a holding post-indictment lineup that Kirby to “[a] prosecution, right to stage of criminal but critical charges have any attach to a before counsel does not 282, short, is brought.” 443 A.2d 582. In it been Id. at that of this firmly established law state now elicit evidence lineups by police conducted to respect right of a counsel agency suspect, criminal does the Sixth and Fourteenth Amendments guaranteed by criminal adversary judicial the initiation not attach before information, indictment, other for- proceedings way of by

599 charge, arraignment, preliminary hearing mal or a which is Alabama, the context of Coleman v. 1, 399 U.S. 90 within 1999, 26 L.Ed.2d 387. S.Ct.

(3) Due Process of Law Although may a defendant not be entitled to Wade Gilbert application of and to his case because the illegal he not in that it which was exhibited was by right tainted a Sixth Amendment to counsel violation, nevertheless, there, open “remains to all persons allege ... the confrontation resulted in prove it infringed right process such unfairness his to due 8 Denno, Stovall v. 293, 299, 1967, 87 law.” S.Ct. 1971, (1967). to due process L.Ed.2d 1199 Amendment, guaranteed by applicable the Fifth law the Fourteenth Amend government, the federal ment, process protects to the states.9 applicable “[D]ue Wade, placed Maryland Gilbert Stovall rule that identifica preclud tion evidence is admissible if obtained under “circumstances ing suspicion unreliability” federal of unfairness or on constitutional State, 273, 286, process grounds, 272 Md. due Foster and Forster v. denied, Maryland, S.Ct. A.2d cert. Foster v. 419 U.S. (1974). 42 L.Ed.2d 311 life, liberty, person deprived property, "No shall of or without ... ” process of Fifth Amendment to the Constitution of the due law.... United States. life, any liberty, property, any deprive person of or "Nor shall State law____” process to the without due Fourteenth Amendment of the United States. Constitution "People Maryland” The of the State of declared in Article 24 of the ought Rights, Maryland, Declaration of Constitution of "That no man freehold, imprisoned be taken or or disseized of his liberties or to privileges, outlawed, exiled, or, manner, any destroyed, or or or life, liberty by judgment deprived property, of his of his or but by phrase peers, The “law of the land” is the Law of land.” synonymous process with "due of law” as used in the Fifth and Fourteenth Amendments to the United States Constitution. Horace 645, 51, Board, 685, denied, League Mann v. 242 Md. 220 A.2d cert. 385 97, 317, State, (1966). U.S. 87 S.Ct. 17 L.Ed.2d 195 3., See v. Crawford 431, 452, (1979). Md. n. 404 A.2d 244 This Court is not at 285 liberty Maryland process against up concept due control- to set 600 of, or tainted against

accused the introduction evidence through un pretrial unreliable identifications obtained by, Illinois, 434 suggestive procedures.” Moore v. necessarily 227, 464; Illinois, at at 406 U.S. at Kirby 98 v. U.S. S.Ct. 690-691, 1882-1883; 409 Biggers, v. U.S. 92 S.Ct. at Neil 380-382, (1972). 196-199, 375, 401 188, 93 34 L.Ed.2d S.Ct. 98, 97 Brathwaite, v. 432 U.S. S.Ct. generally Manson See (1977). 2243, 53 L.Ed.2d 140 gave that the first notice that

It was Stovall Court anything procedures of confrontation suggestiveness 409 argued jury. Biggers, than a matter to be other recognizes at 382. The Court now four at 93 S.Ct. U.S. respect to process grounds of “taint” due degrees on The extra-judicial corporeal confrontation. confrontation may be: Stovall, 388 so. See U.S.

(1) Suggestive, permissibly but 293 S.Ct. L.Ed.2d 18 [87 1199].

(2) (unnecessarily) suggestive. Big- See Impermissibly 375, 34 L.Ed.2d 188 S.Ct.

gers, 409 U.S. 401]. [93 to a give very as to rise (3) suggestive So impermissibly at 198 misidentification. Id. substantial likelihood of at S.Ct. [93 381]. to a give very as to rise

(4) suggestive impermissibly So misidentification. irreparable likelihood of substantial 1972], at Stovall, 301-302 S.Ct. 388 U.S. at See [87 Biggers, at at Simmons, 390 U.S. S.Ct. [88 971]. at 381. S.Ct. depending upon the exclusionary rules The Court fashioned of the confrontation. standard of taint degree testimony of identification admissibility determining guarantee the constitutional required that of fairness 113, 97 at 2252. Brathwaite, U.S. at S.Ct. process. due tainted to to a confrontation respect With Supreme Raymond v. ling States Court. State of the United decisions 610, Szydlouski, at 65 A.2d 285. 192 Md. ex rel.

601 (1) (so degree suggestive impermissibly fourth give rise to a very irreparable substantial likelihood of misidentification):

(a) judicial se extra-judicial per identifications are Brathwaite, to be excluded. See 432 98 U.S. S.Ct. [97 2243, 53 140]; L.Ed.2d Biggers, 409 188 U.S. S.Ct. [93 Simmons, 375, 34 401]; L.Ed.2d 390 U.S. 377 S.Ct. [88 967, 19 1247]; L.Ed.2d

(2) the third degree (so impermissibly suggestive toas give rise to a very substantial likelihood of misidentifica- tion):

(a) extra-judicial identification is to be se per excluded. Biggers See at 198 S.Ct. at [409 U.S.] [93 381]: (b) judicial identification is if admissible “reliable.” Brathwaite; Simmons; Biggers; (3) the second degree (impermissibly suggestive) and degree (suggestive, but permissibly so): first (a) judicial extra-judicial identifications are admissi- “reliable.” Id. if ble clear, Stovall makes the admission of evidence aof

“[A]s showup without more does not violate Big- process.” due gers 409 U.S. at 198, 93 S.Ct. at 382. The test of admissibil- ity is “whether under ‘totality circumstances’ the identification was though reliable even the confrontation procedure was suggestive.” Id. at 93 S.Ct. at 382. See Brathwaite 432 U.S. at 106-107 and at S.Ct. 2253; Stovall at U.S. 87 S.Ct. at 1972. linchpin____” Brathwaite, “[Reliability is at 114, 97 S.Ct. 2253.10 judicial It extra-judicial is obvious that neither a nor an identifica- tion if impermissibly could reliable the confrontation was so suggestive give very as to to a irreparable rise substantial likelihood "irreparable” damage misidentification. If the misidentification is "repaired" per exclusionary cannot be or overcome. Thus se rule reasoned, is for. called And the Court the same is true extra-judicial identification when the likelihood of misidentification although irreparable “very substantial.”

602 out

In the Court set the factors to be considered Biggers, in- They the likelihood of misidentification. evaluating in clude of the witness to the criminal at opportunity

“the view crime, attention, time the witness’ of degree of prior description of the witness’ accuracy criminal, by the wit- certainty the level of demonstrated confrontation, length at the and the of time between ness n and the confrontation.” Id. 409 U.S. at 199- the crime 200, 93 at- 382. S.Ct. Brathwaite, in 432 applied

These factors were iterated 114-117, 97 at 2253-2254.11 at S.Ct. U.S. from the emphasize Supreme what is obvious Court’s

We exclusionary has fashioned two sets of rules It opinions. of reason respect to the admission evidence tainted is constitution- having its source a confrontation which set confrontations at which infirm. One concerns those ally right applies to counsel satisfied. The other pro- to due infringed right those confrontations which applying to be considered in Although cess. factors similar, call for different standards are the two sets rules distinct. separate and are

(c) A Lineup The To At Statutory Right Counsel 335, 372 83 S.Ct. v. U.S. Wainwright, When Gideon 792, (1963) applicable 799 made states 9 L.Ed.2d Fourteenth Amendment federal through the Constitution’s in to counsel embodied the Sixth Constitution’s adversary that “in Amendment, Court made known our court, into who justice, any person haled system criminal Brathwaite, 98, 432 Supreme v. U.S. Court observed Manson 11. “Stovall, 2243, (1977): with its reference S.Ct. 53 L.Ed.2d 140 97 ‘the circumstances,’ continuing Biggerswith its totality ... and not, singly together totality, did establish on ... or stress the same 113, exclusionary process." due at rule new standard of Id. strict and, protected evidentiary at the at “an interest S.Ct. 2252. Stovall 97 same time adversary [recognized] interest in our the limited extent original). (Emphasis system.” Id.

603 poor is too lawyer, hire a cannot be assured a fair trial provided unless counsel is for him.” Id. at 83 S.Ct. 738, 741-742, See Anders v. 386 California, U.S. 87 1396, 1398-1399, (1967); S.Ct. L.Ed.2d Douglas v. 353, 357-358, California, 816-817, 83 S.Ct. (1963). L.Ed.2d 811 In the General Assembly enacted legislation indigents to furnish with counsel criminal proceedings. (1957, A, Md.Code 1983 Repl.Vol.) Art. 27 §§ 1-14. The announced policy was not “to only provide for the realization of the constitutional guarantees of coun in sel the representation indigents of in ... criminal and juvenile proceedings within the State ...” but also “to assure effective assistance and continuity of counsel to indigent accused taken custody into and indigent defend in ants criminal and juvenile proceedings before the courts § the A, of State of Maryland....” Art. 27 1. The Office of Public Defender in was established the executive branch § 3, of the government, and the of duty the Public Defend er to provide legal representation eligible for any indigent § out, defendant spelled was 4. The extent of the represen § 4(d). tation in designated It “shall extend to all in stages the proceedings, including custody, interrogation, preliminary hearing, arraignment, trial, appeal, if any, and shall until continue the final disposition cause, or until assigned is attorney by relieved the Public Defender or order of the court in which the cause is pending.” Id.

It is clear that legal representation by the Public Defender is not limited to proceedings those in which the Sixth Amendment counsel; demands the assistance of the statute contemplates such representation in certain areas beyond § the reach of guarantee. See, 4(b)(2) e.g., as explicat- § 2(h)(2). ed by The Supreme Court has recognized that a post-indictment pretrial lineup is a stage critical of a crimi- nal prosecution, invoking the Sixth right Amendment Gilbert, counsel. 388 U.S. at Al- S.Ct. though under that Court’s reasoning does not attach pre-indictment to a lineup, such a is neverthe- who, course, of in stage suspect, a critical for the is

less a though at the time. Even is not encom- custody § 4(b) passed designated of cases types within Defender, for the assistance of the Public we calling believe confrontation, a arranged by police, at which that such is to obtain that he is suspect exhibited order evidence agent, the criminal is within the ambit of the Public Defend- er whether conducted before or after initiation statute in the adversary proceedings criminal contem- judicial plation of Kirby. provides the federal nor the State

Neither Constitution rights infringed. are But guaranteed sanctions when has it to fashion sanc- Supreme necessary Court found affect the when violations the federal Constitution tions does The Public Defender statute justice. administration its are imposed out sanctions to be when mandates not set course, imposed the sanction to be not satisfied. Of or his is representative Defender who respect Public usually a matter for executive delinquent his duties affects but, delinquency adversely department, when trial, judiciary it is encumbent upon the fairness not We thereby prejudiced. that the defendant is assure evi- consider, therefore, admissibility the of identification illegal lineup from a which was because emanating dence suspect did furnish the exhibited the Public Defender by required of counsel the statute. the assistance lineup illegal when a is We first observe that circumstances, and are at prosecutor the the police such of the notify if failed to the Defender only they fault Public he of is otherwise unaware when impending lineup, If notice of the has been where it is be held. due Defender, respond proper the his failure to given to Public authorities, and ly be laid on the law enforcement cannot that they assure will imposed not call for a sanction does right presence the statutory the respect suspect’s Therefore, rule per exclusionary the a lineup. at se counsel prosecutor the has police is when the only to be invoked unaware Defender of to inform an otherwise Public failed prospective lineup. circumstances, however, In such the per se exclusion attaches the admission evidence only of an made extra-judicial lineup. identification at the illegal The purpose barring of a strict rule deter evidence is to law improper enforcement authorities from procedures prejudice which defendant’s to a fair per trial. se rule is on the assumption not based that in instance every illegal admission of evidence at an offends confrontation due process. Biggers, 409 at at 382. S.Ct. While the of the failure Defender to provide Public assistance of counsel after due notice is not of the the fault authorities, law enforcement is it of the neither the fault suspect. Justice would not by admitting be served simply evidence tainted aby lineup illegal which is of the because statutorily required absence of it counsel. Nor would be accord with the law of this as it State was before Supreme opinions 1(a) Court on the matter. See Part this opinion. have held respect We to a rendered illegal by the absence of representing counsel the Public Defender, that, when the law enforcement are at authorities fault, identification evidence lineup per obtained se that, barred. regardless fault, We further hold all other evidence, identification extra-judicial judicial, both which has lineup, as its the illegal may source be admitted if, under totality circumstances, of the the identification was reliable. This applies the framed by Supreme test Court for the admission impressed of identification evidence with a taint of the due process variety. To evaluate reliability evidence the same factors are to be con- sidered suggested as those Supreme Court case 1(b)(3) of a due process opinion. taint. Part See of this

(d) Summary (1) The guarantee constitutional self-in- against apply lineup. crimination does not to a (2) right The constitutional to assistance of coun lineup sel does not attach to a conducted a suspect before an becomes accused.

(i) suspect only A becomes an accused at and after the initiation of criminal adversary judicial proceedings indictment, information, other formal by way charge, arraignment, or preliminary hearing.

(3) is in a lineup, When accused exhibited attaches, right constitutional assistance counsel waived, and unless absence counsel illegal. renders the lineup

(i) Evidence that the accused was identified at such a lineup is to be excluded se. per

(ii) A identification is to be excluded unless judicial proves by convincing the State clear and evidence that the identification has a source independent illegal lineup.

(a) In determining judicial whether the identification independent had an source the factors to considered should include:

(aa) prior opportunity alleged to observe the act; criminal

(bb) any discrepancy any the existence of between pre-lineup description and the defendant’s actual de- scription;

(cc) per- identification of another any prior lineup son;

(dd) picture the identification of the defendant prior lineup;

(ee) identify prior failure to the defendant on a occa- sion;

(ff) lapse alleged of time between the act and the identification; (gg) those facts are concerning which disclosed lineup. conduct of the

(4) Identification evidence its having which, although source a not rendered constitution- ally illegal counsel, by the absence of is nonetheless suggestive, is if process admissible it does not due offend of law.

(i) It does not offend process if, due of law under the circumstances, totality it is reliable.

(ii) Its is reliability according degree evaluated to which the is lineup suggestive.

(a) If the is lineup so as impermissibly suggestive give rise to a very substantial of irreparable likelihood misidentification, judicial evidence of both and an extra-judicial identification is stemming therefrom to be excluded se as per unreliable.

(b) If the is so lineup suggestive as to impermissibly give rise substantial very likelihood of misidentifi- (but so): cation not irreparably (aa) evidence to an identification made thereat is to be excluded per se.

(bb) a judicial stemming identification therefrom is if admissible under the totality reliable of the circum- stances.

(c) If the is lineup unnecessarily (impermissibly) sug- gestive, suggestive so, (permissibly) but necessarily a judicial both identification and evidence of an identifi- cation made thereat are admissible if reliable under the totality of circumstances.

(5) evaluating In of an reliability identifica tion under the of totality circumstances factors to be considered shall include the following:

(i) the of the witness to view opportunity the criminal crime; time of the (ii) degree the witness’ attention; of (iii) the accuracy prior description witness’ criminal; (iv) level of certainty demonstrated the wit- confrontation; ness at the

(v) length of time between the crime and the confrontation. requires the assistance

(6) The Defender statute Public held in a either any person counsel for exhibited adversary criminal judicial or after the initiation before of this stat- A conducted violation proceedings. illegal. utory is to law

(i) If absence of counsel attributable the authorities: enforcement lineup the is

(a) of identification made at evidence an se; per to be excluded if

(b) reliable a identification is admissible judicial the circumstances. totality the under the (ii) If is to the absence of counsel attributable Public Defender: of an

(a) a identification and evidence judicial both if reli- made at the are admissible identification totality the of the circumstances. able under under (iii) reliability of the evaluating In evidence circumstances, to the factors be totality (5) in those set out above. considered shall include (3), to excluded under (7) The of evidence admission event, unless, any in error (4), (6) prejudicial above in contemplation was error its introduction harmless State, (1976). Md. 350 A.2d 665 v. Dorsey II THE CASE WEBSTER days Six raped July on 6 Sally Ann Bowen was of a for the issuance State- police applied a detective later probable out cause that Bernard Charges, setting ment of com- rapist. A Court Maryland was the District Webster Charges, a Statement of which promptly missioner issued time, degree rape. with first At same charged Webster a warrant for arrest. commissioner issued Webster’s on arrest of July by executed The warrant was in a lineup he was day, the same exhibited Webster. On agent. July the criminal On 30 identified as positively a preliminary hearing. August waived On Webster degree criminal information him first charging rape and related offenses was filed the Circuit Court for He County. jury, Baltimore was tried before convicted degree the first and a related offense and sentenced rape a total of 30 He years. appeal. noted On our own motion certified the to us for prior we record review Special Appeals. decision Court filed four motions seeking suppress any judi- Webster him extra-judicial cial identification of and all of an evidence him. identification of The reasons set out the motions down to a claim that illegal boil because it right was conducted in violation of his Sixth Amendment the assistance of counsel in derogation of his Four- guarantee process teenth Amendment of due of law.12 There pre-trial hearing was a on the motions. At the outset, the suggested State that because of unusual circum- stances surrounding lineup regarding to coun- sel, even if the court preliminary ruling “makes a that there was no taint or undue suggestiveness, the State still would prefer to proceed try independent ... and establish an source an in-court [for identification].”

The surrounding lineup unusual circumstances the re- garding right brought the to counsel out at the were hearing on the motions. At the time the decided to police exhibit Webster in a he was not lineup represented by counsel, and, indigent.13 that apparently, was So Webster lineup, would have the assistance of counsel at the the police informed the Public Defender for Baltimore County Jr., the impending lineup, Aguilar, and Robert B. Defender, employee of the to monitor dispatched Public was proceedings. Aguilar was not then licensed to practice sought any suppress 12. The fourth motion “to out of court voice him, they identifications because were made while witnesses him, Right could see and thus ... violated his Fourteenth Amendment 1(b)(3) opinion. of Due Process.” See Part of this charge 13. Webster was arrested on the here while incarcerated in the City charges. Baltimore Jail on unrelated 610 circumstances, but, he

law, as natural was was Webster.14 accepted by police duly representing Aguilar. conducted under the observation lineup was rapist. identified as the positively Webster was suppress. denied the motion to With The trial court claim, the court said: right to the to counsel respect testimony as to the suppress “The Court will not clerk technical that the was grounds on the sheer lineup or second merely year a third lawyer not a licensed but time, To rule otherwise would law student. year, at sub- important form over meaningless to exalt ____” stance correct, for a different although

The court’s decision was State, Md. v. expressed. See Robeson reason than (1979), denied, v. cert. Robeson 498, 502, 403 A.2d 680, 1021, 62 L.Ed.2d 100 S.Ct. Maryland, (1980). of counsel at us that the before absence argues

Webster to counsel right his Amendment infringed Sixth lineup Therefore, illegal. rendered the thereby were and Gilbert rules enunciated Wade exclusionary made that evidence as to identifications urges He invoked. in-court excluded and that se to be per at the was their source was because were inadmissible identifications however, tenable, is not argument His lineup. illegal lineup. at'the time of he not an “accused” because Wade, right usually "Although means a to counsel notes: counsel, may be provision counsel suspect’s for substitute own speaks, S.Ct. at n. 27. It justified....” U.S. at n. 87 388 however, only of “counsel.” in terms did why Public Defender does not disclose The record before us lineup. represent at the At of the bar to Webster a member not send the Public Defender hearing, offered to call to the stand the State “concerning testify County the office and his assistant for Baltimore Aguilar up events led to this Mr. procedure that occurred and what however, judge, that such trial believed going there.” The down that in in the circumstances. He was “sure was immaterial evidence repeated.” not be the situation will the future (a) The Sixth Amendment Claim respect have seen with to a that the lineup We right Sixth or Amendment counsel attaches after only of adversary judicial proceedings initiation criminal indictment, information, way charge, of other ar formal raignment, hearing. (b)(2) or of preliminary See Part I this opinion. The was held before the of the return and, course, information on which he was tried of before he arraigned was thereon. There was no preliminary hearing, as it was The of Charges waived. Statement arrest prior warrant were issued lineup, quali but neither charge.” fied as a Charges “formal Statement of charged degree rape. felony Webster with first That jurisdiction court, and, within the exclusive of the circuit therefore, Charges Statement of did not a constitute charging under document which defendant be tried. may (1974, Maryland Repl.Vol., Cum.Supp.), Code § 4-302(a) of Courts and Proceedings Judicial Article. Gee, (1983). See State 298 Md. v. A.2d 712 Like wise, a warrant of arrest is formal charge not a because 710; arrestee cannot be tried thereon. Rule Maryland course, M.D.R. 710. Of prior Webster was arrested lineup, but is perfectly apparent it from and its Kirby progeny that arrest does not adversary constitute an judicial criminal proceeding in the Sixth Amendment lineup context. It follows that was Webster counsel— not an “accused” at the time was lineup. he exhibited in the Thus, the Sixth Amendment did not command the assistance of counsel him. Ergo, for rendered counsel, illegal by the absence of and the exclusionary rules were into play.15 Wade-Gilbert not called judge holding. Kirby 15. The trial was not unaware He ob- served: indictment, any do not have formal information "[Y]ou charge rape, where is a it the case cannot be tried on statement charges, may it beyond scope so well be this case is hold, right We as to the Amendment to counsel Sixth suppress claim the the motions to not that denial of was trial, erroneous, that, did err in judge and the not extra-judi- in-court and evidence of receiving identifications at the lineup. cial identifications made

(b) Due Process Claim The presents only his Sixth Amendment Webster and, therefore, claim on the appeal counsel abandons the in allegation suppress in his motions that manner lineup infringed conducted due of process which the was event, In had any law. Md.Rule 846 f. the State See motions, re suggested, hearing at the on the the judge on the was question lineup ceived evidence the whether than counsel. The by judge tainted other the absence of Aguilar of concern comprehensive testimony considered the ing lineup, his close conduct of viewed scrutiny showing composition lineup three of the photographs persons, admidst four other positions Webster various and counsel. He concluded: argument heard fair very lineup, fact is this was a which

“The no There not taint identification. anybody’s would any the case lacks Certainly, involved. suggestibility process____” due lack of suggestion other any “The is without taint He asserted: [than to the absence of due counsel].” In collateral attack on anticipation possible of a case, indepen- have made an entered in this we judgments and proceedings of the record appraisal dent constitutional en- prevent unnecessary expense to avoid further Defend- judiciary, on the time of Public croachment accord complete are er General. We Attorney Gilbert, finally Appeals has concluded the Court of Wade and which filing charge." formal require only past of a counsel seen, rely judge on this notion supra, As did we have up picked it the defense denying the State nor the motion. Neither appeal. pursued on it below or trial here findings judge. with the assumption confidently Supreme validates the made “that confrontations for identification can and Court be often have been conducted the absence of counsel with scrupulous fairness and to the prejudice without accused at Stovall, hold, trial.” 388 U.S. at 87 S.Ct. at 1971. We claim, as to the due process the denial the motions to suppress erroneous, that, trial, was not and at did judge in receiving not err in-court identifications and evidence of extra-judicial identifications made at the lineup.

(c) The Right To Counsel Under The Defender Public Statute

We have seen that the Public Defender statute Therefore, lineup. commands the assistance of counsel at a the absence of counsel at the which Webster was lineup illegal. exhibited rendered 'the The identification evidence, however, was admitted at the properly trial.

absence of counsel was certainly attributable to law authorities, who, solicitation, enforcement made without every reasonable effort to afford Webster the assistance of counsel.16 independent appraisal, And on our constitutional considered, made regard with due to the factors to be we clear, claim, find it assessing process as we did in the due that the identification evidence was reliable under the totali (d)(6)(h) I See ty (iii) circumstances. Part this opinion. respect With required assistance of counsel by statute, the Public judge Defender the trial did not err in the denial of the suppress motions to and in the admission of identification evidence.

16. We note that the trial judge made sure that the record indicated the any testimony requested absence of judge that Webster counsel. The opined: request by police department "The for counsel was initiated rights safeguarded, effort to see that the defendant’s were and to subsequently subject see that would not to an attack suppress.” under a motion to

Ill THE JOHNSON CASE 22On July four men entered the Memco De partment Store before it opened business, for gun and at point robbed store employees, stealing money belonging to the store and money property belonging to certain of the employees. July police On 30 a applied officer for a Statement of Charges probable on cause that Victor Salva Johnson, dore also known Johnson, as Salvadore Victor one of the robbers. The same day Maryland District Court commissioner issued a Charges, Statement of where charged Johnson was with armed robbery the use of handgun its- A commission. warrant for the arrest of appended Johnson was thereto. The warrant was executed 1 August by on the arrest of Johnson. He was exhibited lineup by conducted police August. on An indict ment charging him with the armed robberies related offenses was handed to the Circuit Court for Baltimore on County August, aborting thus a preliminary hearing which had been scheduled for 26 August. When Johnson appeared in court counsel, on September without arraign ment postponed. was The appearance of counsel to repre sent him was entered on 10 September.

Johnson went to trial in the Circuit Court for Baltimore on 21 County October and a convicted him jury of five offenses of with a robbery deadly weapon and various related crimes. He was sentenced to a total of 25 years. appealed He from the judgments. Before decision by the Special ordered, Court of Appeals, motion, we on our own the record and proceedings be certified to us for review.

Johnson filed two preliminary suppress motions to evi- dence. sought One any exclude “in court identification himof because the out of court identifications- of him violated his 6th Amendment right to counsel or his Four- teenth Amendment process.” due The other mo- tion asked “the court to suppress the line-up identification made of him out of court because it overly suggestive and violated his 14th Amendment process due right.” trial judge deemed these challenge motions to the lineup on Sixth Amendment grounds (“right counsel”), and on Fourteenth Amendment grounds (“suggestibility”). After a plenary pre-trial hearing, he denied the motions.

(a) The Sixth Amendment Claim The factual circumstances with respect which Johnson was exhibited and the in which Web- ster was exhibited are on all fours. In each instance the police informed the Public Defender impending line- up, each time the Public Defender dispatched Aguilar, law, not then licensed practice proceed- to monitor the ings. case, In each lineup preceded charge formal (here indictment),17 arraignment. each, and the In there Thus, was no preliminary hearing. at the time of the Johnson, lineup, Webster, like was not an accused because adversary judicial criminal proceedings by way of indict- ment, information, other formal charge, arraignment, or preliminary hearing, had not then been initiated. It follows that the Sixth Amendment did not command that Johnson have the assistance of counsel at the lineup and that the exclusionary rules mandated by Wade—Gilbert were not invoked. Webster, We so found as to and we so find as to Johnson. hold,

We as to the Sixth right Amendment to counsel claim, that the denial of the motion seeking to suppress any case, 17. As in charges Webster’s the statement respect of Johnson jurisdiction included an offense within the exclusive of the court, It, circuit therefore, and Johnson could not be tried on that document. charge.” 11(a) did not constitute a "formal See Part of this Gee, opinion, citing (1983). to State v. 298 Md. 471 A.2d 712 erroneous, the trial and that was not in-court identification the identifications.18 receiving judicial not err in judge did (at the trial nor the State judge, that neither We observe (at appeal), trial and on trial on nor the defense appeal), recognized application Kirby nor police, told the Attorney frankly The State’s lineup. Assistant court: for the State position it’s a difficult

“Unquestionably Motion____ I Quite frankly, Judge, argue in to this it____ this why I don’t know don’t how to defend know [Bjecause suppressed____ should not be [the actions, inup can stand Public [the defense] Defender’s] the lineup. the case. Throw out throw out say, court you I don’t see what alternative Quite frankly Judge, have.” Amend- frame of reference Sixth

Speaking ment, said: judge that an no that this court believes

“Let there be doubt The defend- attorney. that is an attorney required, was represent at this right attorney ant had a to an interests.” his the motion as to denying these reasons for judge gave Amendment claim:

the Sixth act, act illegal no wrongful committed no State has “[T]he with what conduct was accordance that I can see. Its I said it should be. Because believe the courts have representation understood the Defender’s Office Public defendant, brought their misconduct that and it was dilemma, pur- I that the this and because believe about to prevent Rule is purpose Suppression or a pose other future enforcement and by in the law reoccurrence I and because believe agencies, governmental unlawful, although Mr. Aguilar, representation wants to have adequate than and because State more indepen- whether there’s also an to determine indicated, suppress evi- the other motion to went 18. As we have extra-judicial identifications. No such evidence was admit- dence of trial, at the so that motion is moot. ted or even offered

617 persons or the lineup, dent source recollection those the to to may go opposed State choose that route as identification, course, relying lineup on the and of reserv- ing that, it get the defense an into if opportunity chooses.” any event, reasons,

In no matter what judge his the was in denying correct the motion as to the Sixth Amendment 502, State, claim. v. 285 Md. at 403 A.2d 1221. Robeson proceeded pre The State to adduce evidence at the hearing trial to establish that in-court identifications made viewing lineup those by independent had an source. This was as far as the surplusage Sixth Amendment claim concerned, because, seen, exclusionary was as we have invoked, rules Wade—Gilbert were not and it was not prove necessary convincing for State clear and judicial attending evidence that a made by identification one lineup an independent had source.

(b) The Due Process Claim pre-trial hearing on motions went also to John- due At process son’s claim. the close of the evidence and counsel, hearing argument after the judge was not persuaded that was lineup “impermissibly suggestive it He suggestive.” that was suppress denied motion to 19 respect “with to ... suggestibility.” judge "suggested Johnson has notion below that the it, judge way. tainted.” We do not read the As we see judge suppress denied respect after the motions to counsel, right to he though wanted to cover all bases. Even he had violated, found that the Sixth Amendment was not he was obviously wrong, presence that if he aware was found to be and the required constitutionally lineup, counsel was at the an in-court identi fication was nevertheless admissible if it could be shown that it had independent source of the tainted confrontation. Smith and Samuels State, 59, 65, 285, denied, State, Md.App. v. 6 A.2d cert. 250 Smith v. State, denied, (1969), Md. cert. Samuels v. 255 Md. 743 cert. denied, Maryland, v. Samuels 90 S.Ct. 25 L.Ed.2d Therefore, (1970). suggested he that the be treated “in the independent appraisal constitutional

We now make an make lineup suggestive the so as to ascertain whether was stemming identifications therefrom judicial the admission of this of We are aided in infringe process on due law. thorough hearing. The record by plenary the appraisal procedures the followed paints picture us a clear of before transpired. problem what The fully actually and recounts 230-236, reconstruction, Wade, feared in at so 1933-1937, present here. simply 87 S.Ct. by note the appraisal played

At the of our we role outset law, to practice not then licensed we Aguilar. Although man from records before us that he was a mature glean had a from age degree who received bachelor’s years College, degree and master’s from Johns Widener he had University. Apparently, completed Hopkins time year of law school. At the of the trial second Johnson, English as “an teacher Aguilar employed was and “a County System” part-time the Baltimore School had Defender____” He had of the Public job with Office duties at here lineups. lineup attended two other His “to “suggestibility” to see was avoided and any were that He testified guarantee integrity process.” his lineup in the suggestibility

“first to avoid duty any was procedures any and those to answer safeguard and regard, have in that might the Defendant questions that during him on I did several occasions speak and speak To confer and and lineup, both before afterwards. conducting police officers who were them to remove suggestions to make order any lineup ... advised in the any possible suggestibility [and] he was faced with charges being the Defendant happening____” and what situation taint,” plenary hearing give proceeded of a to conduct nature the State that dent of the convincing opportunity clear and evidence to show indepen- any judicial was offered at trial was identification that lineup. The record discloses that Aguilar performed his duties well. There were lineup. five men in the He requested that position Johnson’s be changed between the viewings various and the police complied request. Aguilar with the testified that there suggestion was no made “as to which person to pick.” His only procedure concern about the was that Johnson seemed to be the “stockiest” exhibited, of those and that appeared his skin Aguilar to be darker. also thought that the beards on appeared two of the men to be “fake.”

Three photographs of were admitted evi- dence, each with Johnson in position. a different All of the men are black. Although Johnson’s skin tone seem to may be darker than others, that of the it is not remarkably so. There is no outstanding difference in the hair styles. Any difference in build does not appear great, to be in part due to attire, the fact that the men’s which is identical except shoes, for their is a loose-fitting type jump suit. It is not disputed that the shoes were not visible to those viewing the lineup. Three of the men sport beards of a similar type. beards, The Johnson’s, false, other than were in but our view this is not apparent. readily

A detective who was present at the lineup testified about procedure which is followed. The witnesses assemble outside the viewing room. one Only witness at a time views lineup. They are cautioned not to discuss the lineup with any other If person. a witness makes an identification he is taken to an office to complete form and statement “as pick.” If the witness does not make an [his] identifi- cation, he is “escorted out.” The detective stated that seven witnesses viewed the lineup. No suggestion was made to any of them respect with to a selection. Of the persons who viewed lineup, four Johnson, identified two failed to make an identification, and one identified wrong man.

The record clearly reflects that the Johnson line up, like the Webster lineup, was “conducted in the absence prejudice and without scrupulous fairness

of counsel with 299, 88 at Stovall, 388 at S.Ct. U.S. the accused trial.” quarrel had no with that Johnson appears It followed, composition with the only but viewing procedure composed not fair need be lineup A be lineup. of the persons to assemble five impossible clones. It would and, course, is not same, this exactly look who 550, 556-557, State, 224 Md. Presley v. required. See v. (1961), Presley Maryland, denied A.2d 510 cert. Here, (1962). readily as is 399, 7 L.Ed.2d 389 82 S.Ct. the five lineup, of the photographs from the

ascertainable reasonably and were identically dressed men exhibited were lineup was not physique. physiognomy similar or in the composition in its either suggestive, one whit fully comported It it was conducted. manner which requirement of the constitutional required by that fairness no Therefore, presented bar process. due identifications; exclu no of the judicial admission at trial rules were invoked. sionary process due hold, Amendment to the Fourteenth

We any seeking suppress motion claim, denial erroneous, that the trial in-court identification was identifications. receiving judicial did not err judge inwas that the our determination Ordinarily, process due of Johnson’s dispose would way suggestive no think, however, present it is desirable claim. We court, nor the trial decision. Neither alternative basis test to the be State, recognized proper nor the defense the on due attacked lineup of a resolving legality in the applied “independent them looked to Each of grounds. process but, out Gilbert, pointed as we have rule of source” Wade— lineup which only concerned that rule is supra, It is grounds. counsel right to Amendment illegal on Sixth evidence of identification admissibility the test for grounds. process due Amendment on Fourteenth challenged court, prosecutors, the trial Therefore, guidance for the as did the lineup at the look we shall attorneys, defense court, did, assuming, lineup trial as it that the arguendo, Since, event, suggestive. any lineup was here could good not with reason deemed to so impermissibly be suggestive give very as to rise to a likelihood of substantial misidentification, consider, irreparable we shall for the decision, it tainted to the purpose highest that was next degree, that it so namely, impermissibly suggestive was give rise to a likelihood of misidentifica- very substantial admissibility judicial tion. The test of the of a identification from a so tainted is it is reliable stemming whether totality under the of the circumstances. The evaluation of include the out in the identification must five factors set 199-200, 409 U.S. at 93 S.Ct. at and reiterated Biggers, make opinion supra. required analysis in this We the record here. light of witnesses, Heward, Margaret Four Anita Lyons, Wendi Wilson, and Alonso made an in-court identification of Ray, had Johnson as one of the robbers. Each witnesses ample Lyons to view Johnson. saw him at opportunity close minutes quarters robbery. few before Heward him during robbery saw at a distance of four feet. feet of during robbery, Johnson was within five Wilson “face to face.” He in her presence was about twelve Ray minutes. saw when he first came into the Johnson during store and later the course of the robbery they when passed Ray eyes.” “looked dead None of [Johnson’s] the witnesses was a or passing casual observer. Other than Lyons, each was in the actually robbery, involved and, in subjected varying degrees, to threats to physical was, therefore, degree mistreatment. Their of attention intense. Although previ- record does not disclose what description ous of Johnson given police, eight was days after the identified robbery Lyons Johnson at an extra-judicial photographic display. suggestion There is no viewing this did not conform to due fully process standards. The witnesses did not indicate any uncertainty respective in their identifications. The time between only days. crime and the thirteen in all this assur- part analysis, it no our Although plays from the of the identifications evidence reliability ance as to hardly factors to be considered is analysis our of the five off-duty that Anne Arundel the fact an by undermined car driving get-away officer saw Johnson County police that robbery. Surely say we cannot immediately after is a very of this case there under all the circumstances of that likelihood of misidentification. “Short substantial Brathwaite, weigh.” jury is for evidence such point, in that at 2254. As the Court said 97 S.Ct. case: judg- sense and rely upon good content to

“We are element for evidence with some juries, ment of American for the mill. customary grist jury of untrustworthiness cannot measure susceptible they not so Juries are testimony of identification weight intelligently feature.” Id. questionable has some Supreme laid down that the criteria We conclude an in-court identifi- admissibility of determining in Court satisfactorily confrontation were following a tainted cation met. claim, that, hold, process to the due respect

We assumed, the lineup which we have the taint of the despite identifications the in-court suppress of the motion to denial trial did not err judge that the not erroneous and was those identifications. admitting

(c) Defender Statute Under The Public To Counsel Right Johnson decided exhibit police At the time counsel, and, at least to represented by lineup he was the means to he did not have police, the satisfaction the Public De police notified attorney. an So employ that the constitu order impending fender of counsel, police as the the assistance for imperative tional be, satisfied. it to would be believed in his that John- correct observation judge The trial at this attorney present son “had interests,” seen, but, right as did represent his we have Amendment, thought, from the as the judge not arise Sixth As but from the Public Defender statute. with exhibited, which Webster was the failure the Public provide Defender to rendered the conduct attorney also, in the case of lineup illegal. the Johnson But Webster, of the did not call for the illegality per analysis se exclusion of the identifications. As our judicial respect process due claim abundantly Johnson’s clear, makes the test for the of the admissibility identifica- tions the record completely say, was satisfied. That is reflects that under the totality circumstances and, thus, identifications were admis- properly reliable were sible. respect right

We hold with to the to counsel statutory suppress the denial of the motion to was not erroneous and that did err in judge admitting judicial identifications of Johnson.

No question regarding was raised below either case statutory counsel, which, this right unlike the Sixth right, Amendment accrues regardless of whether the con- frontation occurs person before after the exhibited lineup becomes an “accused.” Nor the point presented in the filed in the appeal briefs Webster or the Johnson however, appeal. appeals, The two were consolidated for us, argument during before oral argument point up came at the instance of the Court. Md.Rule 846 f. See Even though question this of law was not tried and decided court, by the circuit we have decided it think because we that it is to do for necessary guidance desirable so court, of the lower and for the edification of the Public Defender the various law enforcement authorities. Md. Rule 885. TERM, 1983, NO. SEPTEMBER

AS TO WEBSTER STATE, AFFIRMED; BE V. JUDGMENTS COSTS TO PAID BY APPELLANT. TERM,

AS TO NO. SEPTEMBER JOHNSON STATE, AFFIRMED; TO BE V. JUDGMENTS COSTS PAID BY APPELLANT.

DAVIDSON, Judge, dissenting: respect to the constitutional to the assistance right With in the to the United of counsel embodied Sixth Amendment Constitution, majority recognizes following States principles:

1. The constitutional assistance of counsel lineup only attaches to a after indictment.1 waived, the is Unless to counsel the absence of right 2. lineup at a renders the post-indictment lineup counsel illegal. for is that applicable illegality sanction such

3. a post-indict- of an identification made at evidence lineup to excluded per ment is be se. right the assistance of respect statutory

With (1957, Repl.Vol.), 1983 Maryland embodied in Code counsel §§ Statute), (Public 27A, 1 14 through Art. Defender following principles: establishes majority of counsel at- statutory right 1. The assistance indictment. to a as well as after lineup taches before waived, to counsel absence right 2. Unless as a post-in- at a as well pre-indictment lineup, counsel illegal. lineup, lineup renders dictment are illegality for applicable 3. The sanctions such follows: counsel law

a. If the absence of is attributable authorities, an identification evidence of enforcement pre-indictment post-indictment or is to made at per excluded se. dissenting opinion, Throughout this the word "indictment" means indictment, information, arraignment charges, pre- other formal liminary hearing. If b. the absence of counsel is attributable to the defender, public evidence of an identification made at a pre-indictment or post-indictment lineup is admissible if reliable totality under the of circumstances. agree

I with principles all of the enunciated by majority except relating applicable sanction when absence of counsel is attributable to the public defender. circumstances, Under such the majority’s appli- cation of a sanction other than a per exclusionary se rule when the statutory right to counsel is post-in- violated at a dictment is inconsistent with per se exclusionary rule established the United Supreme States Court for enforcement of the constitutional to counsel. Equally important, the application of a sanction other than the per se exclusionary rule when the right to statutory counsel is pre-indictment violated at a lineup is inconsistent with the intent of the General Assembly and is antithetical to the purpose of the statutory right to counsel.

The legislative history of the Statute, Public Defender 1971, enacted illuminates the General Assembly’s intent respect to an appropriate sanction for a violation of the statutory right to pre-indictment counsel at a lineup. See State, 235, 246, Scott v. Md. (1983); 465 A.2d Department State v. Planning Mayor Hagerstown, 9, 14, 288 Md. (1980). 415 A.2d In the United Supreme States Court in Wade, United States v. 388 U.S. 218, 236-37, 1926, 87 1937, S.Ct. (1967), 18 L.Ed.2d 1149 held that the right constitutional to counsel attaches to a post-indictment Moreover, lineup. California, Gilbert v. 263, 273, 388 1951, 1957, U.S. 87 S.Ct. 18 L.Ed.2d 1178 (1967), the Supreme Court held that a per se exclusionary rule was to applied be as a sanction post-indictment when a lineup was illegal because of an absence of counsel. 1969,

In Special Appeals Court of of Maryland decided State, 691, Palmer v. 5 Md.App. (1969). 249 A.2d 482 There, Judge Orth, then a Court, member of that initially stated that “the rules of Wade and Gilbert also apply to a indictment____” lineup conducted before of Spe- Court 626 right the constitutional that determined Appeals

cial lineup. Significantly, pre-indictment attaches to a counsel rule was to be se exclusionary per held that that Court lineup was pre-indictment when a a sanction applied Palmer, 5 Md. counsel. of an absence illegal because Thereafter, the Court at 488. 698-99, 249 A.2d App. principles, the same enunciated consistently Special Appeals rule was per se exclusionary that a principle including evidence applied whenever sanction be appropriate in the conducted pre-indictment at a obtained 628, State, Md.App. v. 9 Billinger E.g., of counsel. absence State, Md.App. v. 9 McChan (1970); 275, 276 630, A.2d 267 State, Md.App. v. 8 Cook (1970); 133, 135 317, 319, A.2d 264 State, 7 v. (1969); Joyner 326, 246-47, A.2d 329 243, 259 v. Watson 444, (1969); 449 692, 698-99, 257 A.2d Md.App. (1969); 103, 108 234-35, A.2d State, Md.App. 225, 255 7 289, 285, 59, 64-65, A.2d State, Md.App. 250 v. 6 Smith denied, 397 U.S. cert. (1969), denied, 254 Md. 720 cert. (1970). 674 1402, 25 L.Ed.2d 1057, 90 S.Ct. Assembly was aware the General

Assumably, State, Turner v. these decisions. acted in accordance Supervisor 1297, (1984); 565, 578, A.2d 1304 Md. 474 299 Har- Southgate v. County Anne Arundel Assessments of 1053, (1977); bor, 586, 591-92, A.2d 1056 369 279 Md. view, 529, (1873). In there v. my Md. 532 Gray, Herbert 1971, Assembly when the General no that question can be that established Defender Statute enacted the Public it lineup, was pre-indictment counsel at a right to statutory rule per se exclusionary would fully cognizant pre- at a evidence was obtained applied when the sanction of counsel. conducted the absence indictment Illinois, Kirby v. In decided Supreme Court (1972). There, in a 32 L.Ed.2d S.Ct. determined that the constitu- plurality opinion, that Court only tional to counsel attaches after indictment se per exclusionary appli- rule was not consequently There- pre-indictment lineups. cable to evidence obtained at 627 after, Special Appeals State, Court of in Jackson v. 17 167, 171-72, 430, Md.App. 434, denied, 300 A.2d cert. (1973), Md. 749 and this in State, Court Foster v. 272 Md. 273, 286, 419, (1973), 323 A.2d denied, cert. 419 U.S. (1974), 95 S.Ct. 42 L.Ed.2d 311 reached same conclusion. Assumably, the General Assembly was aware Nevertheless, of these decisions. it did not eliminate the preexisting statutory right to counsel or alter the preexist ing sanction of the per exclusionary se rule. legislative

The history of the Public Defender Statute establishes that General Assembly intended that a per se rule exclusionary applied pre-indictment whenever a lineup was illegal because of an absence of counsel. Under circumstances, these the majority’s formulation of a sanc- tion based upon fault when a pre-indictment is illegal because of an absence of counsel is contrary legislative intent and is therefore unjustified.

Moreover, the majority’s utilization process of a due totality of circumstances analysis, when a pre-indictment lineup is illegal because of an absence of counsel public defender, is, attributable to the view, my antitheti- cal to the purpose of the right to statutory counsel and is therefore In unjustified. Wade, Court, the Supreme determining that an accused had a constitutional right to counsel at a post-indictment lineup, said at 388 U.S.

S.Ct. 1933: compelled confrontation by the State

“[T]he between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumer- dangers able and variable might factors which seriously, even crucially, derogate from a fair trial.” Supreme The recognized Court the inherently untrust- worthy characteristics of identification evidence resulting from “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Supreme Court further recog- nized “[suggestion can be created intentionally or unintentionally many ways.” 228-29, subtle 388 U.S. Court, Indeed, at 388 U.S. Supreme the S.Ct. 1933. 1936, said: S.Ct. risks are the result that these do not assume

“We an prejudice intentionally designed procedures police from the dan- they assume derive Rather we accused. sugges- and the identification eyewitness inherent gers tibility pretrial identifica- context of the inherent the tion.” post-indictment then noted that a

The Court Supreme unfair- hazards of serious with process “a attended involves “to generally unable criminal accused” who ness to the influences____” 234, 87 388 U.S. suggestive ferret out Court, conclusion, at 388 U.S. Supreme the In S.Ct. 1936. 235-37, 87 said: S.Ct. context, and many so variables the where present

“[I]n preven- the defense must be exist, the first line of pitfalls of the hazards lessening and the tion of unfairness The trial the itself. identification at eyewitness not may fate well be the accused’s might determine which the confronta- pretrial that at in the courtroom but that accused, the the tion, aligned against with the State unprotected and the accused jury, the sole witness unintentional, and or overreaching, intentional against there appeal judgment from little or no effective man.’ the witness—‘that’s rendered for grave potential there is appears it “Since not, lineup, in the which pretrial intentional prejudice, trial, and since at of reconstruction capable not be may prejudice can often avert of counsel itself presence trial, there can be meaningful confrontátion assure lineup was post-indictment for little doubt that Wade he ‘as at which stage prosecution a critical * * * as at the trial to such aid much entitled counsel] [of should have been and his counsel Thus Wade itself.’ both presence counsel’s lineup, impending notified of lineup, to conduct ’” requisite have been a should omitted) (ci- (Footnote waiver. ‘intelligent absent added). omitted) (emphasis tations Thus, Supreme Court established an accused can- protected potentially prejudicial impact be from the of a pretrial confrontation is present unless counsel to avert prejudice meaningful insure a confrontation at trial. Supreme Court not suggest did that these functions performed adequately person could be by other than a Nor lawyer. did it that an suggest rights accused’s could protected adequately by presence of a other person lawyer. than a Gilbert,

In Supreme Court appropriate considered the applied sanction to be a lineup when was in conducted the There, absence of counsel. the Supreme Court, at 388 U.S. 273-74, 87 S.Ct. said:

“Only per exclusionary a se rule testimony as to such can be an effective to sanction assure that law enforcement authorities will the respect accused’s right constitutional to the presence of counsel at lineup. his the critical In the of legislative regulations absence adequate to avoid the hazards to a fair trial inhere in lineups which as conducted, of presently the con- desirability deterring the stitutionally objectionable practice prevail must over the undesirability excluding of relevant evidence. That con- clusion is by buttressed the consideration that the wit- testimony lineup ness’ of his identification will enhance the of his impact in-court identification on the jury seriously aggravate derogation of whatever exists the right (Citations omitted). accused’s to trial.” a fair Gilbert, In the Supreme again recognized po- Court the tential in prejudice lineups inherent conducted in the ab- sence of acknowledged right counsel. It that the accused’s aggravated to a fair trial was by lineups further such impact because the of an incourt is identification enhanced by a It lineup attempted identification. to assure that law respect right enforcement authorities would the to counsel at a and to deter the of in lineups conduct the absence of counsel. All of these support considerations the conclusion that in the Supreme Gilbert Court determined in of conducted the potential prejudice lineups counsel so that evidence obtained at great

absence of was not, inherently such was unreliable should un- lineups circumstances, any admitted into for consid- der be evidence goal by trier fact. This to be achieved eration of was by rule. application exclusionary a se per Thus, applied of the se rule purpose per exclusionary provide merely Court Gilbert was by Supreme sanction that deter law enforcement authorities a would procedures impinged upon an accused’s improper from Rather, and more it rights. fundamentally, constitutional integrity fact-finding process protect short, applying a Supreme purpose itself. In Court’s an accused a fair rule was to assure exclusionary se per at that evidence obtained con- by requiring trial not, any under in the absence counsel should ducted circumstances, it too admitted into evidence because was the trier of fact. unreliable be considered inherently view, statutory right to counsel my In purpose hearing purpose pre-indictment analogous post-indictment at a hear- the constitutional counsel Supreme Court Wade ing, explicated by requires pres- the Defender Statute The Public Gilbert. of lineup. purpose at pre-indictment ence of counsel a by an a fair trial to assure accused requirement that is that unreliable because inherently evidence is requiring that in the of counsel at a conducted absence it is obtained into circumstances be admitted evi- any not under should Manifestly, trier of fact. that to considered the dence of admissibility when the evi- cannot be achieved purpose in the absence of at a conducted dence obtained of upon whether the absence dependent counsel is made or enforcement authorities law counsel is attributable inherent potential prejudice Because the defender. public equally in the of counsel is lineups conducted absence is attributable law enforce- whether that absence great defender, a se exclusion- public per or the ment authorities of employed even when the absence rule should be ary is to the public sum, counsel attributable In defender.2 process utilization a due majority’s totality of of the circum- analysis stances transforms otherwise inadmissible evidence into admissible evidence when an of absence counsel is attributable to the a public defender. result is Such anti- of purpose thetical requirement statutory present counsel be a pre-indictment lineup. at Here the record shows that the defendants were identi- pre-indictment at lineups. fied Under the Public Defender Statute, defendants had a to counsel. The record shows that the did right. defendants not waive Never- theless, present counsel was not pre-indict- either A lineups. person ment other lawyer than a was present. Manifestly, person a other than a is not a lawyer lawyer.3 Because a lawyer present, the defendants’ rights view, my Responsibility In Code Professional constitutes the 2. appropriate prevent sanction deterrent absence of counsel See, public 3-101(A) e.g., "attributable to the 6-101(A)(3). DR defender.” and DR 3-101(A) provides: DR lawyer "A non-lawyer practice shall a not aid in the unauthorized law.” 6-101(A)(3) provides: DR “(A) lawyer A shall not: “(3) Neglect legal a matter entrusted to him.” lawyer non-lawyer The differences between and a who undertakes professional judgment requiring legal to handle cogently matters is Responsibility described in the Code of Professional Consid- —Ethical erations. provides: EC 3-1 prohibition against practice by layman “The ground- of law public integrity competence ed the need of the for of those legal who undertake to fiduciary render services. Because personal lawyer-client relationship character of the and the inherently complex legal public system, of our nature can better requisite responsibility competence be assured of the if the practice subject require- of law is confined to those who are regulations imposed upon legal profes- ments and members sion.” provides: EC 3-2 legal “The sensitive variations the that bear considerations on lawyer determinations it often make difficult even a to for exercise protected against potentially preju- not the adequately were a dicial of confrontation. That the absence impact pretrial public counsel defender is imma- of was attributable per se applied. A rule have exclusionary terial. should been professional judgment, appropriate and it is essential that therefore lawyer personal relationship the of the of client and be nature preserved. Competent professional judgment product a is the of legal disciplined, familiarity processes, with law and a trained analytical legal approach problems, to and a firm ethical commit- ment." provides: EC 3-3 non-lawyer legal gov- “A to matters is not who undertakes handle legal integrity competence by erned to the same rules that lawyer. lawyer subject govern only conduct of a A is not to that the regulation high to of ethical con- but also is committed standards legal public by a best served in matters duct. The regulated interest is Discipli- profession to The committed such standards. lawyer nary public they prohibit protect a from Rules the overtures, by acting seeking employment improper from in cases of loyalties, submitting from the of others in the divided and to control Moreover, legal judgment. person his who entrusts exercise of a lawyer by attorney-client privilege protected a the and matters to is duty lawyer the confidences and the of the to hold inviolate his secrets of client.” provides: EC 3-4 legal position layman not a "A who services often is seeks judge proper professional The will receive attention. whether he confidences, legal may well the the of a matter involve entrustment reputation, freedom, property, the of the client. the or even life person Proper public no protection members of the demands that of demanding capacity permitted of a in the confidential and act legal profes- lawyer subject regulations of unless he is sion." provides: EC 3-5 attempt necessary a nor desirable to formulation of “It is neither single, practice law. specific what constitutes definition of Functionally, practice of the rendition of services law relates to lawyer. professional judgment a that call for the for others lawyer professional judgment is his educated essence ability specific general body philosophy to a of law to relate the client; thus, legal public will be problem of interest better involving only lawyers permitted are act in matters served if professional judgment judgment. professional Where this is officers, clerks, involved, police non-lawyers, court abstract- such as ers, occupations many governmental employees, may engage in special knowledge of law in certain areas. But require lawyer public in the interest whenever of a are essential services legal judgment required.” professional exercise The evidence obtained at pre-indictment lineups inadmissible and should have been excluded. I would there- fore reverse the judgments of the trial courts and would remand the cases for new trials. I Accordingly, respectful- ly dissent.

474 A.2d 1332 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.

Philip S. MARANO. (BV) 22, Sept. Term,

Misc. No. 1983. Appeals

Court of Maryland.

25,May

Case Details

Case Name: Webster v. State

Court Name: Court of Appeals of Maryland

Date Published: May 25, 1984

Citation: 474 A.2d 1305

Docket Number: 116, 128, September Term, 1983

Court Abbreviation: Md.