Bailey v. State

Orth, J., delivered the opinion of the Court. On Sunday, 25 February 1968, about 2:00 P.M. two men held up the office of the Western Union Telegraph Company on Colesville Road at Georgia Avenue in Montgomery County, Maryland, in the presence of three employees of the company— Andrew S. Donnan, the manager, Thomas Wischnowski, a clerk, and Elizabeth S. Brown, a telephone operator. A “colored man”, identified as the appellant, entered the office, followed a few ⁴⁹⁹ seconds later by another “colored man”, designated hereinafter as the “second man.” The appellant went to the counter and wrote on a telegraph form. Wischnowski, who was at the “printer”, wiring, testified that he went to the counter and the appellant handed him the form.

On it was written the name “Mr. Elgin”, a word following which was illegible because it was scratched over, and below the name “This is a hold up”. When he handed the clerk the form he kept one hand in his right-hand pocket. The appellant told the clerk to turn around and lie on the floor and he did so. Someone took his wallet containing two dollars out of his pocket.

The clerk was then told by the appellant to get up and unlock the safe at the upper portion of the counter and he did so. He was also directed to open the safe “at the lower portion” but explained that only “Brinks could open that safe.” He was then ordered back on the floor and later was told to get up and go to the ladies room and he did as ordered. He was in the ladies room “a matter of thirty seconds to a minute.” He then came out and telephoned the main office. The telephone operator also saw the men come in the office and saw the appellant go to the counter.

The second man went behind the counter, “pointed a gun”, and said, “This is a holdup. Lay on the floor.” “I laid down * * * on my face.” She was then told to get up and go to the ladies’ room and the door was closed by one of the robbers. “They said before they closed, when they were leaving, just, ‘If you stick your heads out of here we are going to blow them off.’ ” She did as she was ordered because “he told us to. He had a gun pointing at me.” While she was on the floor one of the robbers pushed her head down with his hand “to make sure my head was down.” The manager was working at his desk doing book work. When he looked up both robbers were in the office, the appellant at the counter.

He had resumed his work when he was “grabbed by the left arm and jerked around.” There was a man with a gun pointed at him who said, “This is a holdup. Get down on the floor.” While he was on the floor the appellant “came over to me and pushed my head down on the ground and said, ‘Keep your head down.’ ” The appellant had a gun in his hand. At one time while he was on the floor the appellant “was trying to pull out my wallet * * * He took the wallet. It contained $20.” A ⁵⁰⁰ short time later he was grabbed by the arm and told to follow the other two employees into the ladies’ room.

The second man said, “Do not open the door or we will blow your heads off.” Both robbers had guns. They stole $218.25 of the company’s money. At the time the crime was committed the only persons in the office were the three employees and the two robbers. Each of the witnesses made an in-court identification of the appellant.

The identification of each of the clerk and the telephone operator were positive. When the manager was first asked if he saw anyone in the courtroom that was at the counter when he first looked up, he said, “Well, I believe it is the gentleman there at the back desk,” indicating the appellant. But there was no equivocation when he was asked who came over to him while he was on the floor and said, “Keep your head down.” He said, “the defendant, right there (indicating).” Each witness described the appellant as wearing a beret. Each said he was “heavy set” or “heavy-built” or “stocky.” The clerk said the beret was “real loud green”, and was able to add only that he was dark complected.

He was not able to say whether or not he had a beard or had long or short hair—“he had a hat on, sir”. The telephone operator said “it looked like he had a sweater on * * * or something like that.” She said his sweater was “bright-colored * * * green.” His face was “rough looking * * * just like somebody needed a shave.” The manager said the beret was “bright green.” He had on a plaid coat, a “loud shirt” and “checked trousers.” In profile his face was rough. “It looked rough.” 1 The appellant was convicted by a jury in the Circuit Court for Montgomery County of the robbery of the manager and violently stealing $218.25 of the money of the Western Union Telegraph Company (3rd count of indictment no. 9323) ; the robbery of the clerk and violently stealing $2.00 of the clerk’s ⁵⁰¹ money (3rd count of indictment no. 9324) ; and the assault of the telephone operator (2nd count of indictment no. 9325). He was sentenced to 8 years on the first conviction, 4 years on the second conviction to run concurrently, and sentence was suspended generally on the third conviction. THE JUDICIAL IDENTIFICATIONS OF THE APPELLANT On appeal the appellant challenges the in-court identifications of him by the clerk, the telephone operator and the manager on three grounds: (1) they were tainted by extra-judicial photographic identifications; (2) the conflicting descriptions of the appellant in the testimony of the witnesses; and (3) the courtroom procedure at which the identifications were made.

In Smith v. State, 6 Md. App. 59 , we discussed the procedure upon challenge of evidence of identification. We observed that such challenge may be made by a motion to exclude or suppress such evidence made before or during trial or by an objection to the evidence when it is offered (or as soon thereafter as the objection to its admissibility shall have become apparent), citing Md. Rules 725 and 522. Rule 725b includes a provision that failure to present any such defense or objection as therein provided shall constitute a waiver thereof and Rule 522d2, applicable to criminal causes by Rule 725f, provides that if objection is not made as therein provided, the objection shall be treated as waived. From the record before us no motion to exclude or suppress was made nor was objection made to the admission of in-court identifications. 2 Generally, State procedural requirements to raise or preserve a question may still be respected even in the case of an alleged violation of the Fourteenth Amendment.

See Gaudio and Bucci v. State, 1 Md. App. 455, 461 ; Mapp v. Ohio, 367 U. S. 643 . Thus the precise question of the admissibility of the in-court identifications here is not properly before us and we would not ordinarily decide it. Md. Rule 1085. However, as the question is presented to us in an unusual posture, we shall consider it wfithin the qualifications expressed in Rule 1085. ⁵⁰² The Extra-Judicial Identifications by Photograph During cross-examination of the clerk, he having identified the appellant in court on direct examination as one of the robbers, he was asked if he had ever seen a photograph of the appellant.

Objection was made by the State on the ground that it was not brought out on direct examination. The transcript shows the following colloquy at the bench: “MR. DIGMAN: (Assistant State’s Attorney) May it please the Court, Your Honor, the State objects to this examination in regards to the witness seeing photographs of the Defendant. This was not on direct examination and I am quite well aware of the wide latitude on cross-examination.

And I proffer to the Court this was not on direct examination and he should not at this time be allowed to collaterally inquire. THE COURT: What is the purpose of this question ? MR. GALLAGHER: (defense counsel) If the court please, I think we are entitled to know whether or not he has been shown prior to this time photographs of this particular Defendant and allowed to have the jury decide whether or not this sighting or observation of a photograph could or would influence this identification of this particular person.

THE COURT: Do you intend to introduce any evidence concerning identification by a photograph? MR. DIGMAN: No, sir. MR.

SMITH (defense counsel) If the Court please, identification is a very important part of the defendant’s case. I think we are entitled to know how this man is able to identify him if he saw a photograph prior to this; that would certainly— THE COURT: You can certainly use him as your own witness. But since there is nothing in evidence on direct examination determining identification by a photograph, this would not be proper at this time. But, however, I will be glad to have ⁵⁰³ him remain so that you may use him as your witness if you like.

MR. DIGMAN: The State would further proffer that the use of the photographs are not in evidence as the Court has so held. But further, that the identification is based upon an eyewitness identification only and that is sufficient at the present time to proceed further. THE COURT: That is why I sustained the objection.” During the cross-examination of the telephone operator, she having identified the appellant in court on direct examination as one of the robbers, she was asked, “Now, were you shown a photograph of Bailey (the appellant).” The State objected and the objection was sustained by the court without comment.

Only two witnesses were called by the defense on behalf of the appellant. The clerk testified that a detective, on a date he did not remember, but within the last month, had shown him photographs of the appellant. On cross-examination the State brought out that he had been shown the photographs on more than one occasion. Asked how many photographs he was shown he said that there were several, two or three, “I don’t remember offhand.” They were of “the same type of people, colored race” and there was no “intimation in any way to indicate which one of the photographs (he) should pick out.” The transcript then shows the following questions by the State and answers by the witness: “Q. Did, in fact, I not have you in my office this morning and show you almost six or eight photographs and ask you to pick the one out, if you could pick the Defendant out ?

A. Yes, sir. Q. And in addition to that, did you not also have an interview with the detective in regards to determining whether you could, whether you did identify the Defendant’s picture ? A. Yes, sir.” The defense then called the telephone operator. She said un ⁵⁰⁴ til the day of trial she had not seen the appellant since the robbery.

She was then asked if she had seen photographs of him and answered, “I was shown photographs of six or seven different people and picked his out of the bunch.” On cross-examination the State brought out that she had been shown photographs on more than one occasion, that one of the times was the morning of the trial in the office of the Assistant State’s Attorney, that she believed there were nine photographs “of like people” then shown her, that the Assistant State’s Attorney did not in any way indicate to her which one to pick out and that the “front of the photographs” that she inspected were “not marked in any particular way.” The defense rested. Motions for judgment of acquittal as to counts on which acquittal had not been directed by the court on motion at the close of the evidence offered by the State were made and denied. There was no motion to exclude the testimony as to the in-court identifications and the only instructions requested by defense counsel were .for “the usual instructions * * * for instance, he did not take the witness stand, no inference is to be drawn from the fact that he did not testify * * * And, of course, the usual instructions about burden of proof.” The court included in its charge the burden of the State to prove the guilt of the appellant beyond a reasonable doubt and that he came into court clothed with innocence. There were no instructions directly on the matter of the appellant’s identification by the State’s witnesses.

The record shows ho objection to the charge. Arguments of counsel were not transcribed. In Smith v. State, supra, we fully discussed the rules as to the admissibility of' challenged evidence of both judicial and extra-judicial identification by personal confrontation and by the viewing of photographs as they existed in this State prior to the Wade—Gilbert—Stovall 3 trilogy of opinions and the opinion in Simmons v. United States, 390 U. S. 377 and as they were affected by those opinions. As to initial identification by photograph we quoted the Supreme Court in Simmons : “We are unwilling to prohibit its employment, either ⁵⁰⁵ in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 38 U. S. 293, 301-302 , 87 S. Ct. 1967, 1972-1973 , and with decisions of other courts on the question of identification by photograph.” 390 U. S. at 384 . We held: “[W]hen it is shown that a pre-trial identification by photograph, on the totality of the circumstances surrounding it, was so unnecessarily suggestive as to give rise to a very substantial likelihood of