Barnes v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty generally under a two count indictment charging robbery with a deadly weapon and robbery, by a jury in the Circuit Court for St. Mary’s County and sentenced generally to imprisonment for a term of 18 years. On appeal from the judgment he presents three questions: I “Was the appellant deprived of his constitutional rights ?” II “Was the evidence of identification proper and sufficient in view of the testimony ?” Ill “Was the evidence sufficient to sustain the conviction?” 1 I The appellant claims that he was deprived of his constitu ¹⁴⁷ tional rights but his argument is completely lacking in specificity. He briefly summarizes the procedural requirements of Miranda v. Arizona, 384 U. S. 436 and cites Escobedo v. Illinois, 378 U. S. 478 and Gideon v. Wainwright, 372 U. S. 335 but does not state how they are here applicable.

No statement obtained from the appellant during a custodial interrogation was offered in evidence so Miranda affords him no benefit. Crosby v. State, 2 Md. App. 578 . The record does not disclose that he at any time requested counsel and such request was denied so he is not within the ambit of Bscobedo. Reeves v. State, 3 Md. App. 195 ; Crumb v. State, 1 Md. App. 98 .

Nor does it show that he was not afforded effective representation of counsel at every critical stage of the proceedings against him as required by Gideon and its offspring. Such contentions as he raises in regard to the first question are without merit. II The State produced two witnesses who made a courtroom identification of the appellant as one of the robbers. Ezmer E. Taylor, an eyewitness to the crime, made a positive identification.

The transcript of the trial is not clear as to the courtroom identification by the victim of the robbery, Dorothy M. Stehley. During the direct examination of her, after she had recounted the circumstances of the robbery, stating that there were two robbers, one of whom had a rifle, the transcript reads as follows : “Q. Mrs. Stehley, would you look around here and take your time and tell us whether or not you can identify the one with the rifle. A. (The witness pointed).

THE COURT: No, you don’t have to walk around. Just count down or describe pieces of clothing which one you’re pointing to. THE WITNESS : This one, the next to the end. THE COURT: Which one?

THE WITNESS : The next to the end. THE COURT: All right. THE WITNESS: I haven’t seen him for over a year.” ¹⁴⁸ The State continued its examination, eliciting testimony as to the size of the man with the rifle (about 5 feet 10 inches, 150-160 pounds), how he was dressed at the time of the crime (a dark overcoat, a Derby hat with a small brim, black, a white shirt and tie), how long he had been in her view (about 10 minutes), whether he had anything on his face (he did not but another robber did), and whether she was shown “any pictures of a number of people” (she had been shown pictures shortly after the crime by the police). At this point defense counsel objected, saying, “It’s perfectly clear the witness has not identified the defendant in this case, Your Honor.

And Mr. Weiner now is trying to show a group of pictures that the defendant appears in.” Mrs. Stehley thereupon said, “Well, I said the one in the end.” The State, over objection, showed her eight pictures from which she picked out the picture of the appellant as the robber with the rifle and the pictures were admitted in evidence with no objection. On cross-examination she was asked: “Q. You did, when asked by the State’s Attorney, to point and by the judge, to point to one. You did point to this gentleman here. A. Yeah, but I pointed to that one first.

Q. But you pointed to this one in answer to the judge’s question, did you not? A. That’s right. I haven’t seen him for a year. Q. But you were shown a picture of him by the State.

You were shown this group of pictures by the State about a week, about two weeks ago, weren’t you? A. Yes.” On redirect examination the transcript shows: “Q. Mrs. Stehley, when you first pointed to Barnes (the appellant) did he have his hand up or up— (the question was objected to as leading and the objection was overruled). THE WITNESS: You mean when he came in? MR.

WEINER: Today, yes, now. When you first identified Barnes, was his hand down or up from his face ? ¹⁴⁹ THE WITNESS : I think it was up a little. BY MR. WEINER: Q. When you first— A. Yes, I first identified him as the one.

That is right. Q. When you first identified him, was his hand down? A. I think it was up, but I’m not positive.” The witness was then questioned on re-cross-examination by-defense counsel: “Q. And the judge did ask you to point out to the jury the person that came into the Atwood Bus Station. And in answer to the judge’s question, you did point to this gentleman here.

A. That is second choice. I pointed to this one first. Q. Did the judge not ask you to point or to describe the clothing by which this person was dressed? A. Yes.

Q. You understood his question? You understood the judge’s question? A. Yes, when — - Q. In answer to the judge’s question you pointed to this gentleman. A. Yeah, but this one first.

Q. You’re missing my — my question is, in answer to Judge Bowen’s question you pointed to this gentleman. A. The second time, yes. It’s been a year since I’ve seen him. Q. I understand.

MR. WEINER: You first pointed to Barnes, is that correct ? THE WITNESS : I first pointed to Barnes.” 2 ¹⁵⁰ In any event, we think from the transcript that defense counsel, the State and the court accepted that Mrs. Stehley had identified the appellant in the courtroom at some stage during her testimony. At the trial, defense counsel, in arguing the matter to the court, acknowledged that she had identified the appellant in the courtroom and in his brief, the appellant so acknowledges — “[t]he testimony further shows that Mrs. Stehley identified one other than the defendant in court as the defendant (sic), though she later changed.” He then refers to the “other witness (Taylor) to identify the defendant at the trial * * As we construe the arguments made by the appellant in his brief with regard to his question II, he raises three contentions.

First, he baldly states: “As a corollary to question No. 1, the evidence of the identification should have been excluded under the applicable cases cited thereunder.” We find none of them applicable. The constitutional principles enunciated in Miranda relate only to custodial interrogations. The placing of an accused in a line-up and the viewing of pictures by witnesses are not testimonial or communication acts of the accused and are not within the ambit of Miranda . The applicability of the right to counsel under Gideon and Escobedo , the other two cases cited by him under his question I, leads into his second contention, that the identification evidence was inadmissible because he was not represented by counsel at the line-up or when the witnesses had been shown pictures.

He relies on United States v. Wade, 388 U. S. 218 . But neither Wade nor Gilbert v. California, 388 U. S. 263 are applicable to the instant case, for we apply their principles only to line-ups conducted after 12 June 1967. Stovall v. Denno, 388 U. S. 293 ; Thompson v. State, 4 Md. App. 31 ; Tender v. State, 2 Md. App. 692. The line-up here was conducted prior to that date.

The absence of counsel at the lineup did not preclude the challenged testimony. There was no claim that the line-up was otherwise improper. And there is no constitutional requirement that counsel be present when pictures are viewed by witnesses. See Simmons v. United States, 390 U. ¹⁵¹ S. 377, decided 18 March 1968.

The third contention is that the courtroom identification of Taylor and Mrs. Stehley was inadmissible because it was “tainted.” As far as we can gather from the argument in the brief, the claim that such evidence was “tainted” was based on the fact that pictures in which that of the appellant was included, had been shown to the witnesses and that although Mrs. Stehley identified the appellant at the line-up, Taylor did not make an identification thereat. The appellant alleges that “about a week before the trial, all the witnesses had a conference with counsel for the State and were shown photographs (six) which included the defendant. All this in the presence of each other and for a period of about an hour.” This allegation does not appear to be supported by the record. A police officer testified that Mrs. Stehley was shown six photographs two weeks before trial and identified that of the appellant.

Taylor testified that he was shown nine or ten photographs about a week before the trial and picked out that of the appellant. Another witness was shown six photographs a week before the trial but was unable to make an identification. There is no evidence that another witness was ever shown the photographs.® Photographs shown the witnesses were admitted in