Bartley v. State

Melvin, J., delivered the opinion of the Court. On December 20, 1972, Andrew Der, age 17, was accosted in front of his residence in Silver Spring, Maryland, by a black male wearing a long coat and carrying a rifle. The accoster was joined by four more black males, one of whom had another rifle. The five individuals robbed Der of his watch, his keys and his wallet containing money and various cards.

At gun point Der was then forced to enter the house accompanied by the five individuals. Der’s mother and father, Paul and Marietta Der, also resided in the home and were at home at the time. The three Ders were then bound and gagged while the five intruders ransacked the house for valuables. The five men remained in the house about 20 ²⁸⁵ minutes.

During that time Mrs. Der was subjected to sexual assaults by at least three of the assailants. When the culprits were ready to leave the premises, they took the keys to Paul Der’s Volkswagen automobile and drove away in it, taking with them various other articles of personal property belonging to the Ders. On January 3, 1973, the appellants, Van Burén Bartley and Robert Hill, Jr., were indicted by the Grand Jury of Montgomery County, charging them with various counts of armed robbery, robbery, larceny, assault with intent to rape, unnatural perverted sex acts, assault and battery, assault and larceny of a motor vehicle, all related to the events that took place at the Der household on December 20,1972. On November 25, 1974, the appellants were brought to trial and a jury selected and impaneled (McAuliffe, J. presiding).

During opening statement, the prosecutor informed the jury that one Alfred Truesdale would be the State’s first witness; that Truesdale “is one of the persons who perpetrated this horrible crime”; that Truesdale “was there and he will tell you who was there with him. He will tell you he was there with George Bartley, with Peter Hackett, and that he was there with Robert Hill, Jr., the defendant that’s here in this Court before you today. And that he was there with Van Burén Bartley that night and they all came up and they all took part in this crime”. (Emphasis added.) After defense counsel 1 had completed their opening statements and after Truesdale was called as a witness but before he took the stand to testify, both defense counsel were permitted to “voir dire him out of the presence of the jury on the in-Court identification . .he was expected to make.

Following the voir dire the court recessed for the day. The next day the prosecutor informed the court that Truesdale “did not wish to testify in this case”. “On that basis, I request the Court to grant a mistrial in light of the fact that I believe Alfred ²⁸⁶ Truesdale wpuld testify in behalf of the State. I had SDoken with him and he assured me he would testify truthfully at the trial,'and I mentioned it in opening statement.” Judge McAuliffe was reluctant to declare a mistrial. The record reflects his concern: “THE COURT: ...

Ordinarily, Mr. Truesdale would be a compellable State’s witness and a competent State’s witness as would the other two personsi 2 ! previously convicted in this case because there could be no claim as to self-incrimination by them, their cases having been finally decided and the appeal time having run. “However, it is also my recollection that at the time the sentence was taken, or at the time the plea was taken and sentence imposed in the case of the other three, it was part of their negotiated plea bargain with the State that they would not be called against their will, if I am not mistaken about that. Otherwise, I would think you could call Mr. Truesdale from the stand and make him testify. “My understanding is that he is now at least a reluctant witness and won’t testify, and the State doesn’t propose to call him. “MRS. RAKER: That is correct, your Honor. “THE COURT: I indicated to you in chambers I would be reluctant to grant the State’s motion for a mistrial unless the defendants concurred therein, or individually made a motion for mistrial. “What is your pleasure? You know the State’s Attorney has mentioned the testimony of Mr. Truesdale in opening. “MR.

BERNSTEIN: On behalf of the defendant Van Burén Bartley, I would move for a mistrial, or join in the motion of the State for mistrial. I feel that comments made in the opening statement as to ²⁸⁷ what Mr. Truesdale would testify to were very strong and it would seem to me that in the interest of justice, the Court must grant the mistrial. “It is what is in the mind of the jurors and the jurors today are not that unsophisticated. They will probably get the impression, for some reason, Mr. Truesdale did not want to testify to help the two defendants. “Accordingly, I would have Mr. Bartley ask for a mistrial. “THE COURT: You discussed this mth Mr. Bartley this morning? “MR. BERSTEIN: Yes, I have. “THE COURT: Mr. Townsend? “MR.

TOWNSEND: On behalf of the defendant, Robert Hill, Jr., whom I have also discussed this with at some substantial length, I move for a mistrial for the same reasons cited and that the Court is familiar with. Mr. Hill concurs in our judgment to make that motion. “THE COURT: Gentlemen, it is unfortunate but I agree once having . . . [placed] it in the jurors mind what the testimony of an accomplice would have been, that to not call that accomplice is to leave lingering in the jurors mind something which might well turn the scales against your clients. It is inadvertent and not deliberate on the part of the State, but the Court will grant each defendant’s motion for mistrial and direct the jurors be withdrawn.” (Emphasis added.) The judge then declared a mistrial, the docket entries reflecting as follows: “State’s motion for mistrial — no ruling Defendant Van Burén Bartley’s motion for mistrial — granted Defendant Robert Hill, Jr.’s motion for mistrial granted, Jury withdrawn.” ²⁸⁸ On February 10, 1975, appellants were again brought to trial on the same indictment (McAuliffe, J. again presiding). Each appellant moved for dismissal on the ground of double jeopardy.

Judge McAuliffe reserved his ruling on the motions and the case proceeded to trial by jury. At the close of the State’s case, neither appellant presented any evidence; each elected not to testify in his own defense. On February 14, 1975, after four days of trial, the jury found each appellant guilty of three counts of armed robbery, assault with intent to rape, an unnatural and perverted sex act, assault and battery, assault, and larceny of a motor vehicle. On March 17,1975, each appellant’s motion for a new trial was denied.

At the same time, the court denied each motion for dismissal on the ground of double jeopardy upon which it had reserved its rulings at the commencement of the trial. On April 16,1975, each appellant received sentences totaling 20 years. In their timely appeals to the Court, neither appellant contests the evidence as it relates to the corpus delicti of the crimes of which they were convicted. Each, however, vigorously contend that the trial court committed reversible error in its rulings on the admissibility of all evidence identifying each of them as being present at the Der home on December 20, 1974.

Both also contend the trial judge erred in not granting their motions for dismissal or, in the alternative, a mistrial, because of an alleged violation of the witness sequestration rule (Md. Rule 753). In addition, appellant Bartley (but not Hill) contends on appeal that “the trial judge erred in refusing to dismiss the indictment after the defendant was placed twice in jeopardy”. We shall discuss this latter contention first. I Appellant Bartley’s Double Jeopardy Claim In Jourdan v. State, 275 Md. 495 (1975), the Court of Appeals said, at 508: “ ... [Wjhere jeopardy has attached to a criminal ²⁸⁹ defendant and a mistrial is thereafter declared, the determination of whether the Fifth Amendment’s prohibition against double jeopardy bars a retrial depends upon the reasons for and circumstances surrounding the mistrial declaration. “One circumstance where a retrial is normally permitted after a mistrial, without further examination into the reasons for the mistrial, is where the defendant sought or consented to the mistrial.

United States v. Jorn, supra, 400 U. S. at 484-485; Cornish v. State, supra, 272 Md. at 318-319; United States v. Beasley, 479 F. 2d 1124 (5th Cir.), cert. denied, 414 U. S. 924 , 94 S. Ct. 252 , 38 L.Ed.2d 158 , reh. denied, 414 U. S. 1052 , 94 S. Ct. 557 , 38 L.Ed.2d 340 (1973); United States v. Goldstein, 479 F. 2d 1061, 1066 (2d Cir.), cert. denied, 414 U. S. 873 , 94 S. Ct. 151 , 38 L.Ed.2d 113 (1973). . . .” In the present case, it is clear that appellant Bartley, through his counsel, “sought or consented to the mistrial”. The circumstances surrounding the declaration of the mistrial failed to show any prosecutional or judicial overreaching such as to harass the appellant or to enhance the chances of conviction in a second trial. See Baker, Whitfield & Wilson v. State, 15 Md. App. 73, 94 (1972). Appellant’s claim that the jury was discharged without his personal consent is without merit.

Unlike the situation in Jourdaa, supra, where the defendant himself opposed the mistrial although his counsel consented, there is no indication here that appellant opposed the mistrial. The record shows that he discussed the matter with his counsel and the entire colloquy between court and counsel quoted supra took place in his presence. Under the circumstances, we hold that appellant Bartley is “deemed to have consented or to be bound by his attorney’s action” (Jourdan v. State, supra, at 509) and that when he was brought to trial the second time there was no violation of the double jeopardy clause of the Fifth Amendment of the United States Constitution. ²⁹⁰ II Admissibility of Identification Testimony After opening statements by the prosecutor and defense counsel a suppression hearing was held out of the presence of the jury “on the question of possible suppression and exclusion of any extra-judicial identification, and the question of propriety of allowing an in-court identification, if one can be made”. At the conclusion of the hearing the trial judge denied each appellant’s motion to exclude evidence of the extra-judicial photographic identifications as well as the in-court identifications expected to be made before the jury by the three victims.

Each of the victims and Lieutenant Skaife of the Montgomery County Police Department gave substantially the same testimony before the jury that they gave at the suppression .hearing concerning the pre-trial viewing of photographs. In addition, Andrew Der and Marietta Der made positive in-court identifications of both appellants. Paul Der made a positive in-court identification of Hill, but was unable to identify Bartley. On appeal, the contentions of each appellant attacking the trial judge’s rulings are somewhat different.

We consider first the arguments of Hill insofar as they differ from those of Bartley. (1) No photograph of Hill was shown to any of the victims until November 21, 1974, four days before trial no. 1. On that date, Lt. Skaife went to Florida where Andrew Der was attending college and showed him an array of six black and white photographs, one of Hill and one of each of five other black males.

Lt. Skaife testified at the suppression hearing that from this array Andrew identified Hill and one Brazwell as being two of the five intruders at the Der home on December 20, 1972. Lt. Skaife characterized the ²⁹¹ identifications as “tentative”. 3 Andrew, however, characterized his photographic identification of Hill as “positive”.

On November 24, 1974, the day before trial no. 1, the Hill array was shown to Paul Der at his home. He made a “tentative” identification of Hill. In a separate viewing of the same array on that date, Marietta Der made a “positive” identification of Hill. On the same date, Andrew Der was shown the Hill array for the second time and again isolated the photographs of Hill and Brazwell, but said, as between the two, that Hill was “the closest one”.

Hill does not argue that the makeup of the array containing his photograph was suggestive, and we find no evidence that Lt. Skaife made any improper suggestions that would prompt the witnesses in their identifications. Hill’s major argument is that once a suspect is in custody and especially when he has been indicted, photographs should not be used when more reliable identification procedures are feasible. If such photographic procedures are employed during the post-arrest stages, he contends that the burden is placed upon the State to show compelling circumstances to justify the use of such procedures in lieu of a corporeal line-up.

If the State fails to meet this burden, then, he argues, his due process rights have been per se violated by the use of the less reliable procedure and a reversal is mandated. At the same time, however, Hill recognizes that in Neil v. Biggers, 409 U. S. 188 , 93 S. Ct. 375 (1975), the Supreme Court declined to impose a strict rule ²⁹² barring evidence of suggestive confrontations because a more reliable procedure may be available. He nevertheless argues that Neil v. Biggers applies only to those cases tried before Stovall v. Denno, 388 U. S. 293 , 87 S. Ct. 1967 (1967), where the Supreme Court first gave notice that there was more involved in the suggestiveness of confrontation procedures than a jury question. This latter argument,however, is without merit, for in Dobson v. State, 24 Md. App. 644 (1975), this Court, speaking through Judge Gilbert (now Chief Judge), made it clear that, despite the holding to the contrary in Smith v. Coiner, 473 F. 2d 877 (4th Cir. 1973), Biggers applies to post -Stovall cases as well as to pre-Stovall cases “insofar as this State is concerned”.

Id. 654. In Biggers, supra, at 196-197 , the Court in rejecting