Bowen v. State

Orth, J., delivered the opinion of the Court. Two questions are presented on this appeal from the appellant’s convictions at a court trial in the Criminal Court of Baltimore of grand larceny and resisting arrest and concurrent sentences of 3 years and 6 months respectively. The first question relates to the admissibility of in-court identifications and the second is with regard to the alleged consideration by the trial court of the appellant’s failure to testify in its determination of ⁷¹⁵ his guilt. We find no prejudicial error in the matters raised by the questions.

I At the trial two eyewitnesses to the larceny identified the appellant as the thief. The appellant objected to the admission of the identifications on the ground that there had been a pretrial confrontation of the appellant by the witnesses which was illegal because it had been conducted without the presence of counsel to represent him and after the decision in Stovall v. Denno, 388 U. S. 293 . He asserted at trial and contends on appeal that the exclusionary rules enunciated in United States v. Wade, 388 U. S. 218 , and in Gilbert v. State of California, 388 U. S. 263 , precluded the admission of the in-court identifications as the State did not establish that they had a source independent of such illegal confrontation. But the confrontation of which the appellant complains was at a preliminary hearing and our holdings in Tyler v. State, 5 Md. App. 265 , are dispositive of the point.

We held, at 270 that “nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made.” We said, at 272: “We think it evident that Wade does not hold that all pretrial confrontations between the accused and the victim or other identifying witnesses are thereby deemed to be critical stages of the criminal prosecution. In our opinion, Wade indicates that only those pretrial confrontations that are not subject to fair and meaningful objective review later at the trial fall within its strictures, so that where the circumstances of the confrontation can be fully developed at the trial by cross-examination of the State’s witnesses, or by presentation of witnesses on behalf of the defendant, the right to counsel does not attach. Specifically, we hold that the rationale of Wade and Gilbert is not applicable to confrontations at a public pretrial judicial hearing presided over, * * *, by a judicial officer * * See Palmer v. State, 5 Md. App. 691 . On appeal the appellant appears to limit his contention to ⁷¹⁶ the argument that the in-court identification should have been excluded under the rules of Wade and Gilbert . 1 Independent -of any right to counsel claim, a confrontation may be “so unnecessarily suggestive and conducive to irreparable- mistaken identification” as to be a denial of due process of law.

Stovall v. Denno, supra, at 296. Although the appellant in his brief suggests that the circumstances preceding the in-court identifications tainted the in-court identifications he does not specifically contend that he was denied due process of law thereby, applying the circumstances alleged only in support of his claim that the State did not establish the independent source of the in-court identifications as required by Wade . In any event we do not think that the circumstances as disclosed by the record here were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. The lower court did not so find, and we cannot say, on the evidence before it, that its judgment was clearly erroneous.

Md, Rule, 1086; Gunn v. State, 4 Md. App. 379 . We note that the lack of positiveness or failure of witnesses to identify an accused from photographs or upon a legal confrontation prior to an in-court identification go to the weight of the in-court identification and not to its admissibility. Barnes v. State, 5 Md. App. 144 ; Tucker v. State, 5 Md. App. 32 ; Baldwin v. State, 5 Md. App. 22 ; Brown v. State, 4 Md. App. 612 ; Carroll v. State, 3 Md. App. 50 ; Crosby v. State, 2 Md. App. 578 ; Logan v. State, 1 Md. App. 213 . Rath v. State, 3 Md. App. 721 is factually distinguishable from the instant case.

The appellant also complains that he did not have the benefit of a pretrial lineup. We know of no constitutional provision bestowing upon an accused the right to appear in a lineup. See Fogg v. Commonwealth, 159 S. E. 2d 616 (Va.) holding that ⁷¹⁷ there was no principle of law