Brown v. State

Orth, J., delivered the opinion of the Court. On 18 April 1966 David Phillip Brown (appellant) and Jerry Wayne Montgomery were jointly indicted, the grand jury of Baltimore County presenting that on 4 May 1965 they “* * * feloniously, wilfully and of their deliberately premeditated malice aforethought, did kill and murder Richard Leroy Greene * * *.” On June 2, 1967 the Circuit Court for Baltimore County denied appellant’s ⁴⁶⁵ motion to dismiss indictments against him 1 and an appeal therefrom was noted. We affirmed the order denying the motion, holding that the delay from indictment to trial was less than substantial and that appellant had not shown a strong possibility of prejudice. Brown v. State, 4 Md. App. 141 , decided 26 April 1968.

Mandate issued and was received by the lower court 10 June 1968. On 7 August 1968 he filed another motion to dismiss the indictments for lack of a speedy trial. At the hearing thereon he produced no evidence, testimonial or otherwise, which showed he had suffered actual or possible prejudice from any further delay in trial. The motion was denied by order of 23 September 1968 of the Circuit Court for Baltimore County.

An appeal was again noted and argued before this Court. By opinion decided 12 June, Brown v. State, No. 142, September Term, 1968, unreported, we affirmed the order of the lower court, finding that the right to a speedy trial had not been denied and that the provisions of the Intrastate Detainer Act, Code, Art. 27, § 616S, in the circumstances, did not entitle him to a dismissal of the indictments. Mandate issued and was received by the lower court on 15 July 1969. On 22 August appellant filed a petition for employment of a private investigator, stating that trial had been set for 10 September.

By order the same date the lower court authorized the employment of a private investigator as requested. On 11 September the indictment came on for trial in the Circuit Court for Baltimore County. Appellant was tried before a jury, found guilty of murder in the first degree and sentenced to life imprisonment. He appeals from the judgment.

I Appellant again asserts that he was denied a speedy trial. Our opinions on appeal from the two previous denials of motions to dismiss the indictments have adjudicated that appellant was not denied a speedy trial as of ⁴⁶⁶ 23 September 1968. Thereafter any delay in trial until 15 July 1969 was due to the appeal initiated by appellant and was not chargeable in any way to the prosecution. Delay from 15 July 1969 to the date trial was actually had was not a delay of constitutional dimension.

Further appellant did not demand trial on a date earlier than that set on our remand and it is apparent from his petition to employ a private investigator that he would not have been prepared for trial before the date set in any event. We hold that appellant’s right to a speedy trial was not denied by the trial had on 11 September 1969. II Richard Leroy Greene, age 17 years, worked at the Scot Gas Station on North Point Blvd. near Wise Avenue in Baltimore County. He was the only employee there on 4 May 1965.

About 4:45 P.M. when the manager of the station returned from a meeting in Washington, the station was open — the oil racks and credit machine were outside and the gas pumps were turned on — but the door to the station office was locked. Unlocking the door he found Greene on the floor between a safe and a desk. There was a bullet hole in the back of Greene’s head and he was dead. About $37 had been stolen from the safe.

The Medical Examiner classified the death as homicide; the manner of death was a gunshot wound in the head. Alvin A. Winship, called by the State, testified that he was in the Scot Station shortly after noon on 4 May 1965. His car was serviced and he bought some crackers and cigarettes inside the station. While inside the station a man came from the “lubritoreum” and “looked over the window with his leg up on the window sill and I passed him on the way out.” He was white, “young, curly hair or that type of profile, and thin face as opposed to a heavyset individual.” That person was in the station when Winship left.

The transcript reads: “ (by Assistant State’s Attorney): Q. Mr. Winship, I have visited you at your home ⁴⁶⁷ the other evening, Monday evening of this week? A. Yes. Q. I showed you some pictures, did I not? A. Yes.

Q. Prior to showing you those pictures, did I in any way point out any picture to you ? A. No. Q. Did I in any way do anything to influence you in looking at those pictures ? A. You asked me to look at the pictures. Q. And did you look at the pictures ?

A. I did. Q. What if anything did you do as a result of looking at the pictures ? A. Then you asked me if there was anyone in particular that I could recognize and I couldn’t identify anyone from the pictures. However, if I had to choose a face from the choice, I’d choose a face.

Q. You didn’t say that was the face ? A. I can’t. No. MR. SUTLEY: (defense counsel) Objection to any more testimony on this point.

THE COURT: I don’t know what the testimony will be. I would be prematurely ruling on the objection, Mr. Sutley. Overruled. Q. Mr. Winship, I show you a group of pictures and ask if these are the same pictures that I showed Monday evening ?

A. Uh-huh. In my opinion it is this picture.” The State introduced “this one proof”, appellant objected and the objection was overruled. On cross-examination it was elicited that Winship was shown five pictures and out of them the one introduced in evidence was “the most likely to resemble the person” he saw in the gas station but “I cannot make a positive identification.” Appellant claims the admission of the photograph over his objection was reversible error. ⁴⁶⁸ Whether or not a witness made a judicial identification of an accused, he may testify as to an extrajudicial identification made by him. If the extrajudicial identification is by a viewing of photographs, evidence as to it is admissible if the identification procedure was legal, that is not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

When so admitted it is substantive proof of identity. See Holmes v. State, 10 Md. App. 253 . When such evidence is challenged, the burden is on the defendant to show prima facie that the viewing procedure was illegal and if he does so the burden shifts to the State to show by clear and convincing evidence that it was legal. See Smith and Samuels v. State, 6 Md. App. 59 .

We see nothing in the record here compelling the conclusion that the photographic viewing procedure was illegal. Evidence that the witness identified a photograph of appellant as being that “most likely to resemble” the man he saw in the gas station was admissible for what it was worth. The lack of a positive identification did not render it inadmissible but the weight to be given it was for the jury. Hernandez v. State, 7 Md. App. 355, 363-364 .

Evidence that the witness had selected a photograph as most likely to resemble appellant being admissible, it was not error to place the photograph selected before the jury. Ill Edwin Leroy Randall and George Wesley Johnson, Jr. were called to testify on behalf of the State. Randall was obviously a reluctant witness but it was elicited from him that he met appellant when each was in the “Anne Arundel County” jail in May 1965; he had not known him before. They were incarcerated on the same tier but in different cells.

Appellant said he was in for a service station holdup. “I think he was supposed to have loaded the gun up. * * * Gave it to Montgomery * * * that is when Montgomery held a man up and the man gave him money and he is supposed to have shot the man.” On cross-examination Randall said appellant never denied that he ⁴⁶⁹ was at the scene of the crime. Johnson said he met appellant when both were inmates on the same cell block in the “Annapolis County” jail the latter part of May 1965. Montgomery was also there. “They had just come back, Brown and Montgomery had just come back from a lineup. * * * Montgomery said he didn’t understand how he got picked out in the lineup because when he shot this kid, there wasn’t anyone around — and Brown said — yes, he couldn’t figure it out because he loaded the gun in the bathroom * * * Mr. Brown was saying that he was sure that they wouldn’t find the gun. It was a twenty-two snub-nosed revolver that he had thrown in the Patuxent River and Mr. Montgomery checked him and said, it wasn’t the Patuxent River, it was the Patapsco River in Westport.” Appellant contends that neither the testimony of Randall or Johnson was admissible because it was so vague and inconclusive as to be irrelevant — that its probative value was outweighed by its prejudicial effect.

We do not agree. The court is vested with sound discretion with regard to the reception or rejection of evidence. Tomolillo v. State, 4 Md. App. 711, 716 . Stewart v. State, 1 Md. App. 309, 317 .

There was reasonable probability that the robbery discussed by appellant and Montgomery was connected with the offense for which appellant was on trial. We cannot say that the trial court abused its discretion in admitting it. It was the jury’s function to weigh the evidence and determine the credibility of the witnesses. Bieber v. State, 8 Md. App. 522 .

IV Corporal Armand C. Elliott of the Baltimore County Police Department was called to testify in behalf of the State. 2 On 27 May 1965 he was assigned “to go to the Ferndale Police Station and be processed and from there ⁴⁷⁰ go to the Annapolis jail to investigate a homicide.” At Ferndale he was fingerprinted and photographed. He was then handcuffed and taken to the Annapolis jail with “other prisoners.” He was placed in the A tier. 3 Appellant was in that tier. About an hour later he, appellant, Montgomery and other prisoners were transferred to the “D side” of the jail. “As we were walking up the tier to the D side, * * * the subject Montgomery, he came rushing down here and he brushed past me and came up to Mr. Brown here * * * He put his arm around him, very excited, and grabbed him by the * * * hand, real excited, and grabbed his hand and pulled him into cell number four. * * * I followed them right in, straight behind them and went up to the cell and just stood by myself by the cell door because there is a long tier on the D side. And the doors were open, you see. * * * It is a small area, closer than what was on A section.

I stood by the door and I glanced at the cell again and I saw Montgomery still holding Brown’s hand and he was talking very excitedly.” Elliott was asked by the State how far he was from Brown and Montgomery. “I would say about two feet, there sits a little sort of a cot at the door, right there, and the cot runs along the wall and they were sitting right here and I was right outside the door, sitting there. * * * I heard Montgomery say ‘Look, Dave, listen to me now, did you tell them anything about the filling station over in Dundalk?’ David Brown stated, ‘No, I ain’t said nothing to nobody.’ And Montgomery said, ‘Man, now keep your mouth shut and we won’t have nothing to worry about and don’t say anything about being at that filling station on North Point Road, the only guys we have to worry about is that colored guy I was fussing with and that white-haired guy.’ Montgomery further stated to David Brown, ‘You were standing over near the desk and he was in the middle of the floor; he couldn’t ⁴⁷¹ see behind the desk.’ And David Brown said, ‘Man I didn’t know you were going to shoot the guy, you did it so quick [pow] and it was all over.’ Montgomery sort of shouted, ‘Well, he jumped at me, didn’t he?’ And David Brown said, ‘Yes, he did jump at you, but what about that white-haired guy, he could have been around back somewhere?’ Montgomery stated, ‘Naw, they just brought that guy around because he must have saw us somewhere near the filling station.’ David Brown said, ‘Now, I remember where he could have been, remember when we left the station, you said you wanted to go to a rest-room and we stopped at the Avon or Savon station, well, that white-haired guy must have been