Bullock v. State

ALPERT, Judge. A jury in the Circuit Court for Wicomico County found the appellant, Lester Lee Bullock, guilty of robbery, for which the Honorable Alfred T. Truitt, Jr. sentenced appellant to seven years in prison. 1 Appellant was also convicted of several lesser included offenses for which sentences were not imposed. The victim of the robbery, Robert Reinert, Sr., was attacked while he was working in North Lake Park. Mr. Reinert testified that he observed a small red car with Delaware plates stop and two men alight from the vehicle.

After he resumed his job, he was tackled from behind and knocked unconscious; when Mr. Reinert regained consciousness, he was laying face down and was being beaten. The ⁸⁷ perpetrator of the robbery took Reinert’s pants, key chain, wedding ring and wallet. Reinert testified that a red jacket, admitted into evidence, looked like the jacket worn by one of the assailants. Two other witnesses saw a red Toyota and observed Mr. Reinert being beaten.

By the time they reached Mr. Reinert, however, the assailants had fled. Although the witnesses could not identify the robbers, they did testify that the taller one wore a red plaid jacket similar to that worn by appellant when he was arrested. Shortly after the attack, a description of the crime was broadcast over the police frequency. Deputy Sheriff Eckhardt testified: On April 30th at approximately 10:35 I received a broadcast in reference to be on the look-out for a small red vehicle with a black vinyl roof.

The vehicle was occupied by three black males. One subject was wearing a blue jacket and one subject was wearing a red and plaid flannel shirt. That was the broadcast I received. Approximately 15 minutes after the broadcast, while patroling the area, I noticed in the Grant Shopping Center a small Toyota Corolla, red in color, with the black vinyl top, Delaware Registration 49981.

BY MR. RUARK: Q At this time let me show you what has been introduced as State’s Exhibits 2-A, B and C. Do you recognize these, please? A Yes, that is the vehicle. Q That is the vehicle you observed?

A Yes, sir. * # * * ’* * Q Were there any individuals inside or close to that vehicle? A Yes, sir, there was three black male subjects standing right outside the vehicle. Q What did you do when you observed this? ⁸⁸ A Well, at this time I observed the vehicle and the subjects, and the subjects were acting in a loud and disorderly manner. One subject was wearing a blue jacket and one was wearing a red and plaid flannel shirt.

So at this time I obviously thought that they fit the description of the subjects. So I got on the radio and called for assistance. Deputy Eckhardt waited for assistance and then, with two additional officers, approached the car. Testimony at trial established that appellant was wearing a red plaid flannel shirt and was leaning against a vehicle that was a foot and a half from a red Toyota with Delaware license plates.

When the officers approached, appellant threw a pipe suspected of containing marijuana under a car and attempted to flee; he became combative when he was restrained. A fourth officer, Deputy Wade Chambers, brought Mr. Reinert to the shopping center from the scene of the attack to see if Reinert could identify his attacker. Deputy Chambers testified that there were about 35 to 50 people at the area of the show up, most of them black males twenty to thirty years old. Appellant was struggling with the police at the time and threatening them.

The red jacket was half on and half off appellant. Mr. Reinert, while sitting in Deputy Chambers’ car and while not wearing his glasses, identified appellant as his attacker. The police made three arrests at the shopping center that morning—appellant, another man named Michael Ingram who was sitting in a red Toyota at the time the police arrived, and a third man, Derrick Tillman. At trial, Michael Ingram testified for the State, pursuant to a favorable plea agreement with the State.

He admitted that he had been the driver of the red Toyota whose occupants were involved in the attack on Mr. Reinert. He also identified the appellant and Tillman as the men who beat and robbed Mr. Reinert. ⁸⁹ Over objection by defense counsel, Deputy Chambers testified that, at the shopping center on the morning of the robbery, Mr. Reinert had identified appellant as one of the men who had attacked him. During its case-in-chief, the State did not ask Mr. Reinert if he had identified appellant at the shopping center; the defense, however, called Mr. Reinert to the stand during the presentation of its case. 2 Mr. Reinert testified that although he remembered being taken to the shopping center and seeing a car that looked like the one he described to police, he could not remember anything else. This obviously included identifying the appellant.

In response to a question as to why he couldn’t remember what transpired at the shopping center, Mr. Reinert explained: “Well, I was in a complete sweat at that time and emotionally upset.” Appellant produced an alibi witness who testified that he had been with the appellant at the shopping center at the time of the attack. The defense also produced as witnesses two men who were inmates with Ingram at the Worcester County Jail. One testified that Ingram had said “he would do anything he had to do to get out of these charges[.]” The other testified that Ingram had said that appellant and Tillman were not involved but that he was implicating them rather than the actual robbers, two men from Baltimore. Appellant presents two questions for our consideration: I. Did the trial judge err by permitting a police officer to testify concerning the victim’s show-up identification of appellant where the circumstances surrounding the identification did not tend to establish its reliability, the victim could not remember the confrontation, and the defense was not allowed to cross-examine him on the identification issue? ⁹⁰ II.

Did the trial judge err by admitting an accomplice’s extrajudicial statement naming appellant as one of the assailants? We answer both questions in the negative and, therefore, affirm. I. The Extra-Judicial Identification Appellant asserts that the judge erred when he admitted Deputy Chambers’s testimony that Mr. Reinert had identified appellant as one of his attackers during the show-up at the shopping center. His objection is based on the fact that Mr. Reinert himself did not testify on direct examination as to his identification of his attacker that day.

The reason for this failure to inquire was probably because, as the defense later discovered, Mr. Reinert could not remember making the identification. The State argued that this failure was immaterial inasmuch as Mr. Reinert was available on cross-examination for the defense to question about the identification. The defense did in fact call Mr. Reinert as part of its case. Reinert testified that although he remembered being taken to the shopping center and seeing a car that looked like the one he described to the police, he could not remember anything else.

In response to a question as to why he couldn’t remember what transpired at the shopping center, Mr. Reinert explained: “Well, I was in a complete sweat at that time and emotionally upset.” The Supreme Court of the United States recently addressed the admissibility of testimony concerning a prior, extra-judicial identification when the identifying witness is unable to explain the basis for the identification because of memory loss. United States v. Owens, 484 U.S.-, 108 S.Ct. 838 , 98 L.Ed.2d 951 (1988). In Owens , a correctional counselor at a federal prison was brutally beaten with a metal pipe. The counselor, John Foster, was severely injured and remained hospitalized for nearly a month.

As a ⁹¹ result of those injuries, Mr. Foster suffered serious memory loss. One week after the attack, Foster could not remember his attacker’s name. Approximately three weeks after the attack, Foster told an F.B.I. agent investigating the attack that Owens had been his attacker. Foster also identified Owens from an array of photographs.

At trial, Foster testified that he “clearly remembered” identifying Owens as his assailant, but admitted that he could no longer remember seeing his attacker. 108 S.Ct. at 841 . Foster also admitted that he could remember none of the other numerous visitors at the hospital except the F.B.I. agent. Foster thus could not remember whether any of those visitors had suggested Owens was the assailant, nor could he remember having identified someone other than Owens as his attacker, although hospital records indicated that he had. The Supreme Court rejected a defense claim that Foster’s memory loss deprived the defendant of the right to be confronted with the witnesses against him.

The Court noted: “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Owens, 108 S.Ct. at 842 , citing Kentucky v. Stincer, 482 U.S. —, —, 107 S.Ct. 2658, 2664 , 96 L.Ed.2d 631 (1987), quoting from Delaware v. Fensterer, 474 U.S. 15, 20 , 106 S.Ct. 292, 294