Carter v. State

⁶⁸⁸ BLOOM, Judge. Gardnel Allen Carter, the appellant, was convicted by a jury in the Circuit Court for Harford County of attempted second degree murder, robbery with a dangerous and deadly weapon, battery, carrying a weapon with the intent to injuré, and theft of less than $300.00. Following the imposition of sentences, appellant filed this appeal, raising the following issues: 1. Whether the trial court erred in denying the motion to suppress the State’s identification evidence. 2.

Whether the trial court erred in denying the motion for mistrial. 3. Whether the trial court erred in admitting impeachment evidence. Upon examination of the record, we conclude that the trial court committed no reversible error. The facts of this case may be briefly summarized.

On 13 June 1987, William Moses went to the American Legion Hall bar in Bel Air with some friends. His friends later decided to leave the bar and go home, but Moses wanted to go to the Veterans of Foreign Wars (VFW) post in Perry-man. Moses asked appellant, whom he had seen at the bar on previous occasions, for a ride to the VFW post in appellant’s van. Appellant agreed.

He drove the van, with Moses sitting next to him in the front seat, during the thirty or forty minute trip to the VFW. Two of appellant’s friends rode in the rear of the van. Upon arrival at the VFW post, Moses was admitted but appellant and his two friends were denied entrance because of their improper attire. They called out to Moses, who then left the VFW and walked back to the van.

He was pushed inside the van, beaten by appellant with a baseball bat, and robbed of his wallet, money, watch, and shoes. At a preliminary hearing in April, 1988, and at a courtroom lineup in October, 1988, Moses identified appellant as his assailant. ⁶⁸⁹ 1. Motion to Suppress Appellant’s first contention is that the trial judge 1 erred in denying his motion to suppress his identifications at the preliminary hearing and at the pre-trial courtroom lineup. He contends that the identifications were tainted by an improperly suggestive procedure at the preliminary hearing.

He asserts that he was denied due process because the suggestive procedure created a substantial likelihood of irreparable misidentification. An identification of a defendant, whether it is judicial or extrajudicial, must comport with due process. Manson v. Brathwaite, 432 U.S. 98, 113 , 97 S.Ct. 2243, 2252 , 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 196 , 93 S.Ct. 375, 380 , 34 L.Ed.2d 401 (1972); Webster v. State, 299 Md. 581, 599-600 , 474 A.2d 1305 (1984). Due process requires that an identification procedure may not be impermissibly suggestive.

Evans v. State, 304 Md. 487, 498 , 499 A.2d 1261 (1985). At the suppression hearing, appellant testified that Detective Lillian Taylor greeted him by name in the hallway prior to a preliminary hearing. He said that the victim, Moses, did not appear to recognize him until Detective Taylor addressed him by name. He contends that Moses was able to identify him solely because of Detective Taylor’s suggestive influence.

As support for this contention, appellant points out that Moses failed to identify him from photographic arrays which he saw on two occasions prior to the hearing. The suppression hearing testimony of Moses and Detective Taylor contradicted appellant. They both said that Taylor did not speak appellant’s name when she greeted him. Moses further testified that he was unable to identify appellant from photographs because his vision was somewhat impaired as a result of the beating.

He said he told ⁶⁹⁰ the police that he believed he could, however, identify his assailant if he saw him in person. The trial judge ruled that appellant failed to make a prima facie showing that the identification procedure at the hearing was suggestive. He denied the motion to suppress the identifications made at the hearing and the courtroom lineup. It is the trial judge who determines the credibility of witnesses when, as in a suppression hearing, he functions as the trier of fact.

See Parker v. State, 66 Md.App. 1, 10 , 502 A.2d 510 cert. denied, 306 Md. 70 , 507 A.2d 184 (1986). In the case at bar, the trial judge obviously found the State’s witnesses more credible than appellant. We discern no error in his finding that the identifications did not result from any improperly suggestive procedure. The identifications were therefore properly admitted into evidence. 2.

Motion for Mistrial Appellant’s second contention is that the trial judge erred in denying his motion for a mistrial. He contends that his right to a fair trial was prejudiced when a police officer improperly alluded to appellant’s arrest in another jurisdiction. He further contends that the curative instruction given by the judge did not remedy the prejudicial effect of the officer’s remark. The decision whether to grant or deny a mistrial rests in the sound discretion of the trial judge.

Tibbs v. State, 72 Md.App. 239, 253 , 528 A.2d 510 cert. denied, 311 Md. 286 , 533 A.2d 1308 (1987). A mistrial should be declared only under extraordinary circumstances and where there is manifest necessity to do so. Id. The standard of review from a denial of a motion for mistrial is whether there was an abuse of discretion.

Russell v. State, 69 Md.App. 554, 562 , 518 A.2d 1081 (1987). The decision of the trial judge will not be reversed on appeal unless there has been clear prejudice to the defendant. Id. At the trial in the case sub judice, the prosecuting attorney asked Deputy Paul Cole how he had assembled the ⁶⁹¹ photographic array shown to Moses.

The prosecutor said, “Why would you have those particular six photographs?” 2 Cole replied, “What I had done is I found out that [the appellant] had been arrested in Baltimore City.” Defense counsel objected that the reference to the defendant’s arrest in another jurisdiction was prejudicial and he moved for a mistrial. The trial judge denied the motion and gave the following curative instruction: Mr. Foreman, ladies and gentlemen of the jury, the officer said the Defendant had been arrested in Baltimore City. Now, whether or not a person had an arrest is not in any way relevant to the issue of guilt or innocence in a case. So that I am not telling you you didn’t hear it, but I am telling you you are not to consider that when it comes time to consider the issues of this case.

You are not in any way to consider that as reflecting upon guilt or innocence, so if it comes up in any way, I am telling you it would be improper. It would be a violation of his rights for you to consider that in any way on the merits of this case. When curative instructions are given, it is generally presumed that the jury can and will follow them. Brooks v. State, 68 Md.App. 604, 613 , 515 A.2d 225 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987).

Furthermore, the trial