Chambers v. State

WENNER, Judge. Appellant, Robert Bernard Chambers, was convicted by a jury in the Circuit Court for Baltimore County (Joseph F. Murphy, Jr., J., presiding) 1 of robbery. He was also convicted of robbery with a deadly weapon. The conviction for robbery was merged with the conviction for robbery with a deadly weapon.

The court sentenced appellant to five years imprisonment. Upon this appeal, appellant presents us with four questions: 2 ²¹³ I. Did the circuit court err when it denied his motion to suppress an out-of-court identification?

II

Did the circuit court err when it refused to grant him a requested jury instruction?

III

Did the circuit court err when it denied his motions for mistrial?

IV

Was the evidence insufficient to sustain his convictions? We shall answer each question in the negative, and affirm the judgments of the circuit court. Only such facts as are necessary for our resolution of the questions presented by appellant will be recounted. Suffice it to say at the outset that appellant and two black males entered a retail store in Baltimore County and robbed Dorothy Sergeant, an employee of the store, at gunpoint.

Approximately $60 in cash, several items from the store, and a ring and watch belonging to Ms. Sergeant were taken by the robbers. I. Appellant contends that his identification by Ms. Sergeant at a pre-trial lineup as one of the men who had robbed her was impermissibly suggestive. Specifically, appellant contends that the lineup identification should have been suppressed because he was older and taller than the other persons in the lineup, and because he was the only person in the lineup that had a bald spot at the back of his head. We see it somewhat differently. ²¹⁴ In determining the admissibility of an out-of-court identification, we are accustomed to applying what is essentially a two part analysis.

First, there must be a showing by appellant that the procedure employed by the police was unnecessarily suggestive. Loud v. State, 63 Md.App. 702, 706 , 493 A.2d 1092 , cert. denied, 304 Md. 299 , 498 A.2d 1185 (1985). Second, if appellant has cleared that first hurdle, it is incumbent upon the State to show that the reliability of the out-of-court identification outweighs its suggestiveness. 3 Id. With these precepts firmly in mind, we turn now to a review of the evidence adduced at the suppression hearing.

Donna Shearer, an attorney representing appellant, was present at the lineup. Her principal objection to the lineup was that appellant was the only person in the lineup who had a bald spot at the back of his head. Ms. Shearer made this objection at the lineup, and she reiterated it at the suppression hearing. It is apparent from the record, however, that the effect of the presence or absence of bald spots in those persons participating in the lineup was, at most, negligible.

Although each participant was required individually to step forward from the lineup and be viewed face forward as well as in profile, it was not until the lineup had been concluded and the participants were leaving the room that Ms. Shearer first noticed appellant’s bald spot. Moreover, there is nothing in the record to suggest that Ms. Sergeant’s identification of any of the men who had robbed her turned upon the presence or absence of a bald spot. Finally, when Ms. Shearer testified at the suppression hearing she said nothing whatever about any difference in the ²¹⁵ ages of the persons who were included in the lineup, nor did she say that appellant was taller than the other persons who were included in the lineup. 4 We do not believe that a lineup must be composed of clones in order to comport with fairness. Webster v. State, 299 Md. 581, 620 , 474 A.2d 1305 (1984).

Slight variations in ages and heights among the persons included in a lineup do not make the procedure per se unfair. Pope v. State, 7 Md.App. 533, 535 , 256 A.2d 529 (1969). In the case sub judice the circuit court adopted, for the sake of argument, appellant’s testimony that he differed slightly in age from the other persons in the lineup, and that he was “about the tallest” person in the lineup. Nevertheless, the circuit court concluded that the lineup as composed was not impermissibly suggestive.

From the evidence we have just recounted, we are not prepared to say that the circuit court was clearly erroneous in reaching that conclusion. Md.Rule 8-131(c).

II

According to the three alibi witnesses that testified at trial on behalf of appellant, appellant was with them at the home of Denise Allen at the time of the robbery. Appellant did not learn until several days before trial that Ms. Allen had been transferred from the local jail to the Division of Correction, and, according to appellant, he did not have time to secure a writ so that Ms. Allen could be produced at trial. At appellant’s request, the State agreed not to argue to the jury that an inference adverse to appellant could be drawn from Ms. Allen’s absence. Appellant asked the court to instruct the jury that “the failure to produce Denise Allen as a witness is not attributable to the State or the defense and should not be held for or against either the State or the defense.” The trial judge declined to ²¹⁶ do so, and appellant contends that the trial judge’s failure to give the requested instruction constitutes reversible error.

We disagree with appellant for several reasons. 5 In the first place, a trial judge need give only those instructions which are generated by the evidence adduced at trial; and of course, the instructions actually given must correctly state the law. Johnson v. State, 303 Md. 487, 517 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986). In the case at hand, the trial judge found that the instruction proposed by appellant was “not appropriate.” Inasmuch as the State lived up to its agreement not to argue to the jury that no inferences adverse to appellant could be drawn from the absence of Ms. Allen, we hold that the trial judge was correct in concluding that the instruction proposed by appellant was not generated by the evidence adduced at trial. Furthermore, as we see it, Ms. Allen was not unavailable to be subpoenaed as a witness simply because appellant was unaware that she had been transferred from a local jail to the Division of Correction.

Moreover, it appears to us from the record that Ms. Allen’s testimony would have been no more than cumulative. And, as the State points out, the court instructed the jury that the number of witnesses produced at trial is not determinative of which side should prevail. There was no error.

III

Appellant next contends that he was entitled to a mistrial for two reasons. First, he contends that he was unduly prejudiced because certain documents not in evidence were sent into the jury room with the jury as it began its deliberations. Second, appellant contends that he was de-' ²¹⁷ nied a fair trial because the trial judge questioned Ms. Sergeant about her inability to identify him in court. We reject both contentions.

Whether to declare a mistrial or not is a matter which is committed to the sound discretion of the trial court. Ordinarily, the exercise of that discretion will not be disturbed upon appeal absent a showing of prejudice to the accused. Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974). In order to warrant a mistrial, the prejudice to the accused must be real and substantial; a mistrial should never be declared for light or transitory reasons.

Id. at 430-431 , 326 A.2d 707 . With that standard in mind, we turn now to the case at hand. A. Shortly after the jury had begun its deliberations, the trial judge was informed by the foreman of the jury that a handwritten letter not in evidence had been found in a box of exhibits submitted to the jury for its consideration. The trial judge had the jury brought into the courtroom, at which time the following exchange occurred: THE COURT: ... [I]t’s come to my attention that apparently the -box that was sent in to the jury room that contained the exhibits admitted into evidence in this case also contained other items, a piece of paper with writing on it and four photographs.

Three are color photographs, one is a black-and-white photograph. Before I can do anything further, though, I want to make sure that you folks have not used these in any way. You’re under oath as jurors in the case, and I need at this time to know whether or not anybody has examined the contents of any of those things. Has anybody reviewed the— THE FOREMAN: Your Honor, I didn’t even see the other photographs you were talking about.

They must have been in the bottom of the box. THE COURT: Yes. ²¹⁸ THE FOREMAN: As soon as we saw the sheet, we notified the bailiff. So you found some other things that we didn’t know were there. THE COURT: Okay.

THE FOREMAN: As far as the sheet, that touched no one else’s hands but my own. I stood in front of the other jury, I read the top part, I realized the lady’s name and I said, “This wasn’t submitted.” No one recognized it. We immediately threw it back in the box, myself, and no one here has seen the contents of that letter. THE COURT: Okay, So do I have your assurance, Mr. Foreman, and, of course, the assurance of all the ladies and gentlemen of the jury, that the