Conway v. State

Gilbert, J., delivered the opinion of the Court. Marshall Edward Conway, appellant, was convicted of murder in the first degree, and two charges of assault with intent to murder, at a jury trial presided over by Judge Charles D. Harris, in the Criminal Court of Baltimore. Appellant was sentenced to life imprisonment for the murder conviction and a term of 15 years incarceration on each of the assault with intent to murder charges, to be served consécutively with the life imprisonment sentence. In his appeal to this Court, the appellant attacks the judgment of the Criminal Court of Baltimore on a sexpartite basis.

We shall consider each contention seriatim. He contends: “I. The intra-departmental police photographic iden ²⁰¹ tification procedure, when appellant was already in custody, was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification warranting the exclusion of identification evidence by Officers Nolan and Welsh.

II

The prosecution violated the sequestration rule by, without the knowledge of the court or the accused, or with the consent of the court, consulting with a key witness the night before his appearance.

III

The prosecutor denied accused a fair trial by first persistently questioning a co-defendant (indicted but not tried) despite his claim to Fifth Amendment privilege, and then in closing argument claiming erroneously, without correction by the court, that the witness had ‘spilled the beans.’ IV. The court below erred in not permitting appellant to argue his case before the jury even though he had permitted him to act as his own counsel. V. The court below erred in refusing continuance to appellant who sought new counsel and in pressing him to trial with counsel who had conferred with him only one hour in a capital case.

VI

The court should have granted the motion for judgment of acquittal.” THE FACTS The unprovoked, brutal and senseless slaying of Officer Donald T. Sager, a 13 year veteran of the Baltimore City Police Department, and the simultaneous attempted murder of Officer Stanley Sierakowski, a 17 year police veteran, occurred on Friday the night of April 24, 1970. Both uniformed officers usually worked as partners in one marked patrol car, but on the night of the shooting they were assigned individually to patrol in separate marked police vehicles in order “to give the people there better coverage.” Shortly after 9:00 p.m., the two officers responded to a domestic complaint at 1201 Myrtle Avenue, received ²⁰² by Sager. Sierakowski arrived first and parked his vehicle. Sager soon pulled up, parked, and both officers proceeded to investigate the complaint.

Sager took the complaint and “about ten minutes” later both returned to Sager’s car. While seated therein, the team was alerted via a radio call to a “family thing” at the 900 block Argyle Avenue, about two and a half or three blocks away. They responded in Sager’s car because “he was pointed the right way.” A complaint was taken and the two officers returned to Myrtle Avenue and parked in front of 1201 Myrtle Avenue near the corner of Dolphin Street. Sager remained in the driver’s seat while Sierakowski sat on “the passenger’s side to the right of him.” While in the midst of writing out their reports, the officers were interrupted by the woman who had earlier made the domestic complaint.

They got out of the car, “looked at the area,” saw no one, and returned to the car to finish their reports. It was at this point in time that Officer Sierakowski observed “at least three, I know it was more than two there, moving around a little.” He described the individuals as “Negroes * * * males * * * all about 25 or so” and said they were “joking around, moving around” in the vicinity of his patrol car parked nearby. As the group passed the patrol car in which Sager and Sierakowski were seated, “one of them came over and come right next to the car, about three inches, * * *. He seemed to smile, and I nodded to him, and went back and * * * kept writing my report.” The group passed towards the rear of the car and owing to the fact that Officer.

Sierakowski “could hear the conversation” he “knew” that they had not crossed the street. About two minutes after the group had passed the patrol car, the lady who had made the original complaint again tried to get the officers’ attention. As he opened the door and began to alight, Officer Sierakowski “heard a volley of shots,” looked over his car and “saw a motion going from the back of the car towards the building side.” The officer testified that he “heard the shots, and ²⁰³ I saw the fire coining out of the gun. * * * four slow fires. I was struck * * *.

It was four bullets in the stomach, and both of my hands were shot, and my arm was broken.” Sierakowski surmised that the group which had seconds earlier passed the patrol car and the person or persons shooting at him and Officer Sager “from the rear of the car” were one and the same because “they just passed me, and there was no pause in the conversation.” The fusillade of gunfire ceased and as Sierakowski lay grievously wounded in the gutter, wedged between the curb and Sager’s vehicle, a man came walking towards him, stooped over and relieved the officer of his wristwatch, and then started to “grab ahold” of his holster. “He grabbed the bottom of the holster, * * * and I hollered out, ‘No,’ and I don’t know whether I passed out or not, but the next thing I knew, he wasn’t there and I started trying to get up.” Sierakowski then “started reaching for the mike. It was difficult.” After his second or third attempt to reach the microphone Sierakowski noticed his partner. Officer Sager, who was “bleeding from the face and from his nose, rather, and his mouth, and he was still breathing, * * *.” Officer Sager did not respond “because he was gurgling while he was breathing; the blood was gurgling in his throat.” Finally, Sierakowski got a “signal 13” distress message through. Officer Francis Frederick testified that he and Officer Billy R. Anderson, both of the Tactical Squad of the Baltimore Police Department, assigned to “high crime areas,” heard a police distress signal over their radio at approximately 9:55 p.m. on the evening of April 24, 1970.

They were on patrol at Argyle Avenue and Dolphin Street and it took only 15 or 20 seconds for them to arrive in front of 1201 Myrtle Avenue. Frederick alighted from his vehicle, approached the Sager vehicle and noticed “Officer Sager slumped behind the wheel of the radio car.” Two ambulances were quickly summoned. Frederick observed that “both windows on the radio car, left and right rear, had been shattered by gunfire.” Other officers began ar ²⁰⁴ riving at the scene. Officer Frederick accompanied Sager to Provident Hospital where the latter was pronounced dead on arrival.

An autopsy subsequently performed on Sager’s body revealed that the shots which killed him were not fired at close range. Sager’s gun “was still in his holster. It had not been fired.” The autopsy report indicated that Sager died almost instanter. Detective Charles Bruggerman of the Homicide Squad arrived at about 10:30 p.m. and began marking the evidence, “circled where the evidence was found, and had photographs taken.” In toto Bruggerman found eight .45 caliber “shell casings and two spent projectiles inside and near the exterior of the car.” Officer Raymond Norris, on duty nearby with his partner, overheard Sierakowski’s statement, “I have been shot,” on his radio and was at the scene in about a minute.

He rendered what assistance he could to Sager and Sierakowski. While he proceeded to “keep the area clear” he chanced to observed “.45 casings laying in the street and around the car, and on both sides of it, * * *.” Officers Roger Nolan and James Welsh, assigned to the Tactical Squad, were patrolling the area of Pennsylvania and North Avenues, in an unmarked car and in plainclothes, when, at about 9:55 p.m., on the evening of April 24, 1970, they received a signal 13 police distress signal. On their way to the scene of the shooting, they “got to the intersection of Myrtle and Fremont” and “saw two males walking hurriedly from Myrtle Avenue across an old fire house to Fremont Avenue, they had gotten to this alley * * * which is known as, its a small street * * * called Smithson Street. We stopped two males at this point and told them of the incident, and more or less questioned them about their whereabouts.” The reason the officers stopped the two was because of “information * * * received over the radio * * * that the males had been running north of Myrtle Avenue from the scene of the incident.” The two individuals were then patted down and placed in the police vehicle.

Nolan and Welsh again continued towards the locus criminis. ²⁰⁵ When they got to the intersection of Fremont Avenue and Mosher Street, they “observed a lone male walking north on the east side of Fremont Avenue” three quarters of a block from where they had stopped the other two males. Officer Nolan testified: “Well, he was walking rather hurriedly, and the manner in which he appeared, * * *. It was very few people on the street at that time of night. He was dressed in a sweater and the temperature at that time was rather cold.

The person looked to be flushed or excited, and, * * * as we pulled by him, he looked at us once or twice, * * * he more or less made jerky motions.” The officers made a U-turn at Small Street and proceeded to block passage from the crosswalk at Fremont and Mosher with their vehicle. The lone male “walked right up to the curb at Fremont and Mosher, as if to cross.” When the male reached the curb where the police vehicle was stopped, Officer Nolan, seated on the passenger side with his badge plainly in sight, announced, “Police officer, and the male bent over and looked in the window of the car.” The distance between the officer and the male was approximately three and one-half feet. The area was well illuminated as a result of various light sources at each quadrant of the intersection of Fremont and Mosher. Light shining from an “Esso Filling Station” on the southwest corner of the intersection just about illuminates the whole area.

Nolan observed the man for “maybe thirty seconds or a minute,” and was thus able to supply a detailed portrait of the male’s physiognomy and raiments. “He was a Negro, male; * * * in the mid-twenties, and had a short bush haircut. * * *. He had a little hair on his chin, * * *, small goatee, and he was about medium-dark complected, * * * six feet, or six-one, and he was thin. He had on a black sweater and a V-necked sweater, * * *. He had the sleeves rolled up, both sleeves.

He was ²⁰⁶ wearing dark pants that appeared to be levis. He was wearing combat boots * * The man backed up a few steps, turned around and ran. Officer Welsh stayed in the police vehicle with the two suspects detained earlier, while Nolan gave chase. The male ran south on Fremont Avenue.

In pursuit for several blocks, Nolan lost sight of the man for a brief period when he ran behind a house on Mosher Street. Nolan ran towards the direction of the house and was only “ten yards” behind the man when he, Nolan, heard a “metallic sound” which “sounded like a weapon or automatic slide.” Nolan “got a little excited” and the “first shot went off * * * maybe a yard or so away.” The officer was “blinded” momentarily, fell down and was shot at several more times as he tried to get up. Attempting to dodge the gunfire he made a lunge at a wire fence nearby, was shot at again, and finally took refuge behind a telephone pole. He felt bullets striking the pole and then managed to return the fire.

Though not hit by gunfire, the officer injured his hip and cut his face as he dove at the fence. Nolan testified that he had previously seen this man a “few times” one or two months before the shooting in the area of Pennsylvania Avenue and Mosher Street when Nolan had worked “foot patrol” there. He did not know the man by name, but the face was familiar to Nolan, and Nolan was “quite familiar with a lot of people that live down in that neighborhood, and especially most of the men.” Officer Nolan had lived in the neighborhood “for about twenty-six years.” Following the exchange of gunfire between Officer Nolan and the lone male, the latter was last seen by Nolan “hightailing it” into the night. Eventually Nolan went home at about 5:00 a.m. on the morning of Saturday, April 25, 1970.

Lieutenant Thomas McKew of the Homicide Division of the Police Department testified that on the morning of April 26, 1970, at 12:30 a.m., he personally arrested the appellant at the U.S. Post Office on Calvert and Fayette Streets, in Baltimore. The arrest was executed ²⁰⁷ pursuant to an arrest warrant premised upon murder and assault with intent to murder charges. The charges were in turn predicated upon evidence obtained during the investigation of the April 24th incident. THE PHOTOGRAPHIC IDENTIFICATION Appellant firstly urges that we should depart from our previous holdings relative to photographic identification procedure, at least to the extent of qualifying those decisions.

He argues that we should follow the reasoning of United States v. Zeiler, 427 F. 2d 1305 , (3rd Cir. 1970), and the more recent case of United States v. Ash, 10 Cr. L. 2408, decided March 1, 1972 by the United States Court of Appeals for the District of Columbia. Appellant grounds his argument on the factual situation surrounding the photographic identification and earnestly entreats that the procedure was impermissibly suggestive. Mr. Justice Harlan, writing for the Supreme Court, in Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968), said: “Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.

The danger that use of the techniques may result in convictions based on misidentification may be substantially lessened by a course of cross examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial fol ²⁰⁸ lowing a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentificati'on.” The testimony in the instant case, relative to the identification, can be summarized as follows: On the afternoon of April 28, 1970, Officers Nolan and Welsh were separately shown two series of photographs by other police officers. Officer Nolan identified five photographs in the group first shown to him on April 28.

He made a “partial selection” of a photograph that he thought resembled his assailant, but he was not sure because the person depicted seemed to him to be younger and of a darker complexion than his assailant. It was, however, established that the photograph the officer partially identified was a 1963 photograph of the appellant. Later, on the same day, Officer Nolan made a positive identification of the appellant from another batch which included a 1970 photograph of the appellant. As previously mentioned, the officer testified that he had seen the appellant several times before the shooting while he, the officer, had been working foot patrol in the area, and that he had an excellent opportunity the night he was being shot at to observe his assailant’s face.

Officer Welsh made separate identifications of the photographs, including a tentative selection of the 1963 photograph and a positive identification of the 1970 one. The appellant argues that the photographic procedure was impermissibly suggestive and that inasmuch as the appellant was in custody the entire procedure was illegal under United States v. Ash, supra. This Court in Smith and Samuels v. State, 6 Md. App. 59, 67-68 , 250 A. 2d 285 (1969), said: “Evidence of the identity of the defendant may be challenged by a motion to exclude or suppress such evidence made before or during ²⁰⁹ trial or by an objection to the evidence when it is offered. Md. Rules 725, 522.

If the motion is made before trial it may be determined by the court before trial or the court may order that it be deferred for determination at the trial of the general issue. Rule 725d. When the determination of the admissibility of the challenged evidence is made during a trial before a jury, evidence on the issue shall be received out of the presence of the jury. At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal.

If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. * * *.” No evidence was produced by the appellant at the hearing on the contested pre-trial identification, and the burden of showing, prima facie, the illegality of the photographic identification was therefore not met. 1 Zeiler extended the holdings of the Supreme Court in United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L.Ed.2d 1178 (1967), so as to ²¹⁰ require the presence of counsel at photographic identifications when the accused is in custody. We held in Crenshaw v. State, 13 Md. App. 361 , 283 A. 2d 423 (1971), that there is no constitutional right to counsel at such a proceeding. The Second Circuit in United States v. Bennett, 409 F. 2d 888 (C.A.2 1969), cert. denied, 396 U. S. 852 , 90 S. Ct. 113 , 24 L.Ed.2d 101 , reh. denied, 396 U. S. 949 , 90 S. Ct. 376 , 24 L.Ed.2d 256 , said: “* * * to require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary. None of the classical analyses of the assistance to be given by counsel, (citations omitted) suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant’s absence even when, as here, the defendant is under arrest; * * Counsel is to be provided rather at trial so as to prevent a defendant from falling into any traps that may be devised by the opposing attorney, and to ascertain that a defendant is afforded all available defenses.

United States v. Bennett, supra. There is nothing in Gilbert or Wade that requires counsel for the accused to be present at a photographic identification irrespective of whether or not the accused is in custody. United States v. Ballard, 423 F. 2d 127 , (5th Cir. 1970), Crenshaw v. State, supra. The United States Court of Appeals for the District of Columbia in Ash v. United States, supra, has become the second federal appellate court to extend Wade .

However, Ash seemingly provides some qualifications on Zeiler in that the majority 2 recognized that there may ²¹¹ be circumstances that would justify an exception to Zeiler’s general requirement of counsel, saying: “There are instances in which a photographic exhibition — even though an event capable of being adduced at trial — is too preliminary and preparatory to be regarded as a critical stage of the prosecution requiring attendance of defense counsel. Certainly when a case is in the pre-arrest investigative stage there is justification for photographic viewings, assuming no undue suggestiveness, Simmons v. United States, 390 U. S. 377 (1968). There is obvious need in terms of effective police investigation to ask the victim or other witness to view photograph books organized by the police in terms of modus operandi and nature of offense.” Another exception noted by the majority was a case where, in an on going investigation, time is of the essence and the need for photographs is an integral part of the investigative procedure. Such an exception, however, is limited by Ash to “special circumstances.” The majority held: “In the circumstances of this case, defendant’s constitutional right to counsel at critical stages of the prosecution was violated when the Government, having him in custody, and having failed to arrange a corporeal lineup, made a photographic presentation to witnesses without attendance of counsel.

The Government’s insistence on admission of these color photographs at the trial produced reversible error.” We think the reasoning of the dissent in Ash to be more persuasive. There the minority said: “It is noteworthy that in Wade, where the Court remanded the case for a hearing as to whether the in-trial identification had an inde ²¹² pendent untainted origin, the Court, in describing the ways in which the independent recollection of the witness could be proved, listed ‘the identification by picture of the defendant prior to the lineup.’ This is a plain inference that pretrial photographic identification — without the presence of counsel — is an accepted investigatory or preparatory technique and is relevant proof of the validity of the in-trial identification. * * * “What makes Wade a Sixth Amendment right case — and why Ash is not — is that Wade was deprived of his counsel’s presence at a time and place where it counted — the lineup. The lineup is truly a ‘critical stage’ of the prosecution at which the Sixth Amendment requires counsel * * *. Not so with appellant Ash.

He had no counsel present — neither was Ash — when the prosecuting attorney was displaying photographs to government witnesses in preparation for trial. But at trial his counsel was under no handicap in his defense, for two reasons: (1) the inherently different nature of a photographic identification from a lineup, and (2) the full pre-trial due process hearing at which defense counsel familiarized himself thoroughly with the preceding events and anticipated testimony.” We rejected Zeiler in Crenshaw, supra, and subsequently in Cooper v. State, 14 Md. App. 106 , 286 A. 2d 579 (1972). Our reading of Ash fails to convince us that we should reverse or modify our previous holdings. The United States Courts of Appeals for the Second, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits have explicitly refused to extend Wade , and have thereby refused to adopt the rationale of Zeiler .

Our sister states of California, Mississippi, North Carolina, Illinois, Washington, Wisconsin, Delaware, Massachusetts, Flor ²¹³ ida and Arkansas have all, in addition to us, declined to adopt the rationale of Zeiler . Our