Cook v. State

Orth, J., delivered the opinion of the Court. THE ADMISSION OF IDENTIFICATION EVIDENCE The general rule in this jurisdiction has been long established that evidence to show the identity of an ac ²⁴⁶ cused as the criminal agent in the perpetration of the crime charged was admissible when adduced from: 1) an eyewitness to the crime, by such witness a) making a judicial identification; or b) testifying as to an extrajudicial identifi- ' cation made by the witness; 2) a third party testifying as to an extrajudicial identification by an eyewitness when made under circumstances precluding the suspicion of unfairness or unreliability, where the out of court declarant was present at trial and subject to cross-examination. See Judy v. State, 218 Md. 168, 174 ; Walters v. State, 242 Md. 235, 239 ; Johnson v. State, 237 Md. 283, 289 ; cited in Smith and Samuels v. State, 6 Md. App. 59, 63-64 . The substance of these rules of law are still effective in the light of the Wade — Gilbert—Stovall trilogy of opinions decided by the Supreme Court of the United States. 1 They were, however, qualified by the exclusionary rules enunciated in those opinions.

The exclusionary rules were predicated upon the determination that a pretrial confrontation, within the meaning of the opinions, was a critical stage of a criminal proceeding. We have found that a confrontation within the meaning of Wade —Gilbert—Stovall was a pre-trial confrontation which was not subject to fair and meaningful objective review later at the trial, including, but not limited to, lineups, both pre-indictment and post-indictment. Palmer v. State, 5 Md. App. 691 ; Tyler v. State, 5 Md. App. 265 . Therefore, absent a waiver of the right, such confrontation without the presence of counsel for the accused was illegal.

And, independent of any right to counsel claim, such confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. But while the mere ²⁴⁷ lack of counsel, absent an effective waiver, is sufficient of itself to render such a confrontation illegal, whether the conduct of the confrontation violates due process, even with counsel present or his presence properly waived, depends on the totality of the circumstances surrounding it. Stovall v. Denno, supra, at 301-302. 2 That a pre-trial confrontation is illegal excludes per se evidence at the trial as to the extrajudicial identification but it does not per se exclude a judicial identification. A judicial identification is admissible despite an illegal pre-trial confrontation when the prosecution shows that the in-court identification had an independent source, that is that it was based upon observations of the suspect other than the illegal confrontation identification.

This must be established by “clear and convincing evidence.” And even if a judicial identification or an extrajudicial identification which should have been excluded is admitted, the admission is not prejudicial error if its introduction was harmless beyond a reasonable doubt. See Smith and Samuels v. State, supra, at 65. These exclusionary rules only come into play when the confrontation is illegal, whether by the absence of counsel or by denial of due process of law. They are not applicable when the confrontation is legally conducted, and, in such event, the admission of the identification evidence is governed by the rules of law of this State relating thereto.

Michael D. Cook, the appellant here, found guilty by a jury in the Circuit Court for Anne Arundel County of kidnapping, proscribed by Code, Art. 27, § 337, and robbery with a deadly weapon, Code, Art. 27 § 488, contends that the trial court erred in admitting as substantive evi ²⁴⁸ dence identity of him as the perpetrator of the crimes— a judicial identification by the victim and testimony by the victim that he identified the appellant at a pre-trial lineup. He claims that the lineup was illegal, not because of the absence of counsel, 3 but because the manner in which it was conducted denied him due process of law. He urges that due process of law was violated “because appellant was the only person in the lineup who wore the exact same clothing that was worn by the perpetrator of the crimes which were committed the night before the lineup was conducted.” At the trial, prior to the receipt of any evidence on the merits, the appellant moved to suppress any evidence as to identification of him by the victim. Out of the presence of the jury the court conducted a hearing on the issue, and, after evidence was adduced by the appellant and the State and argument of counsel made, ruled that the lineup was legal and that the challenged evidence as to identity was admissible. 4 Thus the question we must first decide is whether the court properly determined, on the totality of the circumstances surrounding the lineup, that it was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law.

If the determination of the court that the lineup was legal was proper, no further inquiry on the issue is required, for then the challenged evidence was admissible. The Circumstances Surrounding The Lineup The appellant limits his challenge to the lineup to the claim that he was placed therein wearing a yellow shirt, yellow jacket and brownish pants, the same type of clothing the perpetrator of the crimes was wearing at the time the crimes were committed. He does not contend that the ²⁴⁹ lineup was otherwise unfair and we believe from the evidence adduced at the hearing that it was not. About 8:00 P.M. on 31 May 1968 David Lee Scott was robbed at gunpoint at a filling station in Anne Arundel County.

He testified that he gave a description of the robber to Corporal Wilford H. Lawrence of the Maryland State Police describing the clothes the robber was wearing, his facial features, his build and the color of his hair and eyes. The description was put on the police teletype network. Corporal Harry T. Hitch of the New Castle County Police in Delaware received a teletype message that “Michael D. Cook, 6', 180 lbs., approximately 21 years, wearing a yellow shirt and jacket, reported to have been operating a ’67 Maroon Pontiac G.T.O. bearing Delaware registration (T believe that registration was 154086’)” was wanted “in reference to armed robbery and kidnapping.” He arrested the appellant on 1 June 1968 at his apartment in Claymont, Delaware. At the time of the arrest the appellant was in the bedroom attired in undershorts.

The officer requested that he get dressed. The appellant selected the clothes; he put on a yellow shirt and took a yellow jacket with him. The lineup was conducted in Wilmington, Delaware. Lawrence testified that he told the appellant he would be placed in a lineup with a group of men approximately his age, and his build and the victim would view the lineup.

The appellant was wearing “brownish-greenish” pants, a yellow shirt and a yellow waist length jacket. The officer said that he had received from the victim “a description similar to those clothes.” There were six other men in the lineup, all white males as was the appellant. They were respectively 6 feet tall, weight 145 pounds, age 18 years; 5 feet six inches tall, weight 135 pounds, age 18 years; 5 feet 9 inches tall, weight 140 pounds, age 21 years; 6 feet 1 inch tall, weight 160 pounds, age 25 years; 6 feet tall, weight 150 pounds, age 18 years; 6 feet tall, weight 165 pounds, age 19 years. ²⁵⁰ From these descriptions and from pictures of the lineup admitted in evidence we think they represented a fair approximation of the height, weight, age and general appearance of the appellant. Four of them wore short sleeve shirts.

Three wore long trousers. Three wore bermuda shorts. None had on a necktie. One wore a dark colored jacket similar in type to that of the appellant.

The appellant’s shirt had short sleeves and he had on long trousers and no necktie. The pictures of the lineup were not in color but Lawrence said one of the men in the lineup “was wearing the same type of green pants and a yellow shirt that I considered to be almost exactly like the one wore by Mr. Cook.” The victim viewed the lineup twice, (he thought it may have been three times) and each time made a positive identification of the appellant as the robber. The appellant was permitted to select his position in the lineup at each viewing and each time selected the first position. There was no suggestion made to the victim as to the man to be identified.

He was told by the police that they thought they had the man who robbed him but they were not sure. He was being taken to the lineup to see if the arrestee was the one as he fit the description given them by the victim. They did not tell him the name of the suspect. The victim, called by the appellant at the hearing, said that the clothes worn by the appellant, at the lineup focused his attention on the appellant.

But he denied that even “part of the reason [he] picked him out of the lineup” was “because of the clothes he was wearing * * * I can recognize him right off.” On cross-examination by the State the victim testified that the time of the robbery was “a little bit after eight,” that he could make out the features of the robber, that the robber did not wear a mask or any sort of cover on his head or face to disguise himself, that he was in the presence of the robber for about forty-five minutes, during which time he was looking at him, that the robber forced him, at gunpoint, to enter a car and drive away with him. “We turned right on 198 and went to Laurel, made a right on Bt. 1 and went to Savage and ²⁵¹ I don’t know what number on the highway, and made a right there at Savage.” During the ride he observed the robber. They left the car and the robber told him to take his belt off as he was going to tie him up. He was not tied up, however, and the robber told him to start walking into the woods. What happened next was not disclosed at the hearing but apparently the victim escaped and thereafter gave a description to the police.

The appellant testified that he was fully informed of his right to have an attorney present at the lineup and freely and voluntarily signed the waiver form. He said he was the only person in the lineup wearing a yellow shirt and yellow jacket. On cross-examination he said that when he was arrested he put on the clothes he had been wearing the night before of his own free will; he was not forced to do so. The jacket was by the front door of the apartment and he was not sure whether his wife got it for him or whether the arresting officers did so.

The trial judge applied the correct test in ruling on the conduct of the lineup. He found “under the totality of the circumstances in this case that this was a fair lineup.” In arriving at the holding he made findings of fact on the evidence before him. He found that it was not the clothing worn by the appellant in the lineup that enabled the victim to make the identification; that the victim had the opportunity to observe the appellant for forty-five minutes or more, not merely during the robbery itself but while in the car with him, and had “a good look at him over a long period of time” under favorable lighting conditions; that the appellant had not been forced to wear specific clothes at the lineup; that another man in the lineup had on a shirt and trousers similar to those worn by the appellant; that another man had on a jacket; that the victim remembered the robber’s face and it was due to the fact that he knew this man, he knew his face, he knew his size, he knew his mannerisms, that he was able to identify him. ²⁵² ' It appeared from the evidence adduced out of the presence of the jury at the hearing that the appellant had on the jacket each of the two times the victim viewed the lineup, the first viewing shortly following the second viewing. The same persons were in the lineup at each viewing.

At the trial on the merits, however, it appeared that the appellant did not have the jacket on at the first viewing but did have it on at the second viewing; The court found on this subsequent evidence that the police directed the appellant to put on the jacket for the second viewing. The court then reconsidered its ruling made at the close of the evidence at the hearing. But it found that a positive identification had been made at the first viewing, at which the appellant was not wearing the exact clothing he wore at the commission of the crimes, that the identification of the appellant was not affected- by the . second viewing at which the appellant had on the jacket, that, in the .circumstances, that the appellant had been directed to put on the jacket at the second viewing did not render the lineup unfair or the identification evidence inadmissible. We do not think that the court was clearly wrong in its factual findings on the evidence.

Md. Rule 1086. We have no difficulty in determining that the lineup as conducted at the first viewing was not-so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due'process of lato. In so determining we have considered the circumstances that the police were aware, prior to the lineup, that the victim described the robber as wearing a yellow shirt, a yellow jacket and brownish pants at the time of the commission of the crime, but we have also considered that the appellant was not forced to appear at that viewing-in clothing similar to that which the robber was described as wearing and in fact did not have on the yellow jacket. As the confrontation at the first lineup was legal it did not taint the judicial identification by the victim and both it and the victim’s testimony as to his identification at that viewing were admissible. ²⁵³ Our holding is in accord with the rationale of Baker v. State, 3 Md. App. 251 and Hernandez v. State, 7 Md. App. 355 .

In Baker the contention that the lineup was unfairly conducted was “seemingly based on the fact that [the accused] was dressed in the same clothing, except for a different hat,” when he was observed at the time of the commission of the crime. We noted that the question was not raised below, invoking Md. Rule 1085, but found that the lineup was not so conducted as to affront the accused’s constitutional rights as we were satisfied from the record that the identification by the witness was “not alone or primarily on the basis of the clothing he was wearing in the lineup.” 3 Md. App. at 254 . In Hernandez the accused contended that the pre-trial identification procedure was constitutionally tainted because he was the only person in the lineup wearing a blue plaid shirt, this item constituting the basis upon which the identification was made. We held that the fact that the accused appeared in the lineup in the shirt did not of itself violate due process of law, noting that the lineup occurred a few hours after the commission of the crime, that the accused was placed in the lineup wearing the clothing in which he was arrested, and that the record did not disclose that prior to the lineup the police had knowledge of the peculiar significance of the blue plaid shirt in the witness’