Cooper v. State

Orth, J., delivered the opinion of the Court. CHARLES THEODORE COOPER, indicted for robbery with a deadly weapon, 1 pleaded not guilty in the ¹⁰⁸ Circuit Court for Prince' George’s County, and for his trial put himself upon the country as was his constitutional right. Amendment VI to the Constitution of the United States; Art. 21, Declaration of Rights, Constitution of Maryland. 2 The jury returned a verdict of guilty as to count 9 charging robbery with a deadly weapon and a sentence of 15 years was imposed. 3 Cooper claims that the judgment must be reversed because the trial court erred: (1) in admitting evidence of extra-judicial identifications made by photographic procedures in the absence of counsel; (2) in receiving a photograph of him in evidence ; (3) in regard to the impeachment of him by the State; (4) in charging the jury by: (a) refusing to give a requested instruction on specific intent; (b) failing to give sua sponte an instruction with respect to the probative value of impeachment evidence. (1) The contention that the court erred in admitting, as a substantive part of the State’s case, evidence of extrajudicial identifications of Cooper as one of the robbers by photographic viewing procedures is bottomed on the absence of counsel representing Cooper when such identifications were made.

Cooper makes no claim that the viewing procedures were impermissibly suggestive. He ¹⁰⁹ concedes that by this Court’s opinions a viewing of photographs by a witness for the purpose of identification of an accused is not rendered illegal by absence of counsel representing him. “[T]here is no constitutional requirement that counsel be then present.” Smith and Samuels v. State, 6 Md. App. 59, 66 . We have consistently so held. Williams v. State, 11 Md. App. 607 ; Redding v. State, 10 Md. App. 601 ; Thompson v. State, 6 Md. App. 50 ; Barnes v. State, 5 Md. App. 144 .

He asks, however, that we re-examine our position in the light of United States v. Zeiler, 427 F. 2d 1305 (3rd Cir. 1970). We did so in Crenshaw v. State, 13 Md. App. 361 . We were not persuaded by Zeiler then and we are not persuaded by it now. We found in Crenshaw that the overwhelming weight of authority declines to extend the principles of United States v. Wade, 388 U. S. 218 and Gilbert v. California, 388 U. S. 263 to photographic identifications.

At 369-370. Crenshaw is dispositive of Cooper’s claim. We shall not depart from our prior opinions. We hold that the lower court did not err in admitting the challenged evidence.

(2) The photograph of Cooper which was identified by the witnesses as that of one of the robbers was received in evidence over objection. Cooper claims that its receipt was prejudicial error because tape had been applied to the back of it to mask the signature of one of the witnesses who signed it during the identification procedure. He urges that its introduction was unnecessary as several witnesses had identified him in court and “hence the photograph had no probative value” and that “it communicated to the jury the impression that appellant had been convicted of previous offenses or that he had an arrest record.” Cooper testified that he had no prior record and there was no suggestion that he did. Eight photographs were admitted in evidence, one of which was that of Cooper.

Each is about 4 inches by 3 inches, in color, of the upper body and head of black males. Each ¹¹⁰ has a paper pasted on the back on which is stamped or written that it was a State’s exhibit in Criminal Trial 10,317 in the Circuit Court for Prince George’s County, introduced on 15 December 1970 in a case in which Cooper was the defendant. The only thing different was the exhibit number, that, ranging from 3A to 3H. The questions posed by Cooper’s reasons for his claim of error were for determination in the sound discretion of the trial court.

As we said in Carroll v. State, 11 Md. App. 412 , 414: “ [Wjhether or not [photographs] are inflammatory, whether or not they illustrate and explain relevant matters, whether or not they are of any practical value, and whether or not they are improperly prejudicial are within the exercise of the court’s discretion.” See Austin v. State, 3 Md. App. 231, 236 . We find no abuse of discretion in the facts and circumstances here. (3) In Sanders v. State, 1 Md. App. 630 we reviewed the principles of law pertaining to the impeachment of witnesses by proof of contradictory statements. We said, at 640-641: “Provided a proper foundation has been laid, the credit of a witness may be impeached by showing he has made statements which contradict his testimony in respect to material facts (but not in respect to facts that are collateral, irrelevant or immaterial).

Davis v. State, 38 Md. 15 ; Joppy v. Hopkins, 231 Md. 52 , 56 and cases cited; Kantor v. Ash, 215 Md. 285, 290 ; Mahan v. State, 172 Md. 373, 380 . To lay the foundation for such evidence, the witness must be first interrogated as to the time, place and person to whom such contradictory statements were made. Brown v. State, 72 Md. 468 . As the Court said in Brown at page 475: ‘This is but fair and just to the witness, in order that he may be enabled to refresh ¹¹¹ his recollection in regard to such statements, and afforded the opportunity of making such explanation as he may deem necessary and proper.’ “See also O’Brien v. State, 126 Md. 270, 285 ; Baltimore Transit Co. v. Castranda, 194 Md. 421, 439 .

The witness, whether a party to the suit or not, may be cross-examined on such matters and facts, and the proper foundation having been laid, the proof of prior contradictory statements can be submitted for the consideration of the jury in estimating the credit to be given the testimony of the witness. Leister v. State, 136 Md. 518, 523 ; Moxley v. State, 205 Md. 507, 516-517 ; Campbell, etc. v. Patton, 227 Md. 125, 141 . If in laying the foundation, the witness denies making the designated statement or states that he does not remember whether he did or did not make it, impeaching testimony can be offered. Moxley v. State, supra, at page 516.

See also Myers v. State, 137 Md. 482, 490 , in which it was held that it was permissible to prove that on a prior occasion the witness had admitted certain facts, although when asked about them did not deny them but said he was unable to recall them.” In Franklin v. State, 6 Md. App. 572 , decided 23 April 1969, cert. den. Court of Appeals of Maryland, 255 Md. 741 , cert. den. Supreme Court of the United States, 399 U. S. 912 , we looked to the contradictory statement used to impeach. We enunciated the rule, at 579: “If the veracity of an accused testifying in his own behalf is to be attacked by a prior inconsistent or contradictory statement made while he was undergoing a custodial interrogation, the State must affirmatively show that the statement was made after the accused had been ¹¹² fully advised of all of his rights and had effectively waived them in accordance with the standards prescribed by Miranda [v. Arizona, 384 U. S. 436 ].” Although six federal Courts of Appeals and appellate courts of thirteen other states reached the same result as did we in Franklin , on 24 February 1971 in Viven Harris v. New York, 91 S. Ct. 643 , a majority of the Supreme Court found that Miranda did not say what it appeared to say.

The comments in Miranda relied on by us in Franklin, 6 Md. App. at 578 , were recognized in Harris as able to be read “as indicating a bar to use of an uncounseled statement for any purpose”, but were disposed of simply by the statement that “discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling.” 91 S. Ct. at 645 . Basing its decision on Walder v. United States, 347 U. S. 62 (1954), the holding of the majority was that statements inadmissible against a defendant in the prosecution’s case in chief because of lack of the procedural safeguards required by Miranda may, if its trustworthiness satisfies legal standards, be used for impeachment purposes to attack the credibility of the defendant’s trial testimony. The rationale of the decision is found in the statements “[a]ssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief,” 91 S. Ct. at 645 , and “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances,” id., at 646 . Cooper claims that the court permitted the State to impeach him by prior inconsistent statements absent an affirmative showing that the procedural safeguards of Miranda were met as prescribed by Franklin .

He argues that at the time of his trial on 15 December 1970 Franklin was the law of this State, that he had a right to rely ¹¹³ on it, that he may have refused to testify in his own defense had he known the State could attack his credibility through prior inconsistent statements, and that in such circumstances Harris should not be given retroactive application as “injustice and inequity would result.” He concludes that “the introduction into evidence of the prior inconsistent statement was prejudicial error requiring a new trial. Our inquiry turns first to the factual premise of the contention. At the trial the victim and two eyewitnesses made positive judicial identifications of Cooper as one of three men who had committed the robbery and the State adduced that each had made an extra-judicial identification of Cooper from a viewing of photographs. A police officer arrived as the felons were leaving the store immediately after committing the robbery.

Cooper was apprehended on the spot by the officer; Morgan was captured by an eyewitness after a short chase; the third man escaped. Cooper’s defense was that he acted under duress. Testifying on his own behalf he admitted that on the evening of the robbery he was with Slim, the man who escaped, and Morgan, in a car driven by Slim. As they approached High’s store Morgan and Slim discussed committing a robbery. — .“Morgan brought it up.” As they were pulling up in the parking lot, Morgan said to Cooper, “Well, since he’s there he might as well go ahead and do it anyway.” Cooper said he “didn’t want to have no part in it.” As they got out of the car Morgan took a gun from under the seat.

Cooper identified a gun the State had introduced as the robbery weapon as the gun Morgan had. All three walked “straight towards the store.” Cooper stopped in front of the store and said to Slim that he did not want to go in. Morgan said, “Come on over to the telephone booth” and all three did so. Morgan “told me I had better go ahead and do it because he didn’t care,” meaning he did not care what happened because he was on drugs and could pull the trigger there and “that would be it right there.” The gun at the time was inside Morgan’s sweater and pants.

Cooper did not ¹¹⁴ leave because he was afraid in view of what Morgan had said. Morgan and Slim went in the store and Cooper followed, “I was about two seconds behind him.” Cooper stood next to the witness. A woman screamed because Morgan had grabbed $2 out of her hand. Morgan told her, “Shut up or I’ll blow your head off.” At Morgan’s direction Cooper took a man’s wallet and Mrs. Dixon’s purse, and going through them extracted $20 from the purse.

Slim was at the counter “getting money.” Morgan was in the middle with his weapon “on just about everybody, * * * waiving it.” Slim left, then Cooper, then Morgan. The police pulled up and arrested Cooper. He denied that he wanted to participate in the robbery. During the presentation by the State of its case, after it had adduced testimony from the victim, two eyewitnesses and three police officers, it told the court at the bench that it was about “to go into” the question of a confession by Cooper to the police.

The court was informed that Cooper was read his rights,