Davis v. State

Carter, J., delivered the opinion of the Court. The appellant Davis was convicted in the Criminal Court of Baltimore of robbery with a dangerous and deadly weapon and sentenced to twelve years imprisonment by Judge Anselm Sodaro, sitting non-jury. He appealed from this judgment. The appellant contends that his identification at the pretrial confrontation was constitutionally invalid because: 1) of the absence of counsel in violation of his rights under the Sixth Amendment and 2) of the fact that identification was made under circumstances which denied him due process of law under the Fourteenth Amendment.

FACTS The evidence of the State consisted of the testimony of the victim Damon Edwards and two Baltimore City police officers. The defense presented the brief testimony of the appellant and his younger brother Ronald. Edwards testified that while he was performing the duties of his employment at a gasoline service station slightly after 1:00 a.m. on August 31, 1970, his co-worker called his attention to a group of young boys gathered on a corner about fifty feet from the station. The co-worker suspected that the group was planning to hold up the station.

After remaining on the corner about ten minutes, two of the boys in the group walked to the service station. The appellant seated himself in a chair outside the office door and his companion sat on the side of the walk outside the office. The boys remained at the station for about five minutes before the robbery. During a part ³⁹⁶ of this time the victim was standing in the office doorway about seven to ten feet from the appellant and face to face with him.

The area was well illuminated. While the appellant and his companion were seated, a third boy arrived at the office and requested tha victim to change a dollar. Immediately after the victim accommodated the third boy, he drew a gun on the victim and demanded all the money he had on his person. The victim was robbed of $50; he was ordered to place the change on his person in a towel held by the appellant.

After the money was taken, all three of the boys departed. One was wearing red pants and a red T-shirt with short sleeves and the other two were wearing white T-shirts and blue dungarees. Immediately after the incident, the victim unsuccessfully attempted to telephone the police. About ten to fifteen minutes later Police Officer Urey drove up to the station.

At this time the victim reported the incident and described the clothing worn by the boys who had robbed him. The officer promptly put the report on police radio at about 1:50 a.m. About twenty minutes after the robbery, the police returned to the station with a single person inside a police cruiser. The officers in charge of the cruiser then asked the victim to look inside the cruiser through the window to see if the person inside was one of the boys who had 'robbed him.

The victim did so and identified the appellant as one of the participants in the robbery. The appellant was then wearing the same clothing which the victim had previously described to the police as-having been worn by one of the participants at the time of the robbery. Officer Law testified he had received the robbery report about 1:50 a.m. and immediately thereafter came upon two Negro males who fitted the radio description walking down the street about five blocks from the scene of the robbery. When his patrol car stopped near them, the one in blue ran and the one in red increased his gait.

He arrested the one in red who had a towel draped over his shoulder and placed him in a patrol cruiser. The other ³⁹⁷ officers then took him to the service station where the crime had been committed. The appellant testified that on the evening of August 31st, he was wearing a long sleeved, light maroon-colored shirt and sandy brown-colored pants. The appellant’s younger brother Ronald testified that he had been with the appellant between 11:30 and 12:00 on the evening of August 31st and that the appellant was then wearing a red undershirt and brown dungarees.

I The milestone cases of United States v. Wade, 388 U. S. 218 and Gilbert v. California, 388 U. S. 263 (1967) held that a pretrial post-indictment lineup arranged by the police for the purpose of an out-of-court confrontation between the accused and eye-witnesses was a critical stage of the prosecution at which the accused was entitled to the presence of counsel under the Sixth Amendment. In so ruling in Wade , the Supreme Court said at p. 237: “* * * No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply [Wade and Gilbert], counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontation. * * *” In holding that the rationale of Wade did not require the presence of counsel at all pretrial confrontations, this Court speaking through Chief Judge Murphy in Tyler v. State, 5 Md. App. 265 , said at 272: “We think it evident that Wade does not hold that all pretrial confrontations between the ac ³⁹⁸ cused and the victim or other identifying witnesses are thereby deemed to be critical stages of the criminal prosecution.

In our opinion, Wade indicates that only those pretrial confrontations that are not subject to fair and meaningful objective review later at the trial fall within its strictures, so that where the circumstances of the confrontation can be fully developed at the trial by cross-examination of the State’s witnesses, or by presentation of witnesses on behalf of the defendant, the right to counsel does not attach. * * *” In Billinger v. State, 9 Md. App. 628 (1970) we held that the ruling in Wade requiring the presence of counsel at pretrial identifications did not apply to a prompt confrontation which took place within 30 minutes after the crime had been committed where there were no special circumstances of unfairness involved. In that case the identification by the victim took place at a hospital where the police had taken both the suspect and the victim. The similarity of the suspect’s appearance to that previously given by the victim was called to the victim’s attention by the police. The victim then identified the suspect.

In holding the identification legal, this Court speaking through Judge Orth quoted extensively from Russell v. United States, 408 F. 2d 206 (D.C. Cir. July 1967) which concerned an identification of a suspect by an eyewitness' at the scene of the crime within minutes after the occurrence. In Russell the Circuit Court of Appeals held the rationale in Wade did not require the presence of counsel at the pretrial identification in that case. In quoting from the opinion in Russell , we set forth in Billinger at page 635: “Such delay [incident to the presence of counsel] may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement. * * * ³⁹⁹ Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will ‘if anything promote fairness, by assuring reliability * * *.’ This probability, together with the desirability of expeditious release of innocent suspects, presents ‘substantial countervailing policy