Dobson v. State

Gilbert, J., delivered the opinion of the Court. Sherman Woodrow Dobson, appellant, was indicted by the Grand Jury of Baltimore City for a multitude of criminal offenses including the murder of James A. “Turk” Scott. Dobson was convicted, however, in the Criminal Court of Baltimore by a jury of only kidnapping, robbery with a deadly weapon, receiving stolen goods and the use of a handgun in the commission of a crime of violence. Dobson received sentences aggregating fifteen years.

Lamenting his ⁶⁴⁶ convictions, Dobson has appealed to this Court where he asks: “1. Whether [his] convictions should be reversed since the pre-trial identification procedures were so impermissibly suggestive as to make irreparable misidentificatión a near certainty and deny [him] due process of law? 2. Whether the trial judge abused his discretion by allowing the rebuttal testimony of Carl Sylvester Washington?” Prior to trial Dobson, through his counsel, filed a motion to suppress an in-court identification of the traverser on the ground that the identification was predicated upon an impermissibly suggestive photographic identification procedure. The motion was directed at the identification that the State expected to be made at trial by Stephen Allen Brown, an associate minister of the Manor Bible Baptist Church, manager of the “Grace Memorial Hour”, and part-time cab driver.

On June 18, 1972, Brown, while operating his taxicab, picked up two passengers at Liberty Heights Ave. and Garrison Blvd. When the passengers entered the cab they asked to be taken to Wabash and Edgewood Avenue. When they had arrived at that destination one of the passengers, later identified as Dobson, put a gun into Brown’s side. The second passenger, who was seated on the rear seat of the cab, placed a gun to the back of Brown’s head and the duo of holdup men were joined by a third person.

Brown was removed from the driver’s seat and placed on the rear seat of the cab. Dobson drove the cab to a wooded area near the Lemmel Junior High School. Once there the trio of culprits accompanied Brown into the wooded area. Brown was handcuffed to a tree.

Dobson remained with Brown and the other two exited the area. Brown remained in Dobson’s company for a period of two and one-half to three hours during which time he had the opportunity to observe Dobson, although Brown stated that he avoided staring directly at Dobson for fear that if he did so he might be ⁶⁴⁷ killed. According to Brown the wooded area was near a railroad track and there was a light about fifty yards away. He knew that his assailant was wearing glasses, was brown skinned, and he was also able to determine that his abductor had a “funny-shaped nose.” When the other two men returned to the wooded area Brown observed that one of them had a submachine gun.

Brown was released by the trio, found his way out of the woods and ultimately called the police. The description that he furnished the police was vague. Shortly after the robbery he was shown some photographs from which he was unable to pick any of his abductors. Brown candidly admitted that he could not recognize two of the three kidnappers.

On July 14, 1973 Brown was shown a series of fifteen additional photographs from which he picked the photograph of the appellant, Sherman Dobson. Brown stated that that photograph depicted the person who put the gun in his side and who spent the two and one-half to three hours with him in the wooded area. Of the fifteen photographs submitted to Brown, only one individual is shown to be wearing glasses and that is the appellant. Dobson’s lawyers, for three days of pretrial hearing, 1 valiantly and vigorously sought to discredit Brown and to demonstrate that the photographic identification was so impermissibly suggestive that it should be excluded.

At the conclusion of the hearing the trial judge stated that during the course of the pretrial hearing he had borne in mind the test enunciated in Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968), and Smith v. State, 6 Md. App. 59 , 250 A. 2d 285 (1969), cert, denied, 397 U. S. 1057 , 90 S. Ct. 1402 , 25 L.Ed.2d 674 (1970), as to whether “the confrontation procedures [were] so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” The judge stated that he was “also mindful of the fact that [he] must take into consideration the totality of the confrontation and . . . the totality of the circumstances [are] significant.” The trial judge observed that Mr. Brown did spend considerable time ⁶⁴⁸ in the woods with Dobson and that the judge had regarded Brown’s “demeanor and manner very carefully.” He interpreted Brown’s testimony as being “very honest” and that Brown was a “sincere individual” who really did not want to get involved. The judge went on to state: “[Brown] said, 1 paid very little attention to the first man, and the second man I couldn’t see at all,’ which gives me some belief that this was a very truthful witness and that he was not trying to either get in the limelight or to falsely accuse anyone. But he said, T saw the number one man as he got in. He wore glasses, he had a funny-shaped nose, and I got a glance at him, and I estimate his weight,’ ... he said ‘a little heavier than me, and I run one hundred and sixty-five, so I would say he is around one hundred and seventy, and he was in his early twenties,’ and that convinces me he got a rather substantial look at him, and a little more than the defense argued.

He also said later on he was brown-skinned. Then he brought out later that his shoes were tan, brown pants, and I gather from that that a lot of evidence had to be drawn out of this witness. Over and apart from this it is uncontradicted that [Brown] was in the woods with [Dobson] some two to three hours; he said they talked, talked about prayer. [Brown] wasn’t comfortable so [Dobson] went and got something to make him comfortable, and what have you. I also note . . . that [Brown] said at one time that looking back, he was able to get some description.

He said, now that ‘I’ve thought about it awhile and looking back and reflecting my thoughts of the past occasion,’ [Brown] gave his testimony. He said he didn’t want to jeopardize his life by being able to identify anybody, which I interpret to mean he wasn’t staring and looking for features and sayfing to himself], ‘now, when I get out of here, I’m going to really nail this guy.’ I think he was saying, T didn’t ⁶⁴⁹ stare at him to get the guy so that I’d be able to identify him later on.’ For that reason, I don’t interpret that to mean that he got no look at him, because he was in the woods all this time, and I’ve considered all this talk that he mentioned, which is part of the record, that he did get a look at him.” Dobson’s first attack upon the judgment of the Criminal Court is focused on the pretrial motion to suppress the in-court identification. Consequently, we are limited in our review to the evidence produced at such a hearing, because it was on that particular evidence, and that evidence alone, that the trial judge made his determination to deny the pretrial motion to suppress the identification. 2 Most attacks in this Court upon convictions grounded on possibly tainted photographic identification have been unsuccessful. See Sallie v. State, 24 Md. App. 468 , 332 A. 2d 316 (1975); Jordan v. State, 19 Md. App. 283 , 310 A. 2d 575 (1973); Cousins v. State, 18 Md. App. 552 , 308 A. 2d 692 (1973), cert, denied, 270 Md. 738 (1973); Conway v. State, 15 Md. App. 198 , 289 A. 2d 862 (1972), cert, denied, 266 Md. 735 (1972), cert, denied, 413 U. S. 920 , 93 S. Ct. 3070 , 37 L.Ed.2d 1042 (1973); Crenshaw v. State, 13 Md. App. 361 , 283 A. 2d 423 (1971), cert, denied, 264 Md. 746 (1972); Jackson v. State, 13 Md. App. 31 , 280 A. 2d 914 (1971); Jones v. State, 10 Md. App. 420 , 270 A. 2d 827 (1970), cert, denied, 260 Md. 721 (1971); Dorsey v. State, 9 Md. App. 80 , 262 A. 2d 591 (1970), cert, denied, 258 Md. 727 (1970); Mouzon v. State, 9 Md. App. 57 , 262 A. 2d 588 (1970), cert, denied, 258 Md. 729 (1970); Joyner v. State, 7 Md. App. 692 , 257 A. 2d 444 (1969), cert, denied, 257 Md. 734 (1970); Bailey v. State, 6 Md. App. 496 , 252 A. 2d 85 (1969), cert, denied, 255 Md. 739 (1969).

But see Perkins v. State, 11 Md. App. 527 , 275 A. 2d 517 (1971) wherein the Smith v. State procedures were not followed. Dobson asserts, however, that none of the cases that we ⁶⁵⁰ have heretofore considered have been so egregious as the case presently before us. Photographic identification procedures are usually employed by the police in three separate, but not necessarily exclusive, phases of a case: the investigation phase, the in-custody phase and the charge-on-defendant phase. N. Sobel, Eye Witness Identification: Legal and Practical Problems § 45 (1972).

Courts, as a general rule, have upheld the constitutionality of photographic identification at the investigation stage. N. Sobel, supra § 45.01. See e.g. United States v. Benson, 495 F. 2d 475 (5th Cir. 1974); United States v. Kirby, 427 F. 2d 610 (D.C. Cir. 1970); United States v. Hamilton, 420 F. 2d 1292 (D.C. Cir. 1969); United States v. Butler, 405 F. 2d 395 (4th Cir. 1968), cert, denied, 396 U. S. 853 , 90 S. Ct. 114 , 24 L.Ed.2d 102 (1969); United States v. Strouse, 375 F. Supp. 672 (D.C. Pa. 1973); People v. Anderson, 389 Mich. 155 , 205 N.W.2d 461 (1973); State v. Nettles, 81 Wash. 2d 205 , 500 P. 2d 752 (1972); State v. Royster, 57 N. J. 472, 273 A. 2d 574 (1971), cert, denied, 404 U. S. 910 , 92 S. Ct. 235 , 30 L.Ed.2d 182 (1971).

In the instant case it is the use of photographs in the investigation phase that is assailed by the appellant. 3 Dobson does not assert that it is impermissible to use photographs, but rather that the method used here was constitutionally impermissible. The Supreme Court has considered the question of photographic identification in only two cases, viz., Simmons v. United States, supra, and United States v. Ash, 413 U. S. 300 , 93 S. Ct. 2568 , 37 L.Ed.2d 619 (1973), with the latter turning on a refusal by the Court to extend the Sixth Amendment right to counsel to the photographic identification process. Ash did not discuss the due process issue of whether the photographs employed in that particular case were impermissibly suggestive. 4 The Simmons Court sanctioned the use of the ⁶⁵¹ photographic identification technique. Speaking through the late Mr. Justice Harlan, the Court declared: “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 technique 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 following a pretrial identification by photograph will be set aside on the ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See also Conway v. State, supra, and Crenshaw v. State, supra. This Court in Smith v. State, supra, stated in 6 Md. App. at 67: “Thus when it is shown that a pretrial identification by photograph, on the totality of the circumstances surrounding it, was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of such identification or an in-court identification, as substantive independent evidence of identity, is determined, as when a pretrial confrontation is shown to be illegal by denial of due process of law, pursuant to the exclusionary rules of Wade [United States v., 388 U. S. 218 , 87 S. Ct. ⁶⁵² 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)].

We note that the rules of this State relating to identification evidence existing prior to Wade and Gilbert are still effective as qualified by the exclusionary rules enunciated in these opinions.” (Footnote omitted). In Simmons, supra, the Court held “that each case must be considered on its own facts.” We shall now examine some of the facts that have been considered by the courts and held not to be impermissibly suggestive: Only one photograph depicted a man with gray hair and the suspect had gray hair, Saville v. United States, 400 F. 2d 397 (1st Cir. 1968), cert, denied, 395 U. S. 980 , 89 S. Ct. 2137 , 23 L.Ed.2d 768 (1969); a witness was shown three pictures, one each day, until identification was made on the third day, McClain v. State, 247 Ark. 33 , 444 S.W.2d 99 (1969); a photograph of an accused appeared by itself on a page while the other photographs were mounted two to a page, Dorsey v. State, supra; two double pictures of defendant were shown while only one set of pictures of other individuals was included in the photographic array, Commonwealth v. Geraway, 355 Mass. 433 , 245 N.E.2d 423 (1969), cert, denied, 396 U. S. 911 , 90 S. Ct. 226 , 24 L.Ed.2d 186 (1969); two out of thirteen photographs were of the defendant, and one of the two was unlike any other picture in that it depicted the defendant in a uniform, United States v. Butler, supra; only the defendant’s photograph was used, Clemons v. United States, 408 F. 2d 1230 (D.C. Cir. 1968), cert, denied, 394 U. S. 964 , 89 S. Ct. 1318 , 22 L.Ed.2d 567 (1969) and State v. Matlack, 49 N. J. 491, 231 A. 2d 369 (1967), cert, denied, 389 U. S. 1009 , 88 S. Ct. 572 , 19 L.Ed.2d 606 (1967); two photographs were shown, and the witness was asked to pick out the person who committed the crime, State v. Fullen, 1 Ariz. App. 466 , 404 P. 2d 732 (1965). Simmons, supra, uses the term “impermissibly suggestive” while the term “unnecessarily suggestive” is used by the Court in Gilbert, Wade and Stovall v. Denno, 388 U. S. 293 , 87 S. Ct. 1967 , 18 L.Ed.2d 1199 (1967).

Neil v. ⁶⁵³ Biggers, 409 U. S. 188 , 93 S. Ct. 375 , 34 L.Ed.2d 401 (1972) uses both terms. As a result of the use of “unnecessarily suggestive” in the confrontation cases and “impermissibly suggestive” in the only photographic identification case, some question has arisen as to whether the two terms have separate and distinct meanings dependent upon the method of identification. The question is partially answered by the Court’s use interchangeably of the two terms in Biggers. It is further answered in Foster v. State, 272 Md. 273 , 323 A. 2d 419 (1974) where Judge O’Donnell indicated at 304, n. 15, that “[t]he terms ‘unnecessarily suggestive’ as used in Stovall . . . and ‘impermissibly suggestive’ used in Simmons . . . represent different articulations of the same requirement and should be so applied”; accord, Stanley v. Cox, 486 F. 2d 48, 50, n. 5 (4th Cir. 1973).

Cf. United States ex rel. Phipps v. Follette, 428 F. 2d 912 (2d Cir. 1970), cert, denied, 400 U. S. 908 , 91 S. Ct. 151 , 27 L.Ed.2d 146 (1970). See also 73 Colum.

L. Rev. 1168 , 1171, n. 29 (1973) which states “[t]he tests would appear to have the same meaning — lack of compelling circumstances.” The Supreme Court has fashioned a test upon which lower courts are required to rely in determining whether, under the totality of the circumstances, a photographic identification is “impermissibly suggestive.” Mr. Justice Powell in Neil v. Biggers, supra, for the majority of the Court, 5 enunciated five factors to be considered “in evaluating the likelihood of misidentification” under the “totality of the circumstances” as: “[ 1 ] the opportunity of the witness to view the criminal at the time of the crime, [ 2 ] the witness’ degree of attention [to the offender], [ 3 ] the accuracy of the witness’ prior description of the criminal, ⁶⁵⁴ [ 4 ] the level of certainty demonstrated by the witness at the confrontation, [ 5 ] the length of time between the crime and the confrontation.” See also Foster v. State, supra; Witcher v. State, 17 Md. App. 426 , 302 A. 2d 701 (1973). The United States Court of Appeals for the Fourth Circuit, in Smith v. Coiner, 473 F. 2d 877 (4th Cir. 1973) held that Neil v. Biggers, supra, applied only to pre-Stovall cases. 6 We do not assign to Neil such a restricted sphere of influence. We note that the Court of Appeals of Maryland in Foster, supra, applied the Biggers factors, notwithstanding that the crime in Foster occurred in 1973, six years after Stovall was decided. It is patent, then, that insofar as this State is concerned, the five factors of Biggers are regarded as having a post -Stovall application.

This Court has also, heretofore, given a post-Stovall application to Biggers. See Witcher v. State, supra. Cf. 73 Colum. L. Rev. 1168 , 1181