Dorsey v. State

Orth, J., delivered the opinion of the Court. Clinton F. Dorsey (appellant) was found guilty of robbery by a jury in the Circuit Court for Harford County. We do not consider those questions which he presents which go to the denial of a motion for judgment of acquittal made at the close of the evidence offered by the State. We point out again that the rule in this jurisdic ⁸³ tion is that he withdrew the motion by thereafter offering evidence.

Maryland Rule 755 b. The remaining questions involve alleged error by the lower court in denying: I a motion to restrict the testimony of a witness; II a motion for judgment of acquittal made at the close of all the evidence; and III a requested instruction. I Appellant sought to suppress an anticipated judicial identification of him as one of the robbers by Mrs. Robert Fletcher, wife of the robbery victim. As we construe the record, and we find verification for our construction in appellant’s brief, a motion to that effect was presented to the court in writing when Mrs. Fletcher was called to the stand by the State.

The only ground stated in the motion, and the only ground for the suppression of the anticipated judicial identification by the witness as disclosed by the record, was that Mrs. Fletcher had been unable to identify appellant at a pretrial lineup in which he appeared. 1 That the prospective identifying witness had not made an identification of appellant at a pretrial confrontation would not render a judicial identification of him by her inadmissible. Barnes v. State, 5 Md. App. 144 . It would go, not to the admissibility of the judicial identification, but to its weight and the credibility of the identifying witness. These were matters for the jury.

McCoy v. State, 8 Md. App. 127 ; Felder v. State, 6 Md. App. 212 ; Carroll v. State, 3 Md. App. 50 . Appellant was en ⁸⁴ titled to bring before the jury the fact of the previous inability of the witness to identify appellant and he did so in his cross-examination of the witness. Appellant made no objection at trial to the procedure followed with regard to the judicial identification. We note that had he made request, he could have been permitted, in the court’s discretion, to be seated among the spectators in the courtroom, rather than at the trial table, in such manner that he would not stand out 2 but he made no such request.

After the motion was denied and the point was reached in the examination of Mrs. Fletcher where she was called upon to make an identification, appellant objected. Although the question as presented by appellant goes only to the denial of the motion, he suggests in argument in his brief that the court erred in overruling the objection. He stated no grounds for the objection and was not required to do so absent a request by the court, Rules 522 d 1 and 725 f. But there was no more before the court on the issue at that point than was before it at the time the motion was denied.

The ground stated in the motion no more supported the objection to the actual admission of the judicial identification than it supported the motion to suppress it. We find no error in the denial of the motion to suppress the judicial identification of appellant by Mrs. Fletcher or in the overruling of the objection to its admission. Appellant also contends in the argument in his brief that the court erred in not following the procedure set out in Smith and Samuels v. State, 6 Md. App. 59 and discussed in Miller v. State, 7 Md. App. 344 . 3 But such pro ⁸⁵ cedure is invoked when a judicial identification is challenged on the ground that it may be tainted by an illegal pretrial confrontation or viewing of photographs at which an extra judicial identification was made by the prospective identifying witness. This was not the ground before the court when it ruled.

In fact the legality vel non of the lineup here was not material because the witness made no identification thereat, and thus that pretrial confrontation could not taint the in-court identification in any event. And there was nothing before the court when it ruled to indicate that there had been an illegal viewing of photographs by the witness. The procedure is also invoked when proper challenge is made to an identification made at a pretrial confrontation or viewing of photographs and offered by the State as independent evidence of identification or as corroborative of a judicial identification. Here the State adduced, through the testimony of William P. Van Horn, Deputy Sheriff of Harford County, that Mrs. Fletcher had identified appellant as one of the robbers at a pretrial viewing of photographs.

Appellant made timely objection to this testimony, but he did so only on the ground that the evidence sought was hearsay. The court overruled the objection. On the objection as made there was no need to receive evidence on the matter out of the presence of the jury. The evidence sought by the State was properly admissible.

The rule is that evidence of an identification at a pretrial confrontation or viewing of photographs is admissible as substantive, independent evidence of identification or as corroborative of a judicial identification, not only when received through the testimony of the out of court declarant, but also when received through the testimony of a police officer or some third party observing the extrajudicial identification, when the out of court declarant is present at the trial and subject to cross-examination. Smith and Samuels v. State, supra, at 63-64. Mrs. Fletcher was present at the trial and subject to cross-examination. So on the ground advanced by appellant the extra judicial identification challenged was not ⁸⁶ inadmissible and the court did not err in overruling the objection.

Appellant now suggests that the photographic viewing procedure was illegal. But this issue was not tried and decided below and is not properly before us. Rule 1085. We point out that if the lower court determines that a pretrial confrontation or photographic viewing procedure was illegal, then the exclusionary rules of United States v. Wade, 388 U. S. 218 and Gilbert v. State of California, 388 U. S. 263 govern the admission of a judicial identification and an extra judicial identification. 4 A photographic viewing procedure is illegal if, on the totality of the circumstances surrounding it, it was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Simmons v. United States, 390 U. S. 377, 384 . It is not rendered illegal by the absence of counsel for the accused. Barnes v. State, supra. If the court determines that the photographic viewing procedure was illegal, evidence of identification at such viewing is per se to be excluded, and if admitted, it is prejudicial error, unless in any event its introduction was harmless beyond a reasonable doubt.

Smith and Samuels v. State, supra, at 65. We note that here the Deputy Sheriff conducting the photographic viewing procedure described its conduct in detail. We think that on the evidence before the lower court it could have properly found that the procedure resulting in the identification of appellant by Mrs. Fletcher from photographs shown her was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and that it was legal. Appellant claims that it was illegal because in the book of photographs shown Mrs. Fletcher, photographs of appellant appeared alone on one of the pages.

The book was admitted in evidence. It contained photographs of eleven persons, all negroes, each in full face and profile. All the ⁸⁷ photographs were of the same type and that of appellant was in no way dissimilar to the others. Nor were his physical characteristics in any way remarkable so as to stand out from the other persons depicted.

It is correct that