Foster & Forster v. State

O’Donnell, J., delivered the opinion of the Court. At about 8:35 P.M., February 1, 1973, Herbert D. Siegel and his wife got out of their automobile in the driveway of their home at 3318 Old Post Drive. Siegel remained to lock the car, his wife advanced toward the entrance of the home; as Siegel walked around the car he heard the footsteps of a person running and a voice which yelled, “Hold it, hold it, hold it.” Turning, he saw a “tall, slender-built young man, whose features were ‘muffled’ — as if covered by a stocking — pointing a rifle or shotgun from a distance of ten or twelve feet.” A second man, within four or five feet of him, from across the hood of the car commanded him to turn over his wallet; when the wallet was placed on the hood of the car the unarmed assailant directed the removal of any money from the wallet and Siegel, across the hood of the car, handed-over approximately $35.00. The evening was fairly misty and foggy; although there were no street lights on Old Post Drive, two outside post-lights were burning on the Siegel property, as were the lights on his neighbors’ properties.

The assailant to whom he had given the money and whose features he saw was “of medium build, approximately 5'9" to 5'10" in height, with long, dark hair and a black moustache.” After being assured by Siegel that he had no more money, the robbers fled afoot westward toward the adjacent ²⁷⁶ Stevenson Village Apartments. Mrs. Siegel promptly phoned the police and Siegel gave a description of his assailants over the phone. Within five minutes Siegel repeated the description to a county police officer who arrived at the home. Officer Hojnowski, cruising in a police car in the vicinity of Old Post Road, at 8:39 P.M. heard over the police radio a report of the robbery and a description of two white males running afoot toward the Stevenson Village Apartments.

As he drove toward the apartments he noticed a 1969 Chevrolet containing two front-seat occupants driving westward on Old Post Road. Reversing the course of his police car and activating his signal he stopped the automobile on Old Post Road approximately 150 feet eastward of Stevenson Road. Alighting from the vehicle as the officer approached, the operator, unsolicitedly, asked if there was “any trouble”, stating that he “was lost.” In addition to a white female seated on the right front seat the officer observed another white male “slouched down” — practically on the rear floor of the vehicle. The appellant Forster identified himself as the operator of the vehicle which was owned by the female passenger.

The man “slouched” on the rear floor [Foster] did not then identify himself. Cpl. Litchfield, having heard over his police radio that the vehicle had been stopped by Officer Hojnowski, went to the Siegel residence, advised Siegel that the police had stopped a “suspect vehicle” and requested that Siegel accompany him to where the vehicle was stopped — about one block westward from the Siegel home. En route there was no conversation between Siegel and the corporal concerning the identity of the assailants — Siegel spoke about his combat experiences as a naval officer, but that he had never before had a gun pointed directly at him.

When they arrived at the stopped vehicle there were four police cars parked in the vicinity. Siegel testified that when he was requested to accompany the police to the scene of the stopped vehicle he was told that they had “picked up two people that may fit the description [which he gave] and would he come to try to identify them”; ²⁷⁷ that when he confronted the persons at the stopped automobile — within approximately ten minutes of the robbery — he could have given a positive identification at that time of the man to whom he had handed the money — had he been there so asked by the police, but the police were concerned “about securing the rights of the alleged suspects.” He further testified that “the dark haired one to whom he had handed the money was there, standing, looking right at him.” Siegel also testified that the other man, the taller man, was “slouching on the fender of the [stopped] car.” It was only after he arrived at the Garrison Police Station that the officers took a report from him concerning his identification. He made an in-court identification of the appellant Foster, sans moustache. He could not positively identify the appellant Forster, by his features, but in height stated that he was similar to the assailant who held the gun on him.

After Siegel had testified, counsel for the appellants moved to strike his testimony as to the in-court identification “under the case of Stovall v. Denno” and the motion was denied. Although Cpl. Litchfield testified that at the confrontation scene Siegel stated that the clothing worn by Foster fit the clothing worn by the subject who held him up, and that the physical features of the subjects were the same, he did not there make a positive identification, Officer Nash testified that Siegel stated at the scene that Foster definitely looked like the man to whom he had handed the money and, from the physical build of Foster, he was the one who had held the gun. After the appellants were placed under arrest a search of the trunk of the vehicle with the consent of the owner-passenger revealed a .12 gauge shotgun and a box of shotgun shells.

From their convictions of robbery with a dangerous and deadly weapon following a non-jury trial in the Circuit Court for Baltimore County (Raine, J.) and the sentences imposed thereon, each appellant appealed. In an unreported per curiam, Foster and Forster v. State [No. 188, Sept. ²⁷⁸ Term, 1973, decided November 12, 1973], the Court of Special Appeals affirmed their convictions and on the authority of that court’s holdings in Billinger v. State, 9 Md. App. 628 , 267 A. 2d 275 , cert. denied, 259 Md. 729 (1970), rejected the contention made that the identification procedure employed by the police was improper. We granted a writ of certiorari limited to the issue of whether the identification procedure followed by the police at the time the appellants were apprehended was proper. We affirm.

In Basoff v. State, 208 Md. 643 , 119 A. 2d 917 , (1956), our predecessors established as an evidentiary test for the admissibility of an extra-judicial identification, circumstances “precluding suspicion of unfairness or unreliability.” See also Johnson v. State, 237 Md. 283, 289 , 206 A. 2d 138 (1965); Proctor v. State, 223 Md. 394 , 164 A. 2d 708 (1960); Judy v. State, 218 Md. 168 , 146 A. 2d 29 (1958). See also Annot., 71 A.L.R.2d 449 (1960). In 1967 the United States Supreme Court in a trilogy of opinions in United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 , Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L.Ed.2d 1178 , and Stovall v. Denno, 388 U. S. 293 , 87 S. Ct. 1967 , 18 L.Ed.2d 1199 , brought the test of the admissibility of such extra-judicial identifications within the protection of the sixth and fourteenth amendments to the United States Constitution. In both Wade and Gilbert that Court held that a post-indictment line-up was a “critical stage” of the proceedings which, when conducted without notice to, or the presence of, counsel was in violation of the defendant’s right to counsel under the sixth amendment.

The Court held in Wade that it was error to have admitted an in-court identification without first determining whether such identification was tainted by the illegal line-up procedure, or had an origin independent thereof. In Wade Mr. Justice Brennan, who delivered the majority opinion for the Court, wrote: “But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly ²⁷⁹ riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.” Id. 388 U. S. at 228. In reasoning that the respondent’s rights under the sixth amendment were violated, he stated: “Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id. 388 U. S. at 236-37.

(Footnote omitted.) In Gilbert the Court found: “The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, supra.” Id. 388 U. S. at 272. Again, Mr. Justice Brennan, for the majority, stated: “Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence.” Id. 388 U. S. at 273.

In Stovall v. Denno, supra, the Court held that the exclusionary rules promulgated in Wade and Gilbert were to ²⁸⁰ have prospective application only, but recognized nonetheless that a confrontation not barred by Wade and Gilbert may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” that he [defendant] was denied due process of law. Id. 388 U. S. at 302. In Stovall the wife of a physician, who had been stabbed to death, had also been stabbed repeatedly and was hospitalized. The police found evidence at the assault scene which was traced to the petitioner.

Upon his arrest the following day his arraignment was postponed to permit the retention of counsel; in the interval the police took him, handcuffed to a police officer, and accompanied by four other police officers and two members of the prosecutor’s staff, to the hospital room where the witness was recuperating. She identified him. It was contended that this confrontation without the assistance of counsel was made under circumstances which “unfairly focused the witness’ attention on [the defendant] as a man believed by the police to be the guilty person.” Concerning the effect of the decisions in Wade and Gilbert , Mr. Justice Brennan, writing for the majority of the Court, stated: “Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel. A conviction which rests on a mistaken identification is a gross miscarriage of justice.

The Wade and Gilbert rules are aimed at minimizing that possibility by preventing the unfairness at the pretrial confrontation that experience has proved can occur and assuring meaningful examination of the identification witness’ testimony at trial.” Id. 388 U. S. at 297. In holding that the confrontation conducted in the hospital room was not “so unnecessarily suggestive and conducive to irreparable mistaken identification” that it constituted a denial of due process of law, he continued: ²⁸¹ “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.” Id. 388 U. S. at 302. (Footnote omitted.) The Court adopted with approval the observations of the United States Court of Appeals in the case, that Mrs. Behrendt was the only person who could possibly exonerate Stovall, that no one knew how long she might live, that faced with the responsibility of ascertaining the identity of the attacker and the need for immediate action, the police had adopted the only feasible procedure.

Save and except for circumstances factually similar to those in Stovall it came to be held, that notwithstanding that the holdings of Wade and Gilbert involved post-indictment line-ups, the exclusionary rules announced by Wade and Gilbert were applicable as well to a line-up conducted before indictment and to other pre-trial confrontations. Palmer v. State, 5 Md. App. 691 , 249 A. 2d 482 (1969). In Palmer Judge Orth (now Chief Judge), for the Court of Special Appeals, stated: “We think it necessarily follows that the rules of Wade and Gilbert apply also to a lineup conducted before indictment and to other pretrial confrontations within the meaning of Tyler. 1 We again note that in Stovall , at 300, the Court said ²⁸² that Wade and Gilbert affect ‘ * * * all future cases which involve confrontations for identification purposes conducted in the absence of counsel * * (emphasis supplied). It did not limit their affect to ‘post-indictment lineups.’ . . . .” Id. 5 Md. App. at 696 , 249 A. 2d at 486 .

In Smith v. State, 6 Md. App. 59 , 250 A. 2d 285 , cert. denied, 254 Md. 720 (1969), cert. denied, 397 U. S. 1057 (1970), Judge Orth again for the Court of Special Appeals, concerning the holdings in Palmer and in Tyler, stated: “We found that the rules of Wade and Gilbert apply to line-ups, both pre-indictment and post-indictment, and to other pre-trial confrontations ‘that are not subject to fair and meaningful objective review later at the trial.’ . . . Wade and Gilbert were founded on the constitutional right to counsel and they hold that a confrontation within their meaning was a critical stage of the proceedings. Therefore, absent a waiver of the right, such confrontation without the presence of counsel for the accused was illegal. They then fashioned exclusionary rules of evidence of identification made at an illegal confrontation.....” Id. 6 Md. App. at 64-65 . “Wade and Gilbert , therefore, affect the rules previously followed in this State with respect to the admissibility of evidence as to a judicial or extra-judicial identification only as to personal confrontations between the witnesses and the accused declared by those opinions to be illegal in the absence of counsel.

It is only then that the exclusionary rules would apply in determining the admissibility of such evidence.” Id. 6 Md. App. at 65 , 250 A. 2d at 289 . Concerning the effect of the holdings in Stovall , he stated: “But the Court said that it was a recognized ground of attack upon a conviction, independent of any ²⁸³ right to counsel claim, that a pre-trial confrontation was ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to be a denial of due process of law. Such a claimed violation of due process of law depends on the totality of the circumstances surrounding it. Although the Court recognized that the circumstances of a confrontation may result in a denial of due process of law, it found, [in Stovall] on the totality of the circumstances surrounding the confrontation there, that due process had not been denied.

It did not enunciate exclusionary rules applicable when there is such a denial, but we think it follows that when a confrontation is illegal, whether by the denial of the constitutional right to counsel or the constitutional right to due process of law, the same exclusionary rules would apply. We hold that when a pre-trial confrontation is found to be illegal by the denial of due process of law, the exclusionary rules, enunciated in Wade and Gilbert , as hereinbefore set out, are applicable.” Id. 6 Md. App. at 65-66 , 250 A. 2d at 289-90 . Thereafter, and before the decision of the United States Supreme Court in Kirby v. Illinois, 406 U. S. 682 , 92 S. Ct. 1877 , 32 L.Ed.2d 411 (1972), the holdings in Wade-Gilbert were applied consistently in this State to pre-trial identifications without regard to whether the confrontation was post-indictment or pre-indictment. See Watson v. State, 7 Md. App. 225 , 255 A. 2d 103 (1969); Simon v. State, 7 Md. App. 446 , 256 A. 2d 348 (1969), cert. denied, 256 Md. 748 (1970); Joyner v. State, 7 Md. App. 692 , 257 A. 2d 444 (1969), cert. denied, 257 Md. 734 (1970); Cook v. State, 8 Md. App. 243 , 259 A. 2d 326 (1969); McChan v. State, 9 Md. App. 317 , 264 A. 2d 133 , cert. denied, 258 Md. 729 (1970); Williams v. State, 11 Md. App. 607 , 275 A. 2d 522 , cert. denied, 262 Md. 751 (1971); Vernon v. State, 12 Md. App. 430 , 278 A. 2d 609 , cert. denied, 263 Md. 722 (1971); Davis v. State, 13 Md. App. 394 , 283 A. 2d 432 (1971), cert. denied, 264 Md. 746 (1972); Robinson v. State, 13 Md. App. 439 , 283 A. 2d 637 (1971).

The ²⁸⁴ issue of the applicability of Wade-Gilbert to pre-trial confrontations severely divided the state courts throughout the country; the majority adopting the reasoning of Palmer v. State, supra, and Smith v. State, supra. See 406 U. S. at 687 n. 5, 704 n. 14. 2 In Kirby v. Illinois, supra, 3 the Supreme Court held that the per se exclusionary rules of Wade-Gilbert were to be applied only at or after the time that adversary judicial proceedings had been initiated against a defendant by way of formal charge, preliminary hearing, indictment, information or arraignment. After noting that the rationale of Wade and Gilbert “was that an accused is entitled to counsel at any ‘critical stage of the prosecution’, and that a post-indictment line-up was such a ‘critical stage’ ”, Mr. Justice Stewart, for the plurality, said: “We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.” Id. 406 U. S. at 690 . After pointing out that any pre-trial confrontation which might be made immune to attack as a result of the holdings in Kirby could still be scrutinized to determine whether it was “unnecessarily suggestive and conducive to irreparable mistaken identification” under Stovall, supra, and Foster v. California, 394 U. S. 440 , 89 S. Ct. 1127 , 22 L.Ed.2d 402 (1969), 4 Mr. Justice Stewart observed that “When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the ²⁸⁵ prompt and purposeful investigation of an unsolved crime.” Id. 406 U. S. at 691 .

As a result of the decision in Kirby , in Jackson v. State, 17 Md. App. 167 , 300 A. 2d 430 , cert. denied, 268 Md. 749 (1973), Chief Judge Orth, for the Court of Special Appeals, after first noting that “after a lapse of four years we are told that what we so clearly saw in Wade and Gilbert was not really there,” stated: “The decision of this Court that the holdings of Wade and Gilbert were to be applied to pre-indictment as well as post-indictment confrontations was predicated upon our belief that such application was constitutionally compelled. Now that the Supreme Court [in Kirby v. Illinois] has made clear that our belief was ill founded, we abandon our position.” Id. 17 Md. App. at 171-72 , 300 A. 2d at 434 . After pointing out what the Court in Kirby said “about the constitutional right to counsel at pre-trial confrontations was not to suggest that abuse of identification procedures in the course of a criminal investigation were beyond the reach of the federal constitution,” Judge Orth observed that “This in substance was the firmly established law of Maryland before the Wade-Gilbert-Stovall trilogy.” He further stated for the court: “We concluded in Smith and Samuels, at 65, that Wade and Gilbert affected the rules previously followed in this State with respect to the admissibility of evidence as to a judicial or extra-judicial identification only as to personal confrontations between the witness and the accused declared by those opinions to be illegal by the absence of counsel. We held that the exclusionary rule of Wade and Gilbert applied to any pretrial confrontation which was in violation of due process of law under Stovall.

Id., at 65-66. We do not depart from that holding.” Id. 17 Md. App. at 173 , 300 A. 2d at 434 . ²⁸⁶ The decisions have thus “come full circle” from the evidentiary test applicable to such pre-trial confrontations as announced in Basoffv. State, supra, except that now the “circumstances precluding suspicion of unfairness or unreliability” are placed upon constitutional “due process” grounds. Appellants here concede that the holdings in Kirby v. Illinois, supra, as followed in Jackson v. State, supra, are dispositive of any argument that the identification procedure here followed was in violation of their rights under the sixth amendment to have counsel present at the confrontation; they argue, however, that though not invalid for want of counsel, the pre-trial one-on-one identifications were in violation of their “due process” rights.

In Neil v. Biggers, 409 U. S. 188 , 93 S. Ct. 375 , 34 L.Ed.2d 401 (1972), the United States Supreme Court held that although a station-house identification of the respondent may have been “suggestive,” under the totality of the circumstances there was “no substantial likelihood of misidentification” and that the evidence of the pre-trial identification need not have been excluded. Seven months after a rape (and prior to Stovall) the victim identified the respondent at a police station in a one-on-one confrontation. Following the assault she had given a description of the assailant and in the interval had viewed suspects both in her home and at the police station — some in line-ups, others in show-ups — as well as inspecting between 30 and 40 photographs, but had identified no one. The police had requested the victim to come to the station where the show-up consisted of the respondent, accompanied by two detectives, being walked past her, and at her request, being directed to say “Shut up or I’ll kill you.” The identification she then made was positive.

A line-up had not been arranged because the police could not find anyone in either the jail or the juvenile home who fit the respondent’s “unusual” physical description. After reviewing the holdings in Stovall v. Denno, supra, in Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968) (which held that a pre-trial ²⁸⁷ identification by photographs would be set aside only if the photographic identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”), in Foster v. California, 394 U. S. 440 , 89 S. Ct. 1127 , 22 L.Ed.2d 402 (1969) (where the witness failed to identify Foster in a three-man line-up, was still “not sure” in a one-on-one meeting at the police station and then, a week later, identified the petitioner in another line-up, and such “suggestive elements in the repeated confrontations” were held to violate “due process”), 5 and in Coleman v. Alabama, 399 U. S. 1 , 90 S. Ct. 1999 , 26 L.Ed.2d 387 (1970) (where the identification was found to have been made “entirely based upon observations at the time of the assault and not at all induced by the conduct of the line-up”), Mr. Justice Powell, who delivered the majority opinion for the Court, stated: “Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U. S., at 384 , [ 19 L.Ed.2d 1247 , 88 S. Ct. 967 .] While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself (Footnote omitted). It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster .

Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ²⁸⁸ ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.” Id. 409 U. S. at 198 . (Emphasis supplied.) “ . .. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, not because in every instance the admission of evidence of such a confrontation offends due process.

Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U. S. 263, 273 , [ 18 L.Ed.2d 1178 , 87 S. Ct. 1951 ] (1967); Mapp v. Ohio, 367 U. S. 643 , [ 6 L.Ed.2d 1081 , 81 S. Ct. 1684 , 84 A.L.R.2d 933 ] (1961).” Id. 409 U. S. at 199 . Concerning the factors to be considered within the “totality of the circumstances” in such identification procedures, he stated: . “We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered, in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. 409 U. S. at 199 . In Billinger v. State, 9 Md. App. 628 , 267 A. 2d 275 , cert. ²⁸⁹ denied, 259 Md. 729 (1970), 6 an accidental confrontation 6a took place in the emergency room at a hospital where the victims of a robbery had been taken for treatment and Billinger, with a seriously cut hand, had approached a police officer about one and one-half blocks from the scene of the crime and asked that he be taken to the nearest hospital.

At the hospital another officer noticed that Billinger answered the description given by the victims and brought this fact to their attention; they there made a positive identification of him. Judge Orth, again writing for the Court of Special Appeals, although recognizing that the broad language in Wade and Gilbert did not limit their applicability to post-indictment confrontations, distinguished the facts in Billinger from the application of the holdings in Wade based upon a “prompt confrontation” — within minutes after the commission of the crime — and following the reasoning in Russell v. United States, 408 F. 2d 1280 (D.C. Cir.), cert. denied, 395 U. S. 928 (1969); Wise v. United States, 383 F. 2d 206 (D.C. Cir. 1967), cert. denied, 390 U. S. 964 (1968); and Bates v. United States, 405 F. 2d 1104 (D.C. Cir. 1968), held: “ . .. [I]t is not improper for the police promptly to display a freshly apprehended suspect for identification by one who minutes before had been the victim of or an eyewitness to the commission of a crime.... Of course the confrontation in the present case would be illegal, independent of the right to counsel, if it was conducted in such manner as to deny due process of law. And it would violate due process of law if it were so unnecessarily suggestive as to be conducive to irreparable mistaken identification.

But although a single-suspect or one-on-one confrontation may be suggestive, we believe that prompt on the scene confrontations, ²⁹⁰ absent special elements of unfairness, do not entail due process violations. ” Id. 9 Md. App. at 636, 267 A. 2d at 280 . (Emphasis supplied.) “ ... We see no substantial likelihood of irreparable misidentification in this confrontation. On the contrary the police action fostered ‘the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh.’ Bates v. United States, 132 U. S. App. D. C. 36, 405 F. 2d 1104 (1968) at 1106.” Id. 9 Md. App. at 636-37, 267 A. 2d at 280 .

To the same effect see Spencer v. State, 10 Md. App. 1 , 267 A. 2d 323 , cert. denied, 259 Md. 736 (1970), 7 where the appellant, caught hiding in the bushes across the street from the home of the victim of an assault, was identified by her, while standing on the porch of her home, about 15 to 20 feet from the appellant, when the police brought him out of the bushes and asked, “Is this the man?” In Davis v. State, 13 Md. App. 394 , 283 A. 2d 432 (1971), cert. denied, 264 Md. 746 (1972), a filling station employee, suspected the “evil intentions” of a group of young men loitering near the station and “paid them close mind”; two of the group entered the station, loitered there for about five minutes and were then joined by a companion who drew a gun and robbed the employee. A description of the assailants and in particular the clothing worn by each was given to the police by the victim. Approximately 20 minutes after the robbery the police returned to the filling station with a single person seated inside the police cruiser; when asked to look in the window “to see if the person inside was one of those who had robbed him”, the employee made a positive identification. After quoting from Billinger v. State, supra, Spencer v. State, supra, Stovall v. Denno, supra, and Bates v. United ²⁹¹ States, supra, Judge Carter, for the Court of Special Appeals, said: “We