Godwin v. State

Moylan, J,, delivered the opinion of the Court. This case grows out of a macabre series of cold-blooded executions reminiscent of the St. Valentine’s Day Massacre. As one of those executioners, the appellant, Roland Neville Godwin, was convicted in the Circuit Court for Prince George’s County by a jury, presided over by Judge Jacob S. Levin, of three counts of first-degree murder, four counts of kidnapping and four counts involving the unlawful use of a handgun in the commission of a felony. Upon this appeal, he raises seven contentions: 1) That an extrajudicial identification of him by a codefendant-turned-State’s-witness was unconstitutionally received in evidence; 2) That a tainted in-court identification of him by the sole survivor of the executions was unconstitutionally received in evidence; 3) That a tainted extrajudicial photographic identification by a witness was unconstitutionally received in evidence; 4) That he was unduly restricted in his cross-examination of State’s witnesses in terms of impeaching their credibility; 5) That the trial court erred when it failed to declare a mistrial because of allegedly improper argument by the State’s Attorney; 6) That the trial court committed error when it failed to instruct the jury on the meaning of premeditation; and 7) That the kidnapping convictions should have merged into the felony-murder convictions.

Initially, we will briefly set the factual backdrop of the case. A codefendant and ultimate State’s witness, Johnnie Mae Jones, was apparently the victim of a robbery. Instead of complaining to the authorities, she complained to her brother, codefendant Willie Lee Jones, Jr., and the two of them elected to take the law into their own hands. They were joined in this venture by their two ultimate codefendants, James Richard Person and the appellant. ⁷¹⁹ The four victims were Alvin Jones, Anthony Cunningham and David Dock, all three of whom were executed, and Ronald Swayne, who survived to testify.

There were strong intimations in the evidence that the executioners as a group and the victims as a group were part of a narcotics-using culture and that there were some social acquaintanceships flowing between the two groups. The executions occurred during the pre-dawn hours of October 24, 1975. Ronald Swayne left his home at between 8 and 9 p.m. on October 23 in his own car, a red Cougar. He drove to the residence of his friend (and one of the executed victims) Alvin Jones.

He there picked up Jones and another of the ultimate victims, Anthony Cunningham. The threesome drove to an apartment building on C Street in southeast Washington. Swayne blew the horn of his automobile and two individuals came out of the apartment to join them. They were two of the ultimate killers, but danger signs had not as yet reared their heads.

The two individuals were codefendant James Richard “Reds” Person, an acquaintance of Swayne, and the appellant, “a tall slim black man” whom Swayne had never seen before. Shortly thereafter, David Dock, the remaining ultimate victim, came out of the same apartment and joined “Reds” Person and the appellant in an orange Volkswagen. The orange Volkswagen took off first; Alvin Jones directed Swayne to follow in his red Cougar. Both cars, and all six persons, drove out of the District of Columbia into Seat Pleasant in Prince George’s County, Maryland.

All six individuals went into an apartment. They there joined codefendant Willie Lee Jones, Jr. (“Junior”). Swayne testified that he himself was a former drug user and that Alvin Jones was still, as of that night, a heavy drug user. Alvin Jones was in the process of “shooting some narcotic drugs into his arm” when Swayne heard a shot.

He looked up and saw that three of the group —- “Reds” Person, “Junior” Jones and “the tall slim black man” (the appellant) — all had pistols and were training them upon the other four men. Swayne, along with Cunningham, Dock and Alvin Jones, was told to lie down on the floor. All four of the victims were then covered up with blankets. Swayne heard conversation dealing with the fact ⁷²⁰ that “somebody’s sister had been robbed.” “Reds” Person and the appellant then placed all four of the victims into a blue Cadillac.

Swayne and Cunningham were put on the floor of the back seat. Alvin Jones and Dock were put in the trunk. “Reds” Person and the appellant then drove the Cadillac for between twenty minutes and half an hour to an unknown location. It was at this unknown location that the identification phase of the “drumhead court-martial” was to take place. Swayne overheard someone say, “Get Junior’s sister.” About half an hour later, Johnnie Mae Jones (Junior’s sister) arrived at the scene. “Reds” Person ordered Cunningham and Swayne to lift up their heads from the floor.

Johnnie Mae Jones identified Cunningham as one of the men who had robbed her, thereby sealing his doom. She indicated, on the other hand, that Swayne was not one of her robbers, thereby saving his life. She subsequently was observed to identify Alvin Jones, who lay in the trunk of the blue Cadillac, as one of the robbers. Although Swayne did not testify as to having observed her identify David Dock, who also lay in the trunk of the blue Cadillac, presumably he was also somehow “deemed guilty.” The testimony of Johnnie Mae Jones essentially corroborated- that of Ronald Swayne.

She testified that she was picked up by her brother “Junior” Jones at between 1 a.m. and 3 a.m. on the morning of October 24. Her brother drove her to a location in Maryland “on a dark road near a little white church.” She there observed two of her brother’s friends, “Reds” Person, whom she had known before, and a “tall slim black man,” whom she had not known before and whom she knew that night only as “Slim.” “Slim” and “Reds” then ordered Cunningham and Swayne out of the back seat of the Cadillac. She testified that she knew that there were other unidentified individuals there because she heard “someone banging on the trunk of the Cadillac.” After she had exonerated Ronald Swayne, “Slim” ordered her brother “Junior” to take Swayne and to put him in the trunk of Swayne’s own car, the red Cougar. “Slim” then ordered “Junior” Jones to take Johnnie Mae Jones and Swayne home. ⁷²¹ “Junior” Jones and Johnnie Mae Jones left in the red Cougar, with Swayne in the trunk. The story at that point is picked up by the testimony of Ronald Swayne.

From his position in the trunk of his own red Cougar, he felt the car drive off. When the car stopped, “Junior” Jones released Swayne from the trunk but ordered Swayne to drive at “Junior” Jones’s direction. As of the moment when Swayne was released from the trunk, Johnnie Mae Jones, presumably now “home,” had left the automobile and the presence of Swayne and “Junior” Jones. At Jones’s direction, Swayne drove the car to an unknown location where they rejoined “Reds” Person and “the tall slim black man” later identified as the appellant.

The appellant ordered “Junior” Jones to put Swayne back in the trunk of Swayne’s Cougar. From the trunk, Swayne heard a lot of shooting and then a “big boom.” He heard people running back to the car, heard them “jump into the car and pull off.” After the car had stopped, Swayne struggled for about five to ten minutes and finally “was able to pop his trunk open.” He was the only one upon the scene and he drove his car home. A disinterested witness, Donald McCain, supplied some of the missing threads. During the early morning hours of October 24, he was staying in a house in Seat Pleasant, Maryland.

He looked outside and saw an individual standing by his U-Haul van. Apprehensive about his van, he kept a close lookout and then went outside. He saw parked near his van both a blue Cadillac and a red Cougar. When he walked outside, he observed two individuals, one whom he already knew as James “Reds” Person, who asked McCain for a cigarette.

The other individual, later identified photographically as the appellant, he described as “a tall slim black man.” After returning to the house where he was staying, he observed these two men walking up the street and one of them appeared to be carrying an object which looked like a gun. From the house, he later heard “about four, five or six shots; a few of these shots sounded like a shotgun and one sounded like a .22 caliber gun.” He looked out the window and observed two individuals running back toward the two ⁷²² cars. One of the individuals jumped into the blue Cadillac and the other jumped into the red Cougar and they both drove off. Alvin Jones was found wounded in a nearby field.

He later died at the Prince George’s County General Hospital. Found wounded in a nearby creek bed was Anthony Cunningham, who also later died in the Prince George’s County General Hospital. Also found in the creek with a head wound was David Dock, who was pronounced dead upon arrival at the Prince George’s County General Hospital. The appellant was granted a trial severance. 1 Identifications, both judicial and extrajudicial, were made of the appellant by three separate witnesses.

Each of those identifications gives rise to an appellate contention. 1. The Extrajudicial Identification by _Johnnie Mae Jones_ At issue here is the mechanics of the identification as well as the constitutional soundness thereof. Although mechanically the identification involved a somewhat unusual two-step process instead of the more “garden variety” one-step process, we see no impediment. Involved was simply a bit of elementary logic as to which any fact finder should have the requisite competence.

Johnnie Mae Jones had never seen the appellant before the night of the killings. At the trial, sixteen months after the fact, she was unable to make a judicial identification of him in the courtroom. (It is not without significance that the appellant had radically altered in appearance during the intervening sixteen months.) Johnnie Mae Jones, however, was unequivocal in her conclusion that the same "Slim” who had been the only member of the three-man “firing squad” not theretofore ⁷²³ known to her as of the morning of October 24,1975, had been the same “Slim” who had stood in the dock with her; her brother, Willie Lee “Junior” Jones, Jr.; and James Richard “Reds” Person at a pretrial hearing on March 30, 1976, five months after the crimes and eleven months before for failure to identify the appellant in the courtroom at the time of the appellant’s trial. Her testimony established the major premise of the ultimate identification syllogism: The “Slim” who was at the crime scene is the “Slim” who stood with my brother, “Reds” Person and me in the dock on March 80, 1976.

A equals B. The minor premise was supplied by Edward Garrison Neal, a former Assistant State’s Attorney who had been present at the pretrial hearing of March 30, 1976. He stated that four prisoners stood in the dock. They included Johnnie Mae Jones, later turned State’s witness; her brother, Willie Lee “Junior” Jones, Jr.; and James Richard “Reds” Person. The fourth person was Roland Neville “Slim” Godwin.

Mr. Neal identified the Roland Neville Godwin who was a codefendant at the pretrial hearing of March 30,1976, as the same Roland Neville Godwin sitting at the trial table as the defendant on February 7, 1977. B equals C. With the evidentiary establishment of that minor premise, the conclusion was ineluctable: A equals B. B equals C. A equals C. To wit, the “Slim” whom Johnnie Mae Jones observed at the crime scene is effectively identified as the appellant in this case. We see no flaw whatsoever in this chain of logic. Granting that what was introduced in this case was an extrajudicial identification of the appellant made by Johnnie Mae Jones on March 30, 1976, the appellant challenges that extrajudicial identification on the grounds that it was impermissibly suggestive.

We cannot agree with the appellant that exclusion was called for. We note initially that the police were not guilty of any contrived circumstances for ⁷²⁴ identification purposes. The pretrial hearing of March 30, 1976, was not contemplated as an identification procedure in any way, shape or form. Four defendants were in court to have hearings on motions made by them.

They were not there to identify each other. Johnnie Mae Jones herself was still a full-fledged defendant, who had not agreed to become a State’s witness. Self-evidently, she was not asked to identify anyone. The recollection that the man she knew as “Slim” at the crime scene had been with her in the prisoner’s box at the pretrial hearing was something that came to light only during her testimony at the trial upon the merits.

Moreover, the appellant was represented by counsel at the pretrial hearing of March 30, 1976. There was simply no Sixth Amendment violation of the right to the assistance of counsel such as would invoke the per se exclusionary rule of United States v. Wade, 388 U. S. 218 , 87 S. Ct. 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). When we are looking not at a deprivation of the Sixth Amendment’s right to counsel but only at so-called impermissive suggestiveness, it is now clear in the light of Neil v. Biggers, 409 U. S. 188 , 93 S. Ct. 375 , 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U. S. 98 , 97 S. Ct. 2243 , 53 L.Ed.2d 140 (1977); Foster v. State, 272 Md. 273 , 323 A. 2d 419 ; and Dobson v. State, 24 Md. App. 644 , 335 A. 2d 124 , that we exclude neither the extrajudicial identification itself nor a judicial identification based upon it except in those cases where there is a “substantial likelihood of irreparable misidentification.” In Manson v. Brathwaite, the Supreme Court spelled out the factors which militated against a per se exclusionary rule even where there had been present an element of impermissive suggestiveness. In opting rather for the “totality of circumstances” approach, it said, at 53 L.Ed.2d 152 -153: “The third factor is the effect on the administration of justice.

Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the ⁷²⁵ per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach cases in which the identification is reliable despite an unnecessarily suggestive identification procedure — reversal is a draconian sanction.

Certainly, inflexible rules of exclusion, that may frustrate rather than promote justice, have not been viewed recently by this Court with unlimited enthusiasm.” The Court’s conclusion in Manson v. Brathwaite was clear, at 53 L.Ed.2d 154 : “We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post Stovall confrontations. The factors to be considered are set out in Biggers____ These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Applying the factors to be considered in this regard as spelled out in Neil v. Biggers, supra, we conclude, upon our constitutionally mandated, independent review, that no such likelihood was here present. Johnnie Mae Jones was in close contact with “Slim” for a significant period of time immediately preceding the shootings. “Slim” addressed her at point-blank range and asked her to identify at least several individuals.

The incident was such as to rivet serious attention to it. The pretrial confrontation occurred within a few months of the crime. Johnnie Mae Jones appeared certain in her testimony that the man at the crime scene was the same man who stood with her as a codefendant at the pretrial hearing. ⁷²⁶ Under the “totality of circumstances” approach mandated by the due process clause of the Fourteenth Amendment, we perceive no error in the admission of this pretrial identification. 2. The Judicial Identification by _Ronald Swayne_ The surviving victim, Ronald Swayne, identified the appellant as one of his assailants.

The appellant takes umbrage at this judicial identification, claiming it to have been the poisoned product of a tainted one-on-one showup conducted by the police approximately two days after the crimes. Although we are by no means persuaded that even the extrajudicial identification itself, measured against the standard set out in Neil v. Biggers, might not pass muster, for admissibility purposes, in terms of its substantial reliability, it is unnecessary to undertake that lengthy analysis. If the in-court identification is not, indeed, the product of the earlier extrajudical identification, the suggestiveness vel non of that earlier confrontation is immaterial. As we pointed out in Green v. State, 35 Md. App. 510, 523 , 371 A. 2d 1112 : “For an in-court identification to be suppressed, two things must be shown: (1) That the extrajudicial identification procedure was the proximate cause of the ensuing in-court identification.

(Even if there has been a tainted, to wit, impermissibly suggestive, extrajudicial identification procedure, the in-court identification may still be admissible if it is shown to be not the product of the earlier, tainted identification procedure. . . .).” In this case, the independent source of Ronald Swayne’s judicial identification is clear. With the jury out of the room, the following was established unequivocally on direct examination: “Q. Is your identification of the tall man in this ⁷²⁷ courtroom today, Mr. Swayne, based upon your observations of him through the entire incident, or was it based upon anything or anyone you saw that Saturday in the District of Columbia police station? MR. DE PAUL: Objection.

THE COURT: Overruled. THE WITNESS: Based upon what I seen during that incident.” The defense effort, on cross-examination, to cast doubt upon the independent source of the in-court identification was unavailing: “Q. Of course, the help you got from the police helped you out a little bit, didn’t it? A. Not really.” The in-court identification was properly permitted. 3. The Extrajudicial Photographic Identification ___________ by Donald McCain _ Evidence was introduced establishing that Donald McCain had on approximately March 31,1976, identified a photograph of the appellant as one of the men he observed on the night of the crimes.

Again, the lengthy analysis under Neil v. Biggers is unnecessary, because of the utter failure of the appellant to establish, as is his burden, any initial taint in the photographic viewing. There were ten pictures in the photographic array. Though all were not uniform, they were all of young Negro males, some with facial hair and some without. There was nothing to highlight the photograph of the appellant as the one to be picked.

There was no suggestion that the police in any way indicated to McCain that it was the appellant’s photograph that should be singled out. Under Smith and Samuels v. State, 6 Md. App. 59 , 250 A. 2d 285 , the appellant simply did not carry his initial burden requiring the State to go forward in any regard. ⁷²⁸ 4. The Limitation Upon the Cross-Examination _of the State’s Witnesses_ The appellant sought to cross-examine both Ronald Swayne and Donald McCain as to past criminal conduct or involvement with the police. Upon timely motion by the