Green v. State

Orth, J., delivered the opinion of the Court. Milton Thomas Green, also known as Angelo Michael Daniels, was found guilty by a jury in the Circuit Court for Montgomery County of robbery with a deadly weapon, the use of a handgun in the commission of a felony, and the unlawful transportation of a handgun. He was sentenced to a total of fifteen years. On direct appeal the Court of Special Appeals affirmed the judgments.

Green v. State, 35 Md. App. 510 , 371 A. 2d 1112 (1977). We granted Green’s petition for a writ of certiorari, limiting our review solely to the question of whether he was denied a fair trial because the State was permitted to obtain an in-court identification in contravention of law. ⁴⁸⁵ I The victim of the robbery was Commander Rene Alfredo Molina, a member of the Ecuadorian Navy on duty in Washington, D.C. Although Molina’s testimony at trial was elicited through a Spanish-English interpreter, it clearly established the corpus delicti of each of the crimes. About 11:15 p.m. on 16 November 1975, Molina dropped his wife and three other persons off at his apartment in the Wheaton area of Montgomery County upon their return from the Dulles International Airport. He drove to the parking area of his apartment complex to park his car for the night.

He was followed by a Datsun sportscar, occupied by two black males. While sitting in his car on the parking lot, he was robbed by the passenger in the sportscar, who stole between twenty and forty dollars from him at the point of a handgun. The driver of the sportscar took the keys to Molina’s car from the ignition switch and ordered him to get out of the car and walk toward his apartment. The felons drove away in their own car.

As the prosecutor pointed out in his opening statement to the jury, the real issue in the case was1 the criminal agency of Green. During the presentation of the State’s case, in the presence of the jury, over timely objection, and under circumstances most unusual, Molina twice identified Green as one of the robbers. A viewing of photographs by Molina at the instance of the police immediately after the robbery had not resulted in an identification. On the day of the trial, shortly before it began, Molina saw Green in the courthouse, and, upon that confrontation, said he was then able to identify Green.

Thus, there were an unsuccessful pretrial attempt to have Molina identify Green through photograph viewing procedures, an extrajudicial identification of Green by Molina, and two judicial identifications of Green by Molina. There was never a hearing to determine the admissibility of the judicial identifications. The issue is the propriety of their admission in evidence. We glean the circumstances relating to the identifications of Green from the proceedings at the trial.

About an hour and a half after the robbery, Molina went to the police station and viewed some 200 to 300 photographs. He made no ⁴⁸⁶ identification. The record does not disclose whether a photograph of Green was among those Molina viewed. Up to the day of trial Molina had not identified the driver of the sportscar who had participated in the robbery.

On the day of the trial, but before it commenced, Molina saw Green in the courthouse and recognized him as the driver. Molina went promptly to the office of the State’s Attorney and told the prosecutor that he was now able to identify Green as the driver. At some time thereafter, the prosecutor informed defense counsel of this development. At the trial, after evidence had been adduced to establish the corpus delicti, the prosecutor asked Molina if he had viewed photographs at the police station.

Defense counsel asked for a bench conference at which he requested that the jury be excluded as it appeared that the State was about to introduce identification evidence. The State admitted that it was going to seek an in-court identification. The court said it understood that Molina had been unable to make an identification from photographs. This was verified by the prosecutor, but he said objection was premature.

It was his position that the burden was on the defense “to show somehow or another the failure to make an identification out of court tainted the in-court [identification] ... to make it illegal.” The court thought that Molina could “testify that he was shown these photo arrays and that he could not make an identification. That is not objectionable.” Defense counsel made clear that “at the point [the State] wants to ask whether or not [Molina] can identify [Green], I would like a hearing Out of the presence of the jury on whether or not that is a tainted identification ....” The court replied: “All right. We may have to do that. At this point we are not at that point.” The trial proceeded before the jury, and shortly thereafter Molina testified about viewing photographs at the police station.

It was elicited that he had not made an identification. The prosecutor then asked: “Do you see in Court now the person who was the driver of the Datsun?” Defense counsel immediately objected, but the court directed the interpreter to tell Molina that he could answer yes or no. Molina answered: “Yes,” whereupon there was another bench ⁴⁸⁷ conference. Defense counsel requested a suppression hearing out of the presence of the jury.

There ensued a discussion in which, as the Court of Special Appeals aptly put it, “two or three cognate issues blurred together and ... the common attention of [defense] counsel, the ... prosecutor and the trial judge never focused on the same question. The exchanges among all three parties were not sharply responsive and there appears to have been a communications gap as to precisely what the material issue was.” Green, 35 Md. App. at 514 . Although not definitively articulated, it appears manifest that defense counsel’s demand for a suppression hearing out of the presence of the jury was not predicated upon any suggestion of illegality per se in the photographic viewing procedures but upon the fact that, as the prosecutor admitted, until Molina saw Green in the courtroom just before the commencement of the trial, he had been unable to make an identification. It was the circumstances under which Molina saw Green in the courtroom, defense counsel argued, which suggested that any in-court identification might be tainted.

It cannot be ascertained from the record before us what the situation was when Molina first saw Green. The prosecutor suggested that it was when Green was brought into the courthouse. But the circumstances surrounding that entry are not shown. Whether he was brought in by a police officer or a guard or by his attorney is not disclosed.

Who was then present is not known. Defense counsel now suggests that Green was in the courtroom when Molina saw him. He argues: “The victim was unable to make any identification of his assailants until the morning of trial when, prior to trial, the victim observed [Green] in the courtroom. The assailants were black men, [Green] is a black man, and [Green] was the only black man in the courtroom.” Ipso facto, he urges, there was an impermissibly suggestive one-on-one confrontation.

Defense counsel sought a hearing out of the presence of the jury to obtain a ruling by the court as to the admissibility of an in-court identification. The prosecutor, who had been resisting a suppression hearing on the ground that no extrajudicial identification had been made as a result of the photographic viewing procedures on the day of the robbery, ⁴⁸⁸ grasped the point. He told the court: “[Defense counsel] has now cast the die. He has given a specific proffer that this in-court identification is tainted by a pre-trial [confrontation]. 1 He is no longer talking about solely what happened back in November [at the viewing of the photographs].

He is now saying what happened today when the victim saw the defendant being brought into the Courthouse taints the in-court identification. Now, I believe he has a right to that hearing in light of the proffer. That is my opinion.” The court said: “We will give you a hearing.” The jury was sent to the jury room so a hearing could be held out of its presence. After court convened following a short recess, but before the jury returned, the prosecutor said: “We can truncate the proceedings at this point. [Defense counsel] is going to make a motion, as I understand it, to suppress the in-court identification by this witness [Molina].

I will not ask, in light of that, this witness to make an in-court identification.” The court opined that this satisfied the problem. The jury was brought back and Molina returned to the witness stand. The prosecutor asked: “Commander, with reference to what you told the jury that happened ... back in November of 1975, do you see anybody in court that had anything to do with this holdup?” Defense counsel objected and the witness answered, “Yes,” before the court ruled. This, of course, prompted another bench conference.

Defense counsel moved for a mistrial because the prosecutor, by asking the very question which he had expressly declared he would not ask, had obviated a suppression hearing after conceding that Green was entitled to it. The prosecutor noted that the question now challenged was “the same question as before.” He defended his actions on the premise that there would be no in-court identification until Molina specifically pointed out Green as one of the robbers. It was his idea that Molina’s declaration that he saw someone in the courtroom who participated in the holdup ⁴⁸⁹ would be followed by the request to designate that person. At that point, defense counsel could object, the objection would be sustained, and the matter not be pursued further.

Defense counsel did not see it that way. He argued that “the ink was in the milk,” and he was unable to see how it could be purified. It seemed that the court shared that view: “[The witness has] just answered the question yes. If you look around the courtroom, there is only one person out there in this courtroom that could possibly be involved in this ... thing.

That is the defendant. “What he has now answered is that he can see somebody, has seen somebody in this courtroom. The way it was asked this time and the affirmative answer can only point to the defendant.” Defense counsel vigorously pursued his objection: “What can I possibly do now? He has got the question in. He has denied me my suppression hearing.

I don’t see what else Your Honor can do [but grant a mistrial].” The jury was again sent back to the jury room. The reporter read the record relating to the question as first asked. The court leaned toward the State’s position: “He has not identified [Green] as being the one.” Defense counsel thought the court was “stretching things there. There isn’t any question but what there has been an identification.

I have been denied a suppression hearing I am entitled to. That is the point.” The court vacillated: “I have some question as to whether the jury based on the answers can’t figure out who he was talking about,” but “[t]he identification has not been made to the extent he has looked at the defendant and said ‘That is him.’ ” On the other hand, the court continued: “He didn’t say, when you asked him the question, look around the courtroom, do you see anybody that participated in this robbery, he didn’t say no. He answered yes. Having answered ⁴⁹⁰ that, if there were half a dozen other young black males in the courtroom that we could say might have been involved in this, it might have been a different story.

We don’t have a half a dozen blacks in the courtroom. We don’t have anybody but the defendant.” It was then determined, apparently to the satisfaction of all