Gross v. State

Orth, J., delivered the opinion of the Court. John Wagstaff, Jr. and Ronald Marvin Gross (appellants) and Charles Arnold Pace, jointly tried, were found guilty at a court trial in the Criminal Court of Baltimore of robbing Frank Seglinski with a deadly weapon. Each appellant questions the admission of a judicial identification of him as one of the robbers by the victim but for different reasons. Wagstaff contends that “the court was clearly erroneous in relying upon the sole identification of Frank Seglinski.” He suggests that the State had available an eyewitness to the crime other than the victim but did not call him.

He does not dispute the rule consistently followed by this Court that identification by the victim alone is sufficient to establish criminal agency, Nance v. State, 7 Md. App. 433 and Gunther v. State, 4 Md. App. 181 , but urges that the procedure here followed at trial by which the in-court identification was obtained “tainted and seriously impaired” it. He asserts that just before the identification was made the Assistant State’s Attorney asked, “Would the gentlemen on the first bench please state your name for the record ?,” that defense counsel objected and requested a mistrial and that the court helped the identification when it said, “I thought he was ready to identify right now.” The transcript discloses that the circumstances surrounding the identification were not as Wagstaff suggests. Seglinski had reached the point in his testimony where he would testify as to the identity of his assailants. Gross had filed a pretrial motion to suppress any judicial or extra-judicial identification of him.

Luther C. West, one of the Assistant State’s Attorneys, stated to the court that in view of Gross’ motion “the State will break its testimony with Mr. Seg-. linski at this time prior to going into the question of ³⁴³ identification and ask that I be permitted to recall him at a later time.” It was then the court said, “I thought he was ready to identify right now.” The transcript then reads: “MR. WEST: Yes, sir. All right. Q. Mr. Seglinski, if you see the men in the courtroom that held you up— THE COURT: Do you see any of the men in court that walked into the tavern?

MR. WALKER (counsel for Gross) : The question is objected to, Your Honor. THE COURT: Overruled. THE WITNESS: The three men that came into my place now are sitting there on the first bench.

MR. WEST: Would the gentlemen on the first bench please state your name for the record? MR. KAPLAN (counsel for Wagstaff) : Objection to that, if Your Honor please.

I move for a mistrial. THE COURT: What’s your reason for a mistrial ? MR. KAPLAN: The State’s Attorney is pointing out the defendants.

THE COURT: He said the three men that came in are sitting on the front bench. MR. KAPLAN: There are a couple of front benches. Three of them to be exact.

Wait a minute, I have a motion for a mistrial here. THE COURT: I don’t see any reason for a mistrial. MR. WARD (Assistant State’s Attorney) : I think the record should show that there are three front benches in the courtroom.

At the time the question came up, and objection was made, on the middle bench ³⁴⁴ was sitting three colored males together with a police officer, Officer Ehrenburg, a jail guard. On the other bench was sitting an elderly white gentleman and the other bench, that was unoccupied. MR. WALKER: For the record I wish to also join in that objection.

THE COURT: Are you asking for a mistrial Mr. Walker? MR. WALKER: No. I’m objecting to the question, Your Honor, at this point. THE COURT: The question you objected to, will you walk over, he didn’t complete.

What is the question you asked? Mr. Burns you want to object to ? MR. BURNS (counsel for Pace) : • Yes Your Honor.

The question was counsel asked the three people on the front bench to give their names. This is the question that I also object to. MR. KAPLAN: And pointed to this particular defendant.

THE COURT: Which particular defendant? MR. KAPLAN: The first one here. THE COURT: For the record who do you mean?

MR. KAPLAN: I don’t know, Your Honor. I’m merely indicating what the Assistant State’si Attorney did. He pointed to a gentleman on the front bench.

What kind of a suit you got on ? A DEFENDANT: Silk. MR. KAPLAN: Silk suit with a blue shirt and gray tie.

MR. WALKER: I wish to correct myself. I do move for a mistrial and object. I think it’s a dual position.

THE COURT: What’s your reason for a mistrial Mr. Walker. ³⁴⁵ MR. WALKER: I think Mr. Kaplan has a good point, Your Honor. I think if the State— THE COURT: What is his point? MR.

WALKER: If the State now points of a particular individual, aren’t they aiding in identification which is highly prejudicial? I think this must be unaided, unhampered act on the part of a witness and I do believe that where the State picks up prematurely a harmless statement made by a witness and now points to a particular individual and says you give your name for the record, it certainly is a shot in the arm to a witness who may otherwise be encountering difficulty in making an identification. THE COURT: Gentlemen I think you’re making really a great mountain out a small molehill in this connection. The witness said the three men who came in are the ones on the front bench.

I think the record indicated that on the front bench are three colored gentlemen and Officer Ehrenburg on the center front bench. On the right front bench as this Court looks at the courtroom is an elderly gentleman, white, white hair. On the left on the front bench is a white gentleman. MR.

WARD: Pardon me. None of these two gentlemen were sitting there at the time. Your Honor. THE COURT: I see one just walked into the courtroom, also a white gentleman who just sat down.

The other one was sitting there. I don’t know when he came in. He is a white gentleman. The motions for a mistrial are denied. ³⁴⁶ MR.

WEST: Your Honor, I think that the record should also show that Mr. Seglinski in answer to Your Honor’s question that was addressed to him originally in regard to the identification of the men who came in his bar, he also pointed at the three gentlemen. THE COURT: He pointed in the general direction of three colored men who were sitting on the front bench as he indicated. MR. WEST: Yes, sir.

Q. Mr. Seglinski, would you please walk over and put your hand on the shoulders of the three, if you see the men in the courtroom, who entered your tavern on the night at 1:20 A.M., 14th of March, 1968 ? MR. WALKER: Objected, Your Honor, for the record. I have a motion pending.

THE COURT: All right. Motion denied. Objection overruled. You do that, Mr. Seglinski.” Seglinski then positively identified each of the three defendants as a participant in the robbery, relating each to the acts performed at the time of the crime as he identified him.

We find no reversible error as to the judicial identification of Wagstaff. See Bailey v. State, 6 Md. App. 496 . Gross contends that the judicial identification of him was inadmissible as tainted by a pretrial lineup which was illegal. He claims that the lineup was illegal because it was conducted in the absence of counsel representing him, the right to counsel not being effectively waived.

He urges that he could not intelligently waive the presence of counsel because he did not know “for what crime he was being investigated.” The identification evidence was properly challenged by a pretrial motion to suppress. Maryland Rule 729; Smith and Samuels v. State, 6 Md. App. 59 . The motion was de ³⁴⁷ termined during the trial on the merits. At the trial it was first brought to light that a lineup had been conducted on cross-examination of Seglinski by counsel for Gross.

Thereafter evidence was adduced with respect to the legality of the lineup and it is clear that such evidence as was thereon elicited by the State was not for the purpose of establishing substantive evidence of identity independent of the judicial identification. It is equally clear that it was established that Gross was not represented by counsel at the lineup 1 and that he signed a document affirmatively waiving his right to counsel. At the close of the evidence on the issue the court found that Gross had intelligently waived his right to counsel. The effect of the finding was that the lineup was legally conducted. 2 Thereafter, the State, not content with the judicial identification by Seglinski, introduced evidence through a police officer of the identifications by Seglinski and another eyewitness to the crime of Gross at the lineup as evidence of identity independent of the judicial identification.

It was subsequently disclosed that the eyewitness was not present at the trial so as to be subject to cross-examination. Thereupon the court properly struck the evidence as to that extra-judicial identification and made abundantly clear that it would not consider it in arriving at its verdict. See Smith and Samuels v. State, supra, at 63-64. But evidence as to the extrajudicial identification by Seglinski remained in and