Howard v. State

Murphy, C. J., delivered the opinion of the Court. Appellant was convicted on November 17, 1966 by a jury in ⁷⁵ the Criminal Court of Baltimore of assault with intent to rob and common-law assault and sentenced to ten years in the Maryland Penitentiary. He contends on this appeal that the lower court committed prejudicial error in admitting certain hearsay evidence at his trial. The pertinent facts are these: On February 1, 1966 at approximately 2:30 p.m., two men entered a liquor store owned and operated by Herman Levin and his wife, both of whom were present in the store at the time.

One of the men, brandishing a gun, said “Don’t move, stand where you are,” while the other man, later identified as the appellant, went behind the counter searching for money. Mr. Levin attacked the man holding the gun, after which appellant kicked Levin and hit him over the head with a bottle. The robbers then fled. Herman Levin testified that he identified appellant from police photographs shown to him, and also at a police lineup as one of the men that had attempted to rob him.

He also identified appellant at the trial. Detective George Montgomery, testifying for the State, corroborated the fact that Mr. Levin identified the appellant at the police lineup, as well as from the police photographs. Over appellant’s objection, Detective Montgomery was permitted to testify that Mrs. Levin also viewed the police lineup and positively identified the appellant. The appellant, testifying on his own behalf, denied any knowledge or participation in the crime.

We think appellant’s objection to Detective Montgomery’s testimony that Mrs. Levin identified appellant as one of the perpetrators of the crime at a police lineup should have been sustained and that it was clear error to admit the testimony into evidence. While it is true that testimony of an extrajudicial identification is generally admissible as an exception to the hearsay rule, where the identification was made under circumstances precluding any reasonable suspicion of unfairness or unreliability, Johnson v. State, 237 Md. 283 , this is not a case like Basoff v. State, 208 Md. 643 , where the court held admissible the testimony of a police officer that a witness in the case had made an extrajudicial identification of the accused. Nor is ⁷⁶ this case like Judy v. State, 218 Md. 168 , where the witness who had made an extrajudicial identification of the accused was permitted to testify in court as to such identification; neither is this case like Bulluck v. State, 219 Md. 67 , where a police officer was permitted to testify concerning an extrajudicial identification made by the complaining witness and previously testified to by that witness, or like Proctor v. State, 223 Md. 394 , where a police officer was permitted to testify that the victim made an extrajudicial identification of the accused, even though the victim did not testify to such identification, where he was a witness at the trial and was, therefore, available “and could have been recalled and questioned about it.” In Johnson v. State, supra, the court found no error in permitting testimony by a police officer that a witness in the case made an extrajudicial identification of the accused, where that witness did not testify to such identification, but was