Jackson v. State

Orth, J., delivered the opinion of the Court. THE MOTION FOR DISMISSAL OF THE INDICTMENTS THE PRELIMINARY HEARING AND ASSISTANCE OF COUNSEL The initial question presented by Robert K. Jackson, Jr. on appeal from the judgment entered upon his conviction by a jury in the Criminal Court of Baltimore of the robbery with a deadly weapon of Henry Woodby on 1 February 1970 involves his right to assistance of counsel at the preliminary hearing on the charge. At the time ⁵⁸⁸ the hearing was conducted 1 the law of this State was that an indigent accused did not have a constitutional right to have counsel appointed to represent him at a preliminary hearing because it was not ordinarily a critical stage of the judicial process. Mercer v. State, 237 Md. 479 ; Coleman v. State, 8 Md. App. 65 . 2 However, on 22 June 1970, in Coleman v. State of Alabama, 399 U. S. 1 , a majority of the Supreme Court made clear that the assistance of counsel at a preliminary hearing as conducted in Maryland was constitutionally mandated. 3 It left unanswered the question of the application of the rule it enunciated, but we held in Billings v. State, 10 Md. App. 31 that it applied only to cases in which the preliminary hearing was held on or after 22 June 1970.

The indictment here came on for trial on 29 July 1970. 4 The jury were empaneled and sworn. Out of their presence defense counsel said he had a motion to make. He told the court that he had been privately retained by Jackson and that when Jackson was taken before the Municipal Court for the preliminary hearing he requested the presence of his counsel. The judge “told him that he did not need counsel at the preliminary hearing, that it was not a critical stage of the proceedings and proceeded with the preliminary hearing over his objections and without notifying counsel and giving counsel the opportunity of being present.

On the basis of the denial of the ⁵⁸⁹ right to counsel at that time the defendant was confronted with the witnesses who are against him in this case (sic). They are witnesses who identify him as being the perpetrator of the offenses named in these indictments, and it is my contention, and his contention at this time that prejudice has resulted to him as the result of the failure of the Municipal Court to permit him to have counsel.” 5 Counsel moved to dismiss the indictments. He offered to present testimony on the motion. The court denied the motion on the basis that under the authority of Billings v. State, supra, Coleman v. Alabama, supra, was not applicable.

The enjoyment of the right to have “the Assistance of Counsel for his defence” in all criminal prosecutions was bestowed on an accused by Amendment VI to the Constitution of the United States. Article 21 of the Declaration of Rights of the Constitution of Maryland provides that in all criminal prosecutions, “every man hath a right * * * to be allowed counsel.” Even before Gideon v. Wainwright, 372 U. S. 335 (1963) held that the sixth amendment right to counsel flowed through the fourteenth amendment to the states and subsequent Supreme Court opinions applied the right to more and more stages of criminal proceedings, it was made clear that the Maryland constitutional right to be allowed counsel, although not considered as aimed to compel the State to provide counsel for an accused, was intended to do away with the common-law rules of England which denied representation by counsel. Raymond v. State, 192 Md. 602 . And it seemed that the right extended beyond the actual trial.

The Court said in Crooker v. California, 357 U. S. 433 , 439-440: “[S]tate refusal of a request to engage counsel violates due process not only if an accused is deprived of counsel at trial on the merits, * * * but also ⁵⁹⁰ if he is deprived of counsel for any part of the pretrial proceedings * * *.” But prior to Coleman it was consistently held that the right to counsel did not accrue at a preliminary hearing and it was not considered a pretrial proceeding within the contemplation of Crooker . As it was not such a pretrial proceeding as would entitle an accused to assistance of counsel, the conduct of it before Coleman in the absence of even retained counsel would not effect a violation of the constitutional right to counsel or a denial of due process of law more than the taking of a confession without permitting the confessor to consult with his lawyer effected a denial of constitutional rights prior to Escobedo v. State of Illinois, 378 U. S. 478 , the holding 6 in which also was not retroactively applied. Johnson v. State of New Jersey, 384 U. S. 719, 733 . Thus the conduct of the hearing here in the absence of Jackson’s counsel did not render that proceeding illegal.

The issue was presented within the frame of reference of a possible taint of the judicial identifications of Jackson as the criminal agent. As the absence of counsel per se did not render the confrontation at the preliminary hearing illegal, it could not taint the judicial identifications. And we point out that even if the confrontation at the preliminary hearing was illegal, the sanction would not be a dismissal of the indictments, but, if properly raised, the invoking of the exclusionary rules of United States v. Wade, 388 U. S. 218 and Gilbert v. State of California, 388 U. S. 263 , as set out in Smith and Samuels v. State, 6 Md. App. 59 at 65 . Therefore, the motion to dismiss the indictments was properly denied.

THE SUFFICIENCY OF THE EVIDENCE Woodby was the bartender at Jay’s Bar when the robbery occurred. “There were four men came in at the same ⁵⁹¹ time, and so they sit at the bar for about, oh, 10 or 15 minutes. They drank a draught beer, and then one man comes back, he whips a gun out, he says, ‘This is it.’ * * * I was close to the register * * *. I reached over with my left hand, and I grabbed the gun barrel.” Wood-by saw the man’s face. He shoved the robber and the robber fell to the floor.

He got up “real fast, he comes over the bar, and so we got into a wrestle and we knocked the cash register down. The cash register fell almost on me, on my legs, and then he got the advantage of me, put the gun up to my head, and so I told a friend of mine, Mr. Woosley * * * to give him the money, [in the register] and so he did.” Woodby identified Jackson as the robber. Maynard Woosley’s testimony was in substance the same as that of Woodby as to the circumstances of the robbery. But he was unable to identify the robber in court — “My eyes aren’t that good.” Tyrone Green was in the bar when the robbery was committed.

He made a positive in-court identification of Jackson as the robber. There was no doubt in his mind “as to him being the man.” On cross-examination it was elicited that the police showed him pictures of Jackson. On re-direct he said a detective brought five or six photographs to his house the next day. One of them was of Jackson.

He picked that out because he recognized Jackson as the robber. No one made any suggestions to him which photograph to select. Irene Calloway lived about five doors from the bar. She was sitting on her steps and about the time of the robbery she saw a man running from the side door of Jay’s Cafe “with his hand down his coat.” He was about 12 feet from her.

She made a positive judicial identification of Jackson as that man. “I looked at his face right good, real good.” There was no doubt in her mind that the man she saw was Jackson. We have absolutely no difficulty in determining that this evidence was sufficient in law to present the case to the jury. The jury could fairly find beyond a reason ⁵⁹² able doubt from it that Woodby had been robbed and that Jackson was the robber. Weight to be given the identifications was for the jury, Thompson v. State, 4 Md. App. 31 , and alleged inconsistencies in the testimony of the State’s witnesses went to the weight to be given it, Johnson v. State, 4 Md. App. 648 .

See Williams v. State, 4 Md. App. 558 ; Wilkens v. State, 5 Md. App. 8 ; Barnes v. State, 5 Md. App. 144. Thus on the evidence admitted the court did not err in denying the motion for judgment of acquittal. Williams v. State, 5 Md. App. 450 . However, we must next consider the propriety of the admission of the evidence of identification.

After Irene Calloway testified, the State turned to the proof of the offenses charged in indictments 942, 943 and 944 concerning robberies committed about four hours after the robbery of Woodby. After receipt of this evidence defense counsel requested and received permission to approach the bench. Out of the presence of the jury he said: “Your Honor, I am going to at this time make a motion that all eye witness identification on the part of all witnesses be excluded from the record on the grounds that it was the result of an illegal, improper confrontation of my client at a preliminary hearing without my presence and without the opportunity for me to cross examine the individuals, and also because it is improper under Wade Vs. United States wherein the improper confrontation was brought out.

I would suggest to the Court that the identification of these witnesses is a direct result of improper showing of pictures and photographs, as well as an improper confrontation at a preliminary hearing, and, for that reason, I would move that all of their testimony be excluded from the record.” It is patent that to this point the judicial identifications of Jackson as the robber of Woodby had come into evi ⁵⁹³ dence unchallenged. We set out in Smith and Samuels v. State, supra, 67-70 the methods of challenging evidence of identification and the procedure to be followed when it is properly challenged. We have applied the rules there enunciated in subsequent cases. In Jones v. State, 9 Md. App. 455 , certiorari denied, Court of Appeals of Maryland, 6 July 1970, we held flatly that the question of the admissibility of a judicial identification was not before us because it came in without objection made when it was offered, even though a motion to exclude it had been denied at a pretrial hearing.

In Townsend v. State, 11 Md. App. 487 , we applied Jones in holding that the admissibility of evidence of identification was not properly before us. At 489. Here the