Johnson v. State

Menchine, J., delivered the opinion of the Court. Isaac Joseph Johnson, convicted of assault with intent to murder by a jury in the Circuit Court for Prince George’s County, was sentenced to imprisonment for fifteen years. He makes two contentions on appeal: (1) that his motion for acquittal should have been granted; and (2) that because of earlier taint by impermissibly suggestive photographs, the trial judge improperly permitted two witnesses to make a judicial identification. Legal Sufficiency of the Evidence At about 3:00 a.m. on November 11, 1971, Blessie Griffin awakened to find a man in her bedroom.

He seized her and thrice threatened to kill her if she “hollered.” Undissuaded by the threats, Mrs. Griffin cried out for help. Her son, Leon H. Griffin, rushed to his mother’s assistance and seized the intruder. In an ensuing struggle, Leon H. Griffin was cut on ⁵⁴³ the arm and stabbed three times in the abdomen. Both mother and son made judicial identification of the accused.

Their testimony concerning the incident and their identification of the appellant, if admissible and if believed, was legally sufficient to convict. Wilkins v. State, 5 Md. App. 8, 21 , 245 A. 2d 80, 87 . An intent to murder may be inferred from his direct threats to the mother and from his subsequent repetitive stabbings of the son. Smith v. State, 6 Md. App. 114, 118 , 250 A. 2d 272, 275 .

The Judicial Identifications Appellant objected when Blessie Griffin was called as a witness. It was contended that a proposed courtroom identification of the accused was unconstitutionally tainted by prior impermissibly suggestive photographic identification. The Supreme Court in Simmons v. U. S., 19 L. Ed. 2d 1247 , 390 U. S. 377 , laid down the legal principles by which the validity and effect of pre-trial photographic identifications should be tested, saying at page 1253 [384]: “The danger that use of the [photographic] technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement.

Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 US 293, 301-302 , 18 L ed 2d 1199, 1206, 87 S Ct 1967 , * * * ” ⁵⁴⁴ In Smith and Samuels v. State, 6 Md. App. 59 , 250 A. 2d 285 , this Court considered Simmons', explicated its relationship to the Wade, Gilbert, Stovall trilogy; 1 and established the procedures to be followed upon challenge. The- trial judge conducted a suppression hearing in accordance with the mandate of Smith and Samuels, supra, at which testimony by Blessie Griffin, Leon H. Griffin and Detective E. W. Jones of the Prince George’s County Police was; taken. In the course of that hearing, proposed identification of the accused by Leon H. Griffin also was brought within the purview of the motion to suppress, by added challenge to that witness's proposed courtroom identification.

Although there was some confusion in the course of the testimony of Blessie Griffin and Leon H. Griffin, both rejected the contention that their proposed identification of the accused in the courtroom was influenced by photographs of the accused. Both testified that they were able to identify the accused from personal observations. Leon H. Griffin said that he could do so as the result of a face to face confrontration in the lighted hallway of his home. Mrs. Griffin said she chose the photograph of the appellant because of her observations of that struggle; because she witnessed the subsequent departure of her assailant from her home and because she had previously seen the man in her yard.

She explained that she had given the latter information to the police before viewing the photographs. Both mother and son acknowledged that their assailant had worn a navy blue and white bandana mask, but each made clear that selection of the photograph of the appellant from a group of six was not influenced by police direction or by any suggestive process, but was based upon personal observations of his head and face. Selection by each, of the appellant’s photograph, separately was made within hours after the incident. ⁵⁴⁵ During cross-examination by appellant’s counsel, Mrs. Griffin gave the following testimony: “Q That is why you picked that one out, because you recognized his face? A And his walk, too, in walking.

And I was looking at the side. He had on this mask. I was just stunned, but I noticed the side of his head and the heavy eyelashes, the mask still on, and the way — you couldn’t deny him no way; no kind of way.” Leon H. Griffin in his testimony at the hearing said: “Q How many photographs did you look at? A I didn’t need but one to look at.

Q But how many did you view all together? A It was about 4 or 5 different people. Q How were they arranged, if you know? Separate photographs?

A Yes. Q Who showed you the photographs? A This fellow at the robbery squad. I don’t recall his name.

Q And when you viewed those photographs, what, if anything, did the detective say? A Nothing. He just asked me could I identify the man. THE COURT: Could you what?

THE WITNESS: Could I identify the individual. By Mr. Sothoron: Q Did he point to anybody in particular? A Nobody. Q Did anybody point to any photograph?

A Nobody. Q Did you make a selection? A I made my own selection. Q Who did you pick? ⁵⁴⁶ A I picked that man right there.

Q Why did you pick him? A Because that was the man. I could tell even with that handkerchief around his mouth. I can always tell by the eyes of any man.

To be an Army man you would do it that way.” Detective Jones testified that he separately showed Blessie Griffin and Leon H. Griffin six photographs; that the photographs were placed face up on a desk in two rows of three. Each was told not to pick up the photographs but asked to look at the photographs to see if they recognized their assailant. He said no suggestion was made to mother or son and that the five other individuals depicted in the six photographs would not tend to produce identification of the accused. He said that both the mother and son selected the photograph of the appellant without hesitation.

The principal basis in this Court for the contention that judicial identification was tainted is the circumstance that appellant alone was wearing a blue jacket. At the suppression hearing this point was not stressed in cross-examination. The point was not argued to the trial judge at all. At the substantive trial the State did not offer the prior identification as substantive evidence.

Mrs. Griffin, however, was asked on cross-examination whether she had made identification of the appellant’s photograph because of his clothing. Her reply was: “I didn’t give the clothing a thought * * At the conclusion of the suppression hearing the trial judge said: “I think there is some confusion here about photographs. I think both witnesses have testified in confusion. The only thing that there is no confusion about is the fact that when the six photographs were laid out in front of them the night of the incident, the Court is convinced there was no suggestion at that time by anyone as to whom they should pick by looking at the composite of the six photographs that evidently were shown to the victims.

The layout, the physical features of all of the photographs, they don’t appear to im ⁵⁴⁷ permissibly suggest anything. They are all Negro males, about the same build, different haircuts. So while there is some confusion as to what pictures the witnesses today testify they saw, and there is some confusion as to whether it was a composite or individual pictures, there is no confusion, by way of the police officer’s testimony, that the pictures