Johnson v. State

Anderson, J., delivered the opinion of the Court. Appellant, Alfred Jerome Johnson, was tried on March 13, 1969 in the Criminal Court of Baltimore by a jury, .Judge Basil A. Thomas presiding, for robbery with a deadly weapon. He was convicted and was sentenced to twenty years under the direction of the Department of Correctional Services. Appellant presents seven questions on appeal: I Was the conduct of the prosecuting attorney so prejudicial as to deprive the appellant of a fair trial ?

A. Did the prosecuting attorney ask leading questions and repeat the answers of the State’s witnesses and thus unfairly prejudice the jury against the appellant? B. Did the conduct of the prosecuting attorney in displaying and inquiring about a shotgun that was not used in the robbery unfairly prejudice the jury against the accused? C. Did the closing argument of the prosecuting attorney comment on the failure of the appellant to testify, thus violating the accused’s privilege against self-incrimination ? II Was the photographic identification procedure used by the State’s attorney so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentifications ?

Ill Did the State’s attorney fail to lay a proper foundation for the introduction of hearsay testimony concerning various incriminating ³³¹ statements made by accomplices in the presence of the defendant? IV Does the testimony of one who is not an accomplice need corroboration before it is capable of supporting a conviction if by testifying the witness may gain leniency in pending criminal matters ? V Did the introduction of evidence relating to a trip made by two codefendants shortly after the robbery unfairly prejudice the jury against the appellant? VI Did a comment of the trial judge concerning the admissibility of part of a State’s witness’s testimony unfairly prejudice the jury against the appellant?

VII Was the appellant deprived of fundamental fairness and thus deprived of his right to a fair and impartial trial ? The testimony adduced at trial revealed that on Friday, June 21, 1968 at approximately 1:30 p.m. the Equitable Trust Company Bank located at 3121 St. Paul Street in Baltimore was robbed by four masked Negro men and $12,125.63 was taken. The men fled to the rear of the bank, entered a white Chevrolet driven by a fifth man, and left the scene. Two of the robbers, Anderson Caison and Charles Cofield, testified on behalf of the State and identified the appellant as one of the other persons involved in the robbery.

I Appellant first contends that the conduct of the State’s attorney was such that it constituted prejudice against him and thus denied him a fair trial. Appellant bases this contention on three separate grounds: (A) The prosecution’s use of leading questions and repetition of witnesses’ answers; (B) the prosecution’s references to and display of a shotgun not used in the robbery; and (C) an alleged reference by the prosecution to the appellant’s failure to testify. ³³² A. A leading question generally is a question which 'suggests to the witness the specific answer desired or a question admitting of being answered by a simple “yes” or “no”. 3 Wigmore, Evidence, §§ 769 and 772. See also Wolf v. State, 143 Md. 489 ; Boone v. State, 2 Md. App. 80 . Appellant has referred us to twenty-two instances in the trial record which he contends constituted leading questions.

Having reviewed the record, we find twelve of these questions to be not leading within the established definition. Seven other questions were never answered because objections thereto were sustained, one was withdrawn, and one was never answered by the witness. The' only question which was leading and the answer received in evidence was asked to Anderson Caison and concerned whether the car he drove on the day of the robbery was equipped with a tachometer. The allowability of leading questions is within the' sound discretion of the trial judge.

Hubbard v. State, 2 Md. App. 364. At trial the court requested the State’s attorney to refrain if possible from asking leading questions. We cannot say that the trial judge abused his discretion in permitting one leading question to go to the jury. Appellant also contends he was prejudiced by the State’s attorney’s repetition of the witnesses’ responses.

Appellant has referred us to twelve instances in the trial record which he contends constitute repetition of answers. From the record We find nine of these statements to be not repetitive. The other three statements are merely summations of prior testimony made in the course of a trial encompassing more than 500 pages of transcript and they do not constitute prejudice to the appellant. In a trial of the length of the instant one it is necessary at times for the State’s attorney to keep the evidence in proper perspective.

We cannot say that the trial court abused its discretion in permitting this recapitulation of testimony. ³³³ B. Appellant contends that the display of and reference to a shotgun which was not used in the robbery was prejudicial to him. His claim apparently is that it was not relevant to the charge. If extraneous matter or evidence explains the actions and movements of the accused, either before or after the crime, it is relevant and thus admissible. MacEwen v. State, 194 Md. 492 .

Any fact which supplies a motive for the crime or which constitutes a preparation for the crime is admissible. Meyerson v. State, 181 Md. 105 . The testimony adduced at trial showed that appellant had been planning to use the shotgun in the robbery, that a pin was missing therefrom making the gun inoperable, and thus the gun was not taken by Johnson to the scene of the robbery. The testimony revealed that one of the other participants picked up the gun, after the robbery, from the home of Mary Johnson where it had been left by the appellant prior to the robbery.

We think the testimony as to the shotgun was properly admitted as it revealed an act of the appellant in preparation for the crime. In addition, it was equally relevant in that it tended to establish the reliability and credibility of the testimony presented by other witnesses. G. Appellant next contends that the trial court erred in refusing to grant a mistrial for alleged improper comment by the State’s attorney concerning the appellant’s failure to testify. The appellant failed at the trial to invoke Rule 32 of the Rules of the Supreme Bench of Baltimore City and thus the closing argument of the State’s attorney which contained the alleged prejudicial remark does not appear in the trial transcript.

In addition, the appellant has not sought to supply the omission in the record as provided for in Maryland Rule 1027b. It is the responsibility of the appellant under Md. Rule 1026 c 2 to include in the record any matter which he wishes the Court to review on appeal. See White v. State, 8 Md. App. ³³⁴ 51. What does appear in the record is the appellant’s motion for mistrial which states: , ....... “Well, I think that perhaps the comment at the end of his peroration to the effect, that ‘if the defendant was not at the scene of thé' báhk robbery from the day of the robbery, whére was' he,’ amounts to a violation of a rule in this State which says that they cannot comment on the'&ccused failing to take the stand.” ' " ' Even assuming that the. comment alleged was. made, .the trial judge was not in error in denying the motion, .for mistrial.

In King v. State, 190 Md. 361 , the State’s .attorney during argument stated, “There had never .been any evidence to refute the fact that these illegal machines were in Mr. King’s place or' not -.” Objection was made to the comment which was overruled. The Court of Appeals stated in 190 Md. at 374 : “There is nothing to suggest that the State’s attorney was commenting on his failure to testify. We are of opinion that the statement by the State’s attorney was not a violation of the Constitutional provision or statute law. Davis v. State, 168 Md. 10 .” In the .instant case there is nothing to indicate that the State’s attorney was commenting on the defendant’s failure to testify, as he was merely reviewing the undisputed testimony of the State’s witnesses.

As was stated in Dunlop v. United States, 165 U. S. 486 at 492 , “if every remark made by counsel outside of' the' testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptat'ibh.” "We find no merit to appellant’s contention. II / After voir dire had been completed, and prior to the calling of the first witness, the appellant made a motion seeking to have the court prohibit the use by the State for identificátion purposes of two sets of photographs. ³³⁵ The court stated that it would deny the motion if the. State could prove that the photographs were shown to prospective witnesses under proper surroundings. Assistant State’s Attorney Robert Stewart was called as a witness on the motion.

He testified that on several occasions he had shown the photographs to prospective State’s witnesses. On February 20th or 21st, 1969, he and Sergeant Salvatore Corona of the State’s Attorney’s Investigative Division interviewed James Wilson. Wilson selected one of the photographs shown him as being one of the persons he had seen leaving the Equitable Trust Company on June 21, 1968. The photograph was identified as Franklin Alonzo Lewis, one of the codefendants.

Mr. Stewart testified that there was nothing done to draw Wilson’s attention to the particular photograph. He further testified that Wilson was shown the photographs a second time with the same result. Mr. Stewart stated that in showing the photographs he was careful to avoid focusing on a particular photograph. If a witness had previously identified a photograph and it appeared on the top of the stack it was moved to the middle of the stack.' Mr. Stewart testified that he and Sergeant Corona had also shown a series of photographs to Mrs. Fanny Buck-son from which she selected the photograph of Alfred Jerome Johnson.

He stated that there was nothing done to draw Mrs. Buckson’s attention to any particular photo-' graph. The court found from the testimony that the procedure as outlined did not give rise to a very substantial likelihood as to irreparable misidentification and denied the defense motion. At trial James Wilson testified that on June 21, 1968, at approximately 1:30-2:00 p.m., he was standing on 32nd Street in Baltimore behind the Equitable Trust Company Bank located on St. Paul Street. As he stood there, three Negro men ran out of the bank, jumped into a white car, in which a fourth man was seated, and the car sped away.

At trial he was handed a group of photographs and stated that he had seen the group of photographs five or six times prior to trial. Over defense objection the photo ³³⁶ graphs were marked as State’s Exhibit 4A through 4K. Wilson then identified photograph 4B as being a picture of one of the men (Lewis) he had seen run from the bank and get into the back seat of the white car. On cross-examination he stated that he had been shown the photographs one or two times by Sergeant Corona and four or five times by Assistant State’s Attorney Robert Stewart.

He had seen the photographs twice in the last week before trial. In proceedings in chambers, subsequent to Wilson’s testimony, the appellant made a motion for a mistrial based on an allegation, that the State had rehearsed Wilson’s selection of photograph 4B. The court denied the motion for the same reasons he had denied the pretrial motion to suppress the photographs. Fanny Buckson testified that at 4:30 p.m. on June 21, 1968 she saw the appellant and Anderson Caison alight from a taxicab and enter Mary Johnson’s apartment at 2433 E. Eager Street.

She engaged in a conversation with the appellant before he entered the apartment and saw him leave the apartment two or three minutes later and re-enter the taxicab. She stated that prior to the June 21st encounter the appellant was a stranger to her. She made an in-court identification of the appellant as the man she had seen on June 21st. She stated that she based her identification on the fact that the appellant was the same size, same complexion, and had the same features as the man she talked to on June 21st.

She testified that she had been shown photographs in July of 1968, again in January 1969, and again on the day of trial. She further stated that each time she was shown photographs she was shown “a whole group”, and that she would not have needed to have seen the photographs to have identified appellant at trial. Appellant contends on appeal that the procedure used in the pretrial viewing of photographs by Mrs. Buckson and Mr. Wilson was prejudicial to his rights. Appellant relies on Simmons v. United States, 88 S. Ct. 967 , in which the Court held that conviction based on eye-witness iden ³³⁷ tification at trial following a pretrial review of photographs would only be set aside if “that photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 88 S. Ct. at 971 .

The Court found that each case must be decided on its own particular set of facts. In Bailey v. State, 6 Md. App. 496 , the identification witness was shown a group of six or seven photographs on more than one occasion and had been shown the photographs again on the day of trial. The witness testified that the Assistant State’s Attorney did not in any way indicate to her which one to pick out. In ruling on the admissibility thereof, this Court stated at page 506-7: “Although it appeared that the witnesses had been shown photographs by the police at some time after the crime there was no showing or allegation that the procedure then followed was in any way improper.

Nor do we see anything improper in the State or defense counsel discussing the case with the State’s witnesses in a fair manner, even on the morning of the trial, to be aware of the nature of their testimony. The showing of the photographs to the witnesses, in the circumstances the Assistant State’s Attorney did here, was not per se improper .....the lower court could have properly found the viewing of the photographs, on the totality of the circumstances, was not in fact so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See also Nance v. State, 7 Md. App. 433 ; Joyner v. State,. 7 Md. App. 692 ; Gibson v. State, 5 Md. App. 320 ; Thompson v. State, 6 Md. App. 50 . Here appellant