Jones v. State

Orth, J., delivered the opinion of the Court. ESTABLISHING CRIMINAL AGENCY The criminal agency of an accused may be proved directly, as for example by his identification by the victim, Thomas v. State, 8 Md. App. 5 , or an eyewitness, Pinkney v. State, 9 Md. App. 283 , or circumstantially, as for example by his possession of stolen goods.* 1 The identification of an accused by the victim or an eyewitness may be made judicially or extra judicially. A judicial identifi ⁴²³ cation is admissible if it was not tainted by an illegal extrajudicial identification or even if there was an illegal extrajudicial identification, upon the State showing by clear and convincing evidence that the judicial identification had an independent source. An extrajudicial identification is usually by a confrontation of the accused by the prospective identifying witness, as at a line-up, or by the viewing of photographs by such witness.

An extrajudicial identifying procedure is legal if the accused has the assistance of counsel when required, United States v. Wade, 388 U. S. 218 and Gilbert v. State of California 388 U. S. 268 , and, independent of any right to counsel, when the procedure is not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification so as to be a denial of due process of law, Stovall v. Denno, 388 U. S. 293 ; Simmons v. United States, 390 U. S. 377 . Evidence of the identification of an accused at an illegal extrajudicial procedure is per se to be excluded, Gilbert at 272-274. However, the improper admission of a judicial identification or of evidence of an extrajudicial identification is not prejudicial error if the introduction was harmless error beyond a reasonable doubt. Wade at 242 ; Gilbert at 274.

Evidence of an identification at a legal extrajudicial procedure is admissible as corroborative of a judicial identification, and, even absent a judicial identification, as substantive evidence of criminal agency. It may be introduced through the out-of-court declarant or through third parties when the out-of-court declarant is present at the trial and subject to cross-examination. Smith and Samuels v. State, 6 Md. App. 59, 63-67 . When identification evidence is challenged, the burden is on the accused to show prima facie that the extrajudicial procedure was illegal.

If he meets this burden the State must show by clear and convincing evidence that it was legal. There is no obligation on the State in introducing a judicial identification to produce any evidence as to an extrajudicial identification except as it may deem advisable to overcome a prima facie showing by the accused ⁴²⁴ that the extrajudicial identification procedure was illegal. The question of the legality of the extrajudicial identification procedure is solely for the trial court as is the question whether an illegal extrajudicial procedure tainted a judicial identification. But when the judicial identification is ruled admissible, despite the illegality of an extrajudicial identification, the accused may nevertheless cross-examine the State’s judicial identifying witness at the trial of the general issue and introduce evidence with regard to the illegal extrajudicial procedure as part of his case.

Such evidence so elicited goes to the weight of the judicial identification and the credibility of the identifying witness, properly matters for the trier of fact. Smith and Samuels, supra, at 67-70; Melia and Shelhorse v. State, 5 Md. App. 354 . THE INSTANT CASE Garland Thomas Jones (appellant), John Michael Lee, William Jamison, Jr., and Charles Franklin Simpson were jointly indicted, charged with the robbery of George Schmidt with a deadly weapon and related offenses. Appellant, Lee and Jamison were jointly tried at a bench trial in the Criminal Court of Baltimore.

Appellant was convicted of the robbery with a deadly weapon. 2 Appellant challenged evidence of identification by a motion to suppress. The court received evidence on the issue subject to exception and at the close of all the evidence denied the motion. The State proved the corpus delicti of the offense by the testimony of the victim but did not call upon him to identify the felons. When the indictment came on for trial, defense counsel requested that the defendants be seated “somewhere in the courtroom, other than the front bench.” The court said it would allow it as long as it did not interfere with the security of the courtroom; “Except today they will not be in a position to elect where they will sit.

I will leave it to the jail guard.” Al ⁴²⁵ though the record is not clear, it seems that three men among the spectators were seated on the front bench with the three defendants. 3 Eddie Witt, an eyewitness to the crime, testified for the State. He was asked by the State to look around the courtroom. “I want you if you can, if you can see these people [the robbers] to identify them and point them out.” The transcript reads: “A. This one right here. Q. Which gentleman are you pointing to ? Which gentleman are you indicating?

A. This gentleman right here. Q. Tell us what he has on. A. He has, he had on a black sweater. Q. I mean can you tell us what he has on today?

A. What he has on today? He has on a green shirt — wait a minute, to be sure, this gentleman up there on the front looks more like — Q. Could you walk around and point to this individual. Take your time. * * * THE WITNESS: I think it’s this man here. THE COURT: Stand up.” The man identified was appellant.

On cross-examination Witt was asked: “Did you ever have occasion to identify anybody else?” He said he had; “down the police lineup.” Defense counsel then noted that the witness had said he thought appellant was the man and asked: “Are you absolutely certain this is the man ?” The transcript reads: “A. I’m certain that’s the man. Q. You’re not thinking now? A. I’m not thinking.” It was elicited from the witness that he had not been to a preliminary hearing or to the lineup in this case. On further cross-examination the witness reaffirmed that he was certain appellant was the man he saw robbing Schmidt and it was clear that his identification was posi ⁴²⁶ tive.

It was also brought out that he had not seen appellant from the time of the robbery until the identification in court; that he had not gone to a lineup in which appellant appeared; and that he had not viewed any photographs of appellant in an identification procedure. However the defense thereafter produced evidence through testimony of police officers that Witt had been shown ten