Joyner v. State

Orth, J., delivered the opinion of the Court. Twenty-eight indictments came on for trial in the Criminal Court of Baltimore under which the appellant was charged with offenses against the person and property of some eighteen women and a man. Upon trial by the court he was convicted of the rape (indictment no. 4990) and petit larceny of the goods (indictment no. 4991) of Barbara Ann Gregory; of the rape (indictment no. 4899) of Johnnie Mae Jones and the daytime breaking of her house with intent to steal (indictment no. 4997) ; of perverted sexual practice with (indictment no. 4998) and the armed robbery of Myrtle Brown (indictment no. 4902) ; of the armed robbery (indictment no. 4898) of Hattie Cockrell; of the rape (indictment no. 4901) of Gloria A. Lee and, in connection with that offense, of being a rogue and vagabond (indictment no. 4996). By the sentences imposed the appellant was to be imprisoned for the balance of his natural life plus thirty-five years. 1 THE IN-COURT IDENTIFICATIONS The appellant contends that the judgments as to those crimes involving Gloria A. Lee, Hattie Cockrell and Myrtle Brown should be reversed because his pre-trial motion to exclude the in-court identifications of him as the criminal agent was not granted.

The grounds for the motion were that a lineup at which he was confronted by the witnesses was illegal and that the witnesses had no independent source of their identification of him. The motion was not determined prior to trial. On the day of trial defense counsel brought the motion to the attention ⁶⁹⁵ of the court with the suggestion that the matter be deferred for determination at the trial of the general issue. Although it appeared that the State desired that the issue be determined preliminarily, the court followed the suggestion of the defense.

See Md. Rule 725d. As part of its case the State adduced the positive in-court identification of the appellant by Gloria Lee, Myrtle Brown and Hattie Cockrell, each of them asserting that the appellant was the perpetrator of the crimes against her. Geraldine McDowell also made a positive in-court identification of the appellant as the person who robbed Hattie Cockrell. The State offered no evidence of an extra-judicial identification of the appellant.

See Smith and Samuels v. State, 6 Md. App. 59, 67-70 . On cross-examination of Gloria Lee, Myrtle Brown, Hattie Cockrell and Geraldine McDowell, however, defense counsel elicited that each of them had attended a lineup at which she had identified the appellant. The defense offered two witnesses on the limited issue of the legality of the lineup- — the appellant and Detective Sergeant George C. Shriner who conducted it. The substance of the appellant’s testimony was that when the police informed him on the day he was arrested that he would be placed in a lineup about 2:00 P.M. that day he made abundantly clear to them that he desired the presence of his lawyer at the lineup.

He telephoned Roland Walker, Esq. — “at this particular time he was supposed to be representing me” — and on being informed that Walker would be in court and could not attend at the time the lineup was scheduled, so informed the police who told him, “Well, you go in a lineup at 2:00. You are going in a lineup.” The police called several people, informing them there would be a lineup at 2:00 P.M. The appellant called Walker again and was told, “You can’t do nothing about it. (The police) will keep on insisting that you go. Just keep on insisting that you are not going to go in the lineup.” He requested a postponement of the lineup because his lawyer could not be there and was told there would be no postponement, “The lineup was going on as scheduled.” He kept insisting ⁶⁹⁶ that he did not.want to appear in a lineup without a lawyer to the moment he was taken to the door of the lineup room when he was pushed in and told, “You are going in there.” The lineup was held at 3:00 P.M. which the appellant said was about three hours after he was taken in custody.

He did not sign a waiver of his right to counsel. On cross-examination he said he did not request another lawyer after he learned that Mr. Walker could not be present. The police “lineup sheet”' was introduced in evidence through Sergeant Shriner. It showed that the lineup was held at Detective Headquarters at 3:00 P.M. on 27 September 1967; that five men were in the lineup, giving their descriptions and describing their clothing; that twelve women had viewed the lineup; that nine of them, including Gloria Lee, Hattie Cockrell, Myrtle Brown and Geraldine McDowell, had made a positive identification of the appellant and the time each identification was made; and that the position of the appellant in the lineup had been changed after the appearance of the ninth witness.

Shriner described the room in which the lineup was held and the manner in which it was conducted. On cross-examination it was elicited that he had advised the appellant as to his right to the presence of counsel at the lineup, reading from “a standard form, * * * that he may be represented by counsel, and if he did not have a counsel we would have one appointed for him. He stated to us that a Mr. Walker would represent him. * * * He called Mr. Walker. Mr. Walker was notified that he was going to be in a lineup at such-and-such a time.

And this is what we indicated to him after reading the waiver to appear in a lineup. Mr. Walker was duly notified by us that his client would be in a lineup. He made the first call and at a later time a second call was placed to Mr. Walker. Mr. Walker also advised him.” Shriner stated that counsel representing the appellant was not present at the lineup.

On this evidence the court denied the motion to exclude the in-cóurt identifications, holding, as we construe its comments, that the lineup was legal. ⁶⁹⁷ United States v. Wade, 388 U. S. 218 affects the instant case as the lineup was held after 12 June 1967, Stovall v. Denno, 388 U. S. 293 , and as its rules and those of Gilbert v. State of California, 388 U. S. 263 , apply to a lineup conducted before indictment as well as after indictment. Palmer v. State, 5 Md. App. 691, 696 . Thus the appellant had the absolute constitutional right to the presence of counsel at the lineup. We said in Palmer , at 693, “The basic principle enunciated in Wade is that a lineup is a critical stage of the prosecution at which the accused is as much entitled to aid of counsel as at the trial itself. 388 U. S. 236 .” 2 Of course, an accused may waive this right.

It is stated in Wade , at 237, “Counsel’s presence should have been a requisite to conduct of the lineup, absent an ‘intelligent waiver’. See Carnley v. Cochran, 369 U. S. 506 .” Carnley made clear that when the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. 369 U. S. at 513 . The standard of proof of waiver of the right to counsel is that laid down in Johnson v. Zerbst, 304 U. S. 458 , and the principles declared in Johnson are equally applicable to asserted waivers of the right to counsel in state criminal proceedings. 369 U. S. at 515 . The Court said in Johnson , “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” 304 U. S. at 464 .

The right must be competently and intelligently waived. See Adams v. United State ex rel. McCann, 317 U. S. 269 . We have no difficulty here in finding that the evidence ⁶⁹⁸ before the lower court was not sufficient for it to determine that the appellant waived his right to counsel at the lineup.

The police apparently proceeded under the theory that if the appellant was informed of his right to the presence of counsel and that if a lawyer desired by the appellant was notified that a lineup was to be held this was all that was required. But they knew that the appellant did not want to appear in the lineup without the presence of counsel and that the appellant could not obtain the presence of counsel at the lineup at the time it was scheduled. In the circumstances, their proceeding to conduct the lineup when they did was not in compliance with the Wade requirements. At the least, they should have postponed the lineup for a reasonable time to make possible the appearance of a lawyer for the appellant or, perhaps, if such postponement would in fact have been prejudicial to the State, provided a substitute counsel. 3 As the presence of counsel was a requisite to the conduct of the lineup, as counsel was not present when the lineup was conducted, and as the appellant did not waive his right to counsel, we hold that the confrontation at the lineup of the appellant by the identifying witnesses was illegal. 4 Wade and Gilbert fashioned exclusionary rules as to evidence of identification made at an illegal confronta ⁶⁹⁹ tion.

We set them out in Smith and Samuels v. State, supra, at 65: “1) The in-court identifications of the accused by witnesses at such confrontation are to be excluded unless the prosecution established ‘by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the confrontation identifications,’ that is that they had an ‘independent source.’ Wade at 240 and 242. 2) Evidence that witnesses identified the accused at such confrontations is per se to be excluded. Gilbert at 272-274 . 3) The admission of evidence, to be excluded under 1) and 2) is prejudicial error unless, in any event, its introduction was harmless error beyond a reasonable doubt, applying Chapman v. State of California, 386 U. S. 18 . Wade at 242 ; Gilbert at 274 .” Here the second rule is not applicable as evidence of identification at the lineup was not offered as a substantive part of the State’s case. It was properly offered by the appellant on the issue of the admissibility of the in-court identifications.

See Smith, supra, at 67-70 . Nor is the third rule applicable, for if the in-court identifications were excludable, their admission would not be harmless error. It was only those identifications that proved the criminal agency of the appellant. The question is whether it was established “by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the (illegal) confrontation identifications,” that is that they had an “independent source.” Mrs. Gloria A. Lee, employed by the Social Security Administration, separated from her husband, testified that she was raped by the appellant in her apartment about 9:30 A.M. on 6 July 1967.

She was in bed, dressed only in a robe, when she heard a knock at her door. She ⁷⁰⁰ did not answer “because nobody knew I was home.” A few minutes later she heard someone “bumping at the door like they were trying to get in.” She went to the living room and saw the appellant standing there. She asked him what he wanted and he explained his presence by stating he had the wrong apartment and was looking for a man who owed him money. He started to leave and then turned and pointed a gun at her.

He asked if anyone was there and went through the apartment with her “checking to see if anybody was home.” He told her he wanted to have sexual intercourse with her. She begged him not to hurt her, “kill me or anything.” He took her into the bedroom at gun point, took off his pants, stretched out on the bed and told her to get on top of him “so I wouldn’t get pregnant.” He had sexual intercourse with her. He then went to the bathroom “and I think he must have washed.” He said he was not taking anything —“he started to take the record player but he changed his mind and he told me not to call the police.” She had not seen the appellant before that time. Asked on cross-examination the duration of the act of intercourse, she said, “It could have been fifteen minutes.

It could have been twenty. I don’t know. It seemed like it was two days to me.” It was apparent on both direct and cross-examination that she had a clear recollection of the circumstances surrounding the incident and each detail of the occurrence. She was not shown any photographs by the police.

Asked if she looked at the other men in the lineup before she identified the appellant she said, “Not really. I didn’t have to. He was the only — I remember when I first walked in the door. He stood out above all the rest of them.” Miss Myrtle Brown testified that about 3:40 A.M. on 10 August 1967 she parked her car in front of her apartment building at 4300 Liberty Heights Avenue, having just come • from work at the Westinghouse Electric Corporation.

Sh'e had a private entrance to her apartment and just as she got to the steps leading to the apartment the appellant jumped out from behind some ⁷⁰¹ bushes. “He pulled out a gun and asked me for my pocketbook.” She handed it to him. “This man then grabbed my arm and pulled me behind just in front of the building * * * He told me to pull my garment down. I told him I wasn’t well and that made no difference to him at all. And he forced me to pull my garment down and he found I wasn’t lying about that. He pulled his trousers down * * * He pulled his zipper down on his trousers and exposed himself and then he pointed the gun at me.

And in the meantime I had tried to look at him. He slapped my face, I would say four or five times. And he told me not to look at him * * * He pulled — took his penis out of his pants * * * He forced me to accept his penis in my mouth * * * After the thing had been done he ran off.” She was able to see his face. “There are lights under the balconies around the entire building which enabled anybody to be able to identify this man anytime.” It was difficult for her to say how long she was in the presence of the appellant. “I would say at least, well, I would say at least five minutes, perhaps more. It did seem longer to me, really.” She had never seen the appellant before that time.

On cross-examination she said she had looked at the appellant and continued to look at him despite the threats. The incident occurred just in front of the building. “The lights are just over it.” She identified the appellant at a lineup in which there were five men. He was number three. After her identification she remained in the room.

She did not know how many witnesses came in after she identified the appellant. “I only know that I could identify him.” She said she did not expect to see the man in the lineup. “I hoped to see him, yes. But I didn’t expect to.” The police did not tell her the man was in custody “because they didn’t know who he was * * * I did.” Mrs Hattie Cockrell left her home to go to work at the Henryton State Hospital about 6:30 A.M. on 4 September 1967. She drove to work in the car of Mrs. Geraldine McDowell who picked her up at her home and on 4 September was waiting for her. As she crossed the street to ⁷⁰² enter the car she saw the appellant.

She had just gotten in the car when “the door flew open and the man stuck the knife in my chest and said, ‘Okay, give me your pocketbook’. And I gave him my pocketbook and he ran. He ran back up the street to a car. He got in the car” which was headed in the same direction as Mrs. McDowell’s car, backed up the street, turned around and went in the opposite direction. “I seen his face when I came out of the doorway and I noticed this man was looking across the street at me.” On cross-examination she said it was not “fully daylight.” When she came out of her house she saw the appellant. “The reason I looked at him is because he kept looking across the street when I came out and was about to walk in the walkway.

He was looking over across the street at me. And then — that is how I — that is what made me come to look at him. Well, at that time he went past. He went down the street past the car.” She saw him again in a lineup.

She was shown photographs before the lineup but did not recall whether the photograph of the appellant was among them. Mrs. Geraldine McDowell testified that she drove to Mrs. Cockrell’s house to take her to work before 7:00 A.M. on 4 September 1967. She had to wait for her. Mrs. Cockrell came out, entered the car, sitting on the right front seat, and a man opened the door “and he put (a knife) in her chest and I — and I got out on the other side and ran across the street.” She observed the man’s face ; she identified the appellant as the man.

On cross-examination she said she had seen the man walking up and down the street when she was sitting in the car waiting for Mrs. Cockrell. “He was