King v. State

Moylan, J., delivered the opinion of the Court. The appellant, Joseph Adolphus King, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge Basil A. Thomas, of rape and of armed robbery. Although he raises three contentions upon this appeal, it will only be necessary for us to discuss his claim that an impermissibly suggestive photographic viewing should not have been referred to in evidence and was, furthermore, a fatal taint upon the subsequent in-court identification. Mrs. Joann Downey was the victim of both the rape and ²⁶⁸ the armed robbery which occurred on the upper level of a downtown parking garage at approximately 6:30 p.m. on December 15, 1971.

The only evidence against the appellant was the identification of him made by Mrs. Downey. The appellant made an appropriate motion to suppress both direct evidence of the pretrial identification and the in-court identification, which he claimed was based upon it. That motion was denied. The appellant made timely objection at the trial when the identifications were made.

It is clear that a claim of impermissible suggestiveness in a photographic viewing is based upon the due process clause as in Stovall v. Denno, 388 U. S. 293 , 87 S. Ct. 1967 , 18 L.Ed.2d 1199 , and not upon the Sixth Amendment “right to counsel” clause as in United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 , and Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L.Ed.2d 1178 . The claim must be evaluated, therefore, “in light of the totality of surrounding circumstances.” Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 . It is also clear that in evaluating the totality of the circumstances, we are called upon to make an independent, reflective constitutional judgment on the facts. Walker v. State, 12 Md. App. 684 , 280 A. 2d 260 ; Dillingham v. State, 9 Md. App. 669 , 267 A. 2d 777 (concurring opinion by Orth, J.).

As we make that independent, reflective constitutional judgment, we apply to the facts at bar the standard set out in Simmons , at 390 U. S. 384 : “[W]e 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.” Mrs. Downey was called to the Bureau of Identification in the Central Police Station at approximately 11:30 p.m. on December 15. For the next hour and one-half to two hours, ²⁶⁹ she viewed approximately 250 photographs of Negro males. According to her initial testimony, she selected the photograph of the appellant as being a picture of her assailant at approximately 1 a.m. on the morning of December 16. Officer Robert Bowman also testified that Mrs. Downey made such a photographic identification.

If that were all the evidence that was before us, we would have no problem in finding that the procedure was not impermissibly suggestive. Subsequent events, certain inconsistencies and partial retractions erode our confidence, however, in the positive nature of that first identification. Officer Bowman filed an offense report that contained the following entry: “On December 15th at 1110 hours this date, Mrs. Downey was taken to the B. of I. to view photographs with negative results at this time.” He later explained away this report by saying that he had filled out his report before the viewing had been completed and before Mrs. Downey made the identification. At no time, however, did Officer Bowman file a supplementary report.

A report that he did file on December 16 made no mention of a positive identification having been made on the preceding night. No official record ever reflected a correction of that first report which indicated “negative results.” Mrs. Downey later stated that she was called back on the following day because the picture that she had identified on that first night “wasn’t a very good picture, and that is why I wanted him to get more pictures. I wanted to see more pictures.” Officer Bowman was specifically asked if he ever reduced to writing the ostensible identification made on the night of December 15-16. He replied, “No.” He was asked why.

He replied: “It was after she had finished — we had finished the reports, and the reports were turned in that she made the identification. The picture that she picked out — the defendant’s head was in a — cocked in a funny position. This is what she told me, and she wanted to see other pictures of him.” ²⁷⁰ He subsequently stated again that the lack of a written report was because of the nature of the identification which had been made: “There was no report written. Because of the picture