Layman v. State

POWERS, J., delivered the opinion of the Court. Stewart Ellsworth Bailey Layman, Jr. was indicted jointly with two codefendants, by the grand jury of Montgomery County, charging that on March 25, 1970, with a dangerous and deadly weapon, they robbed Frank J. Katen, Sr. of several thousand dollars in money, the property of Frank J. Katen, Sr. and Laurese Byrd Katen, and that they assaulted Laurese Byrd Katen. Layman was separately tried, on March 11, 1971, before Judge H. Ralph Miller and a jury in the Circuit Court for Montgomery County. He was convicted of both charges, was sentenced, and he appealed.

Here he contends that it was reversible error for the trial court to: ²¹⁷ 1. Refuse to exclude an in court identification by Mrs. Katen. 2. Refuse to exclude an in court identification by Mr. Katen. 3. Refuse to grant a requested mistrial after Mr. Katen testified he could identify appellant. 4.

Deny appellant’s motion for judgment of acquittal. 5. Rule that if appellant testified the State would be free to impeach him with a confession previously ruled to be inadmissible. 6. Refuse to hold a hearing on the voluntariness of that confession, out of the presence of the jury. The Robbery The evidence showed that Mr. and Mrs. Katen operated a numismatic business in a studio adjoining their home in Silver Spring.

On March 25, 1970, a young man came in and discussed proof coins with Mr. Katen. He was shown several sets, and examined them for three or four minutes. As two other men entered the studio, with guns in their hands, the first man took a gun from his pocket and ordered Mr. Katen to put up his hands. One of the men walked into the kitchen and confronted Mrs. Katen, who was sitting at a table.

He pointed the gun at her stomach, and ordered her to go into the studio. As she complied, he followed, with the gun at her back. The three men were there about 45 minutes, dumping coins into suitcases. They had tied both Mr. and Mrs. Katen with cords cut from the Venetian blinds, and had tied towels over their heads.

The money taken was alleged to have a face value of $3,350.00, but Mr. Katen testified that the value was about $15,000.00. Before the robbers left, they went through the house and cut all telephone lines. Mrs. Katen untied her own bonds and freed her husband. The robbery was reported by telephone from the house next door. ²¹⁸ The Identification of The Appellant Prior to trial, appellant had filed a motion to suppress any in court identification of him as a participant in the robbery by either of the victims.

It appears to have been accepted by all concerned that Mr. Katen could not make such an identification, but that Mrs. Katen was expected to do so. The motion was heard on the day of trial, out of the presence of the jury, before any testimony was taken on the issue of guilt. Appellant contended that any identification Mrs. Katen might make was tainted because she saw appellant at a preliminary hearing, and was suspect because of prior photographic viewings by her. Mrs. Katen testified, at the hearing on the motion, that when she was shown a group of photographs, she “tentatively” identified one of appellant as the robber who came into the kitchen and pointed the gun at her.

She considered that identification tentative because the man in the photograph had a beard, and the robber did not have a beard. She also said that at a later photographic viewing, “I saw another one which was definitely him”. As to the confrontation at the preliminary hearing, Mrs. Katen was questioned by William M. Cave, Esq., Deputy State’s Attorney, as follows: “Q When did you first see Mr. Layman on that morning ? A At the preliminary hearing?

Q Yes, ma’am. A When they brought these people in, and he was handcuffed. Q They brought them in, I assume, through a door? A Yes.

Q Were you looking at the door when they came in, if you recall? A I don’t know at the moment, but I looked up naturally, to see what was going on, because ²¹⁹ this was an all new experience to me; and I was looking all around and making observations. When I looked up and saw these people handcuffed, I took a second look and knew that was him. Q Did anybody indicate to you that was Mr. Layman?

A No. Q Who was sitting next to you at the time? A My husband. Q What, if anything, did you say to him? A I just nudged him, and I said, ‘That’s him.’ Q Prior to this, had anybody told you that, ‘You go sit down, and they will bring him in and you will see him’ ?

A No, I hadn’t spoken to anybody about who was going to be brought in, when or where. Q And does your recollection, identifying the Defendant, come from the occurrence of the robbery back in March, or from September 17, 1970? A Well, the minute he walked in, I knew that was him. There was no question in my mind.” Appellant testified at the hearing out of the jury’s presence that he was brought into the courtroom for the preliminary hearing handcuffed to two other men, one a black man, and they were seated on a bench.

He said that while he was sitting there his name was called out, and a detective took him out of the room for a telephone message. Judge Miller denied the motion to suppress evidence of identification of appellant. Before the jury, Mrs. Katen testified: “A * * * the door opened and this person appeared with the gun in his hand and stuck it right out at me and said, ‘Get up, lady, ²²⁰ and go in the other room where your husband is; and you won’t get hurt.’ So, I didn’t say a word. Naturally I got myself up and walked in the other room, and he got in back of me with the gun in back of me and followed me all the way in around the counters in the back and asked me to sit down, kneel down and at which time I did ask for a chair; and he shoved a chair under me.

He said, ‘Just keep still and don’t turn around;’ and then they proceeded, of course, then to tie us up; and in a little while, they got some towels and put them over our heads while we were robbed and things went on from there. Q Now, during the course of that confrontation, are you able to tell us whether or not you were able to get a good look at the individual that held the gun on you? A No, he walked in the kitchen; and there was a gun stuck practically in my stomach. I got a good look at his face.

I got a good look at his eyes. Q Do you see anyone here in court today? A Yes. Q Would you point him out?

A Stewart Layman. Q You are pointing, I believe, to the Defendant? A Yes. MR.

CAVE: May the record indicate that the witness had identified the Defendant, Stewart Layman. THE COURT: All right. The record will indicate. BY MR.

CAVE: Q I ask you to think very carefully and reflect ²²¹ on the answer. Is there any doubt in your mind whatsoever that that is the man? A There is no doubt in my mind at all. That is the man that put the gun right at me.” In Smith and Samuels v. State, 6 Md. App. 59 , 250 A. 2d 285 , in discussing Stovall v. Denno, 388 U. S. 293 , we said, at pages 65 and 66: “But the Court said that it was a recognized ground of attack upon a conviction, independent of any right to counsel claim, that a pre-trial confrontation was ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to be a denial of due process of law.

Such a claimed violation of due process of law depends on the totality of the circumstances surrounding it. Although the Court recognized that the circumstances of a confrontation may result in a denial of due process of law, it found, on the totality of the circumstances surrounding the confrontation there, that due process had not been denied. It did not enunciate exclusionary rules applicable when there is such a denial, but we think it follows that when a confrontation is illegal, whether by the denial of the constitutional right to counsel or the constitutional right to due process of law, the same exclusionary rules would apply. We hold that when a pre-trial confrontation is found to be illegal by the denial of due process of law, the exclusionary rules, enunciated in Wade and Gilbert, 1 as hereinbefore set out, are applicable.” We have reviewed our holding in Coleman v. State, 8 Md. App. 65 , 258 A. 2d 42 , cited by appellant.

We said in that case, at page 74: “We hold that the confrontation at the pre ²²² liminary hearing, in the circumstances, was so impermissibly suggestive as to violate the appellant’s Fourteenth Amendment right to due process of law.” But the circumstances there were very different from those here. In Coleman the witness failed to identify the accused in photographic viewings and at a lineup, and did identify him at the preliminary hearing only after he was brought, alone, before the judge, identified by name, and the charges against him were read. In the present case, the evidence showed that Mrs. Katen recognized appellant immediately upon his entry into the room, with other persons, and before he was in any way singled out 3s the person accused. When an appellant asserts a denial of his constitutional right to due process of law, we do not accept a conclusion of the trial judge merely because it is not clearly erroneous, but rather we make our own judgment of the facts based upon an independent, reflective constitutional appraisal of the entire record, Walker v. State, 12 Md. App. 684 , 280 A. 2d 260 .

We have made such an appraisal of the facts here, and we conclude that there was no pretrial taint of Mrs. Katen’s identification evidence, and that Judge Miller correctly ruled that such evidence was admissible before the jury. Mr. Katen’s Testimony and the Denial of the Motion for a New Trial Mr. Katen described the robbery to the jury. In his direct examination by the Deputy State’s Attorney, this took place: “Q And did you notice anything about any of the individuals insofar as size, shape? A Yes, I did, particularly the one I observed across from me for three to five minutes.

We will say I knew him very well. I was able to identify him later.” * * * ²²³ “Q So that we are clear, that man is not the Defendant? A That first man, no, is not the Defendant. Q What about the other two?

Did you notice anything about them? A Yes, there I caught a fleeting glimpse. In other words, the time it takes for me to get up to my chair and observe two men coming in, both with pistols, and the one on my left, closer to the kitchen door, was the Defendant. Q And what occurred after that?

A Well, by the time I got up, fully straightened up and put my hands above my head, he started to go into the kitchen. Then I saw Mrs. Katen. Q You say ‘he.’ Who are you referring to? A The Defendant now.” Appellant’s counsel, at the bench, took the position that it had been understood that Mr. Katen could not identify appellant.

The State conceded the point, and offered to clear it up. Appellant moved for a mistrial, which was denied. This followed before the jury: “BY MR. CAVE: Q I would like to digress for just a minute and ask you, you are not able to positively swear that this is the man that you saw on that day, is that correct?

A I will agree to that. THE COURT: All right, now, the jury will disregard all reference which this witness made to the Defendant as identifying him as one of the men that came in, because he just said he is unable to do that.” It is by no means clear that the witness