Mouzon v. State

Per Curiam. Paul Mouzon (appellant) was convicted of robbery with a deadly weapon at a court trial in the Criminal Court of Baltimore. He presents questions as to; I the sufficiency of the evidence; II the admissibility of evidence of identification; and III the admissibility of a confession. ⁵⁹ I The victim, a route salesman for the Utz Potato Chip Company, testified that he was forced at gun point to give about $120 to two men. This was sufficient to establish the corpus delicti of robbery with a deadly weapon.

He made a positive judicial identification of appellant as one of the robbers. This was sufficient to establish the criminal agency of appellant. In the face of this evidence we cannot say that the court’s judgment on the evidence was clearly erroneous. Maryland Rule 1086.

II The judicial identification of appellant by the victim was not challenged below. The State attempted to adduce evidence through the testimony of a police sergeant that the victim had identified appellant from photographs. Objection was made and the court asked the State why it had not asked the victim with regard to the extrajudicial identification in its direct examination of him. The State said, “I didn’t think I needed it your Honor,” and the court said, “Well,-if you don’t need it with him, you certainly don’t need it with the officer.” The matter was not pursued and although there was no motion to strike the testimony we think it clear that the court in effect sustained the objection.

But, assuming that evidence of an identification by a pre-trial viewing of photographs was admitted as independent evidence of identification or as corroborative of the judicial identification, the rule is that such evidence is admissible not only when adduced through the out-of-court declarant but when adduced through a police officer or third person observing the extrajudicial identification if the out-of-court declarant is present at the trial and available for cross-examination, as was here the case. When challenged, the burden is on the defendant to show prima facie that the pre-trial identification procedure was illegal. It is when it is established that the pre-trial procedure was illegal that the exclusionary rules come into play. Smith and Samuels v. State, 6 Md. App. 59 ; Miller v. State, 7 Md. ⁶⁰ App. 344.

Appellant here did not meet his burden. He argues, however, that the court erred in finding “a credible in-court identification.” The admission of the judicial identification is not before us as not challenged below. Maryland Rule 1086. And in any event the credibility of the identifying witness and the weight to be given