Nance v. State

Anderson, J., delivered the opinion of the Court. Appellant, Eddie Nance, was tried in the Circuit Court for Prince George’s County by a jury, Judge Robert B. Mathias presiding, upon Indictments No. 7744, No. 7745 and No. 7746. In Indictment No. 7744 he was convicted of the crime of burglary and sentenced to 10 years under the jurisdiction of the Department of Correction. In Indictment No. 7745 he was convicted of the crimes of robbery with a deadly weapon (1st count) ; assault and battery (5th count) ; and larceny (6th count) ; and sentenced to terms of 10 years consecutive with the sentence imposed in Indictment No. 7744, 5 years concurrent with the sentence imposed in Indictment No. 7745 (1st count), ⁴³⁶ and 5 years concurrent with the sentence imposed in Indictment No. 7745 (5th count).

In Indictment No. 7746, in which he was charged with the crimes of rape and assault with intent to rape, he was found not guilty. Upon this appeal the appellant raises the following contentions : 1. That the pre-trial identification procedure was improper; 2. That the evidence was not sufficient to go to the jury; 3.

That the lower court erred in its ruling concerning the use of a prior conviction to impeach the appellant’s testimony; 4. That the court erred in its instructions to the jury. Briefly the facts of the crime are as follows: On the evening of January 15, 1968, Mr. and Mrs. Clifton Jackson were at their home in Accokeek, Maryland, with their three foster sons, Preston James (age 15), Montell James (age 12) and Gary Draughn (age 10), and Mrs. Jackson’s aunt, Mrs. Evelyn Matthews. At about 7:00 p.m. four men came into the house on the pretext that they wanted to use the Jackson’s telephone.

Once inside, one of the men drew a pistol. The men remained in the house for 45 or 50 minutes, during which time the family was forced at pistol point to lie on the floor. During that time Mrs. Jackson was taken into a bathroom and sexually molested, Preston James was beaten, the house was ransacked, and certain goods were stolen. I — PRE-TRIAL IDENTIFICATION Shortly after the intruders left the Jackson home, Mr. Jackson called the Prince George’s County Police.

Detective Thomas Reilly and Detective Sergeant Rutherford went to the house and talked to each person in the household individually. Detective Reilly personally spoke with Mr. Jackson, Mrs. Jackson, and Preston James and received descriptions of each of the four intruders from ⁴³⁷ them. Detective Reilly then returned to the station house and selected six “mug” photographs of persons matching the descriptions given by the Jacksons from the police files. A photograph of one Francis Delilly was intentionally selected from the file, while five other photographs were selected at random.

On the following afternoon Detective Reilly, accompanied by Detective Lieutenant Bryan, returned to the Jackson house with the six photographs. He placed the photographs face up on a coffee table in the living room and had each person in the household view them individually and then collectively. He did not point out any one of the pictures for their particular attention. Detective Reilly testified that Mr. Jackson first viewed the photographs individually, then Mrs. Jackson viewed them, followed by Preston, then Mon-tell, and then Gary.

The family then viewed them collectively. During the time the family was looking at the photographs, Mr. Jackson spoke to the boys and told them to be sure not to pick the wrong photograph. Preston James testified that during the time the family viewed the photographs together there was conversation among them such as, “What do you think about this?” and “Do you think maybe he is the one ?” After viewing the photographs, Mr. Jackson, Mrs. Jackson and Preston James identified the appellant as one of the intruders. Detective Reilly testified that Mon-tell James also identified the appellant from the photographs, though Montell’s testimony at trial contains no reference to a photographic identification.

On January 18, Detective Reilly returned to the Jackson house and had the family again view the photographs he had shown them on January 16. The family members again identified the appellant. A second group of photographs, containing pictures of two other suspects but no picture of appellant, was also viewed by the family members on January 18. On March 7, 1968, the appellant was taken to the United States District Court in Washington, D. C. for an ⁴³⁸ extradition hearing following his arrest.

Mr. and Mrs. Jackson were seated in the courtroom with a Maryland deputy sheriff, Mr. Jackson having been told that the police had a suspect and having been asked to attend the hearing “to identify the man who was at my house.” While Mr. and Mrs. Jackson were seated in the courtroom, the appellant, dressed in “civilian clothes,” entered the courtroom from the rear and walked into court ahead of a man whom Mr. Jackson later learned was a deputy marshal. When Mr. Jackson saw the appellant coming down the aisle he said to the deputy sheriff, “That is the man that held us up.” At trial Mr. Jackson, Mrs. Jackson and Preston James each made an in-court identification of the appellant. Each testified also to having made the photographic identifications adverted to above. Mr. Jackson testified also as to his identification of the appellant at the extradition hearing.

The appellant moved to suppress the pre-trial identifications and that motion was denied. The appellant contends that the photographic identifications were made under unduly suggestive conditions and were thus in violation of his right to due process of law and that the identification made at the extradition hearing violated his rights to counsel and to due process of law. With regard to the photographic identifications, the rule to be followed is that if it is shown that a pre-trial identification by photograph, on the totality of the circumstances surrounding it, was so unduly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of evidence of such identification or a subsequent in-court identification is determined pursuant to the exclusionary rules of United States v. Wade, 388 U. S. 218 and Gilbert v. California, 388 U. S. 263 . Smith and Samuels v. State, 6 Md. App. 59, 67 (1969).

Applying the standard to this case we have no difficulty in determining that the appellant was not denied due process of law, since the photographic identi ⁴³⁹ fication procedures followed here were neither unduly suggestive nor conducive to misidentification. There was ample opportunity for Mr. and Mrs. Jackson and Preston James to have observed the appellant over the period of forty-five or fifty minutes during which the crimes were committed. There was no showing that Detective Reilly or any other police officer indicated in any way that the appellant was or even might have been one of the perpetrators. The appellant’s photograph had been selected by Detective Reilly at random from mug pictures of those matching the general descriptions given by the Jacksons; at the time of the viewing the appellant was not even a suspect.

The photographs were viewed by the individual members of the Jackson family before being viewed collectively, and there is no indication that any pressure was exerted on any member of the family to pick a certain photograph. In short, we believe that the photographic identifications were similar in relevant particulars to the identification in the Smith and Samuels case, supra at 78-79, and we find that in the factual surroundings of this case the viewing of the photographs did not deny the appellant due process of law. Consequently, the testimony concerning the photographic identification was properly admitted. With respect to the appellant’s identification at the extradition hearing, he first contends that his right to counsel was violated.

This contention may be disposed of by noting that the record shows, and appellant has admitted, that appellant’s then attorney was present at the extradition hearing at which the identification was made. There remains the question whether the identification at the extradition hearing violated appellant’s right to due process of law. In Stovall v. Denno, 388 U. S. 293 , the Supreme Court of the United States recognized that a conviction could be properly attacked, independent of any right to counsel claim, on the ground that a pre-trial confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a ⁴⁴⁰ denial of due process of law. This Court has similarly-recognized that ground of attack.

See, e.g., Smith and Samuels v. State, 6 Md. App. 59 (1969) ; Tyler v. State, 5 Md. App. 265 (1968); Wethington v. State, 7 Md. App. 79 (1969). To determine the validity of such an attack, it is necessary to examine the totality of the circumstances surrounding the identification. Smith and Samuels v. State, supra. This means, for example, that a confrontation may not be held to conform to the requirements of due process of law merely because an attorney was present at the scene of the challenged confrontation, although the presence or absence of the appellant’s attorney is a highly relevant factor in the ultimate determination.

It is also significant here that the identification, although made in a courtroom, with a judge upon the bench, was not made as an incident of the extradition hearing. At the time the identification took place Mr. Jackson was seated with his wife and a deputy sheriff in the courtroom, the appellant was in the process of advancing through the courtroom to his seat, and the hearing was not, apparently, in progress at that moment. However, as noted above, Mr. Jackson had ample opportunity to observe the appellant over the forty-five or fifty minute period during which the crimes had been committed, and he had previously identified the appellant from photographs under circumstances which were not conducive to misidentification. There is no indication that the deputy sheriff or anyone else told Mr. Jackson which door the appellant would enter through or how he would be garbed, or that anyone pointed out the appellant to Mr. Jackson as he entered the courtroom.

The appellant was dressed in civilian