Oliver v. State

Weant, J., delivered the opinion of the Court. On 23 June 1981, after a fourteen day trial, a jury in the Circuit Court for Howard County found Dean Hugh Oliver, appellant, guilty of: murder in the first degree and felony murder, robbery with a deadly weapon, robbery, attempted rape in the first degree, first degree sexual offense, breaking and entering at night with the intent to commit a felony and intent to steal, theft of less than $300, and assault and battery, all arising out of the 21 November 1980 killing of Paulette Lintner. Although the State sought the death penalty, the jury imposed life imprisonment for the murder. The trial judge ignored the first degree murder conviction and sentenced appellant on the felony murder into which he merged most of the other offenses.

Additionally, appellant was sentenced on the theft of property valued at less than $300 to a term of 18 months to run consecutive to the life sentence. He also received a ten year sentence for the battery conviction to run consecutive to the life term, but concurrent to the 18 month sentence. The facts developed in this case, represented by a transcript in excess of 4,000 pages, are. such that we deem it best to discuss them as we entertain the eight contentions appellant raises on appeal: 1. Whether the trial court erred in denying the motion to suppress the in-court identification of Appellant by Officer Mark Colbert and in permitting the in-court identification as well as the evidence of Colbert’s out-of-court photographic identification. 2.

Whether the trial court erred in not admitting evidence of the refusal of Emerson Baxter, whose testimony was obtained under terms of a plea agreement, to take a polygraph examination, which action was one of the conditions of the plea agreement. ⁴⁹³ 3. Whether Appellant was denied his constitutional right of confrontation, the effective assistance of counsel, and a fair trial by the actions of Emerson Baxter in refusing to testify when called by Appellant after testifying as a State’s witness. 4. Whether the testimony of Emerson Baxter was barred by the prohibition of approver testimony in Art. 27, § 635, Md. Ann. Code. 5. Whether Appellant was properly charged under the second, amended indictment. 6.

Whether the trial court erred in the reinstruction on aider and abettor in response to the question posed by the jury. 7. Whether the evidence was sufficient to support the convictions. 8. Whether the trial court erred in sentencing Appellant separately for theft (under $300) and battery. 1. Appellant asserts that all identifications by Officer Colbert, extrajudicial as well as in-court, should have been suppressed.

The hearing judge originally denied the suppression motion; after additional facts were discovered relating to Colbert’s identification, a second hearing was held to reconsider that motion. Ultimately, the second hearing judge denied the requested suppression. It must be noted at the outset that appellant is not advancing the garden variety objection that the identification procedure promoted "a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 , 88 S. Ct. 967, 971 (1968) (emphasis added); in fact, appellant concedes that the composition of the photographic array and the manner of presentation to Colbert were unimpeachable. Rather, the challenge is to several post-arrest confrontations between Colbert and appellant or pictures of appellant.

Appellant alleges that these were illegal confrontations which usurped ⁴⁹⁴ Colbert’s recollection of the original encounter and were ultimately the basis for Colbert’s in-court identification of appellant. The post-arrest events which are alleged to have been the actual basis for Colbert’s in-court identification were: (1) Colbert’s private retention of appellant’s arrest photograph and newspaper photo, (2) his brief review of the original photo-array before testifying at the first suppression hearing, and (3) his exposure to appellant prior to and during the second suppression hearing. The general rule is that once taint is shown as a result of an illegal confrontation, the burden shifts to the State to show by clear and convincing evidence that the identification had a source independent of the confrontation. Mills v. State, 19 Md. App. 614, 617 , 313 A.2d 560, 563 (1974).

The hearing judge made the following determination in deciding to permit the in-court identification: The Court is convinced that the subsequent viewing of photographs would not affect in any material manner Officer Colbert’s ability to make an in-court identification. It is abundantly obvious from Officer Colbert’s testimony that he is a credible witness and worthy of belief when he states that any identification that he might make of the defendant would be based upon his personal face to face contact. While this Court’s decision in Mills v. State, supra, suggests that Colbert’s unequivocal testimony was an adequate basis for clearly and convincingly establishing an independent source, a consideration of the facts will highlight the reliability of Colbert’s assertion that his identification of appellant was based on personal contact. At the first suppression hearing Colbert testified that his review of the photo-array had "nothing to do with this identification whatsoever.” At the second suppression hearing Colbert testified at length on the basis of his identification: ⁴⁹⁵ A. [Officer Colbert] Well, my memory of the subject is, like I say, based mostly of what I viewed him that night, the observation of him looking over at him, and he restricted looking at me, avoided eye to eye contact when he — when I asked him questions, when he answered questions.

But I still have a good enough vision in my memory as far as what he looked like standing outside, as I looked up at him, and looking over at him, to make a combination of both, to make an identification of him. Q. [Defendant’s attorney] And wouldn’t the single photograph and the newspaper article influence your mind in any way, shape or form with reference to the in-court identification? A. It would not influence my mind as far as making an identification. I’m basing it as I was the twenty-second and the photo array on the twenty-fourth.

Appellant had little reason to complain about Colbert having viewed him at the second suppression hearing since Colbert appeared in court in adherence to a summons issued by appellant. Thus, it was incumbent upon appellant to take steps to isolate Colbert from a view of appellant if he felt that confrontation might be potentially prejudicial. The salient facts surrounding Colbert’s initial identification are noteworthy. Colbert picked up a Negro male in close proximity to the scene of the crime shortly after the crime had occurred.

Unfortunately, the crime was not discovered until the next morning. Colbert had this individual whom he picked up on Frederick Road in the passenger seat of his police cruiser for about one-half of an hour. Colbert was suspicious enough of the individual that he ran a check on him using the name, date of birth, and address supplied by the individual. The date of birth and address matched appellant’s date of birth and address.

The name provided, Kevin Hall, did not appear on any police file. Colbert provided a detailed description of the individual he had chauffeured about on the night in question: ⁴⁹⁶ He was about twenty-two years of age, a black male. He was about five eight, and was of a slight build, a hundred and forty, a hundred and fifty pounds. I recalled a short Afro bush, a thin mustache, very thin, clean shaven, except for a mustache.

I don’t recall shoes. And he had a medium complexion. Nothing was introduced at trial to show that this description did not fit appellant. Colbert was exposed to a photo-array the evening of November 22nd and asked to identify the individual he had picked up on Frederick Road.

The officer asserted that the individual was not portrayed in the array. A second photo-array was shown to Colbert the following morning. He picked appellant out of this array and stated that he was 85% certain that this was the individual he had escorted in the early morning hours of November 22nd. This identification was made less than 48 hours after the initial confrontation.

We agree with the hearing judge that these events provided Officer Colbert, a police officer of seven years, with ample opportunity (i.eabout half an hour) to make a reliable identification of a man about whom he was highly suspicious. Thus, the suppression motion was properly denied. 2. Appellant contends that his defense was hamstrung when he could not question the State’s prime witness, Emerson Baxter, about his refusal to submit to a polygraph examination. Baxter was subject to the same charges as Oliver.

In his framing of this issue, appellant has misstated the facts. The record contains no plea agreement executed by Baxter, or evidence thereof, where submission tó a polygraph was a term of the agreement. There was testimony that this term had been discussed but the witness stated that it was never incorporated into any plea agreement accepted by Baxter. ⁴⁹⁷ Notwithstanding this factual discrepancy, appellant would fail on this argument even had Baxter executed such an agreement to submit to a polygraph examination. Judge Lowe, in speaking for this Court in Johnson v. State, 31 Md. App. 303 , 355 A.2d 504 (1975), disposes of appellant’s contention: The reason for excluding the results of a polygraph examination is the questionable reliability of such evidence.

Similarly, the admission into evidence of whether an accused agreed or refused to take such a test may give rise to jury speculation as to his reasons for submitting or refusing to submit to the test. In both cases, a determination of guilt or innocence may be affected by an accused’s state of mind after the crime, rather than upon evidence produced related to the crime itself. [ 31 Md. App. at 307 , 355 A.2d at 508 , emphasis in original.] In Johnson , this Court carved a very limited exception to the clear rule prohibiting testimony about polygraphs and allowed evidence of the use of a polygraph when the voluntariness of a confession is questioned. Clearly, the Johnson exception is inapplicable to the instant case. See also Mitchell v. State, 51 Md. App. 346 , 443 A.2d 651 (1982).

In appellant’s proffer to the trial judge it was posited that Baxter had refused to submit to the polygraph because "it would demonstrate his deception.” To allow appellant to question Baxter about his refusal to take the polygraph would only lend legitimacy to a test which is considered unreliable. Surely, if the direct results of a polygraph examination are inadmissible, any attempt to indirectly convey or initimate the results of a polygraph examination never administered must fall flat on its face. 3. In order to comply with the terms of his plea agreement, Baxter was cooperative when called as a State’ witness. However, when called to testify by the defense, Baxter speciously raised the 5th Amendment’s privilege against ⁴⁹⁸ self-incrimination as a response to each question posed.

Appellant raises a three-pronged attack requiring that all of Baxter’s testimony be stricken: the denial of (1) his constitutional right of confrontation, (2) effective assistance of counsel, and (3) a fair trial. Since appellant has only provided argument for the first prong, we shall not address the second two points. VanMeter v. State, 30 Md. App. 406, 407 , 352 A.2d 850, 851 , cert. denied, 278 Md. 757 (1976). Appellant cites 5 Wigmore, Evidence § 1391 (Chadbourn rev. 1974) as authority for the proposition that "[w]here the witness, after examination in chief on the stand, has refused to submit to cross-examination, the opportunity of thus probing and testing his statements has substantially failed, and his direct testimony should be struck.” [Emphasis in original.] This remedy was requested and denied below; on appeal, we do the same.

At the outset it should be noted that Baxter was called to testify at appellant’s trial on two separate occasions. He was first called by the State. Appellant then cross-examined Baxter at length, probing his testimony in the following areas: (1) his commitment to a mental institution for evaluation because he had heard voices, had hallucinations, and had twice attempted suicide; (2) details concerning the crime itself; (3) various injuries on Baxter’s face and hands at the time of arrest; and (4) Baxter’s plea agreement with the State. Appellant desired to question Baxter on certain psychiatric reports.

However, a foundation for those reports first had to be laid by a Dr. Freinek whom appellant planned to call as a defense witness. It was for the limited purpose of probing Baxter on these reports that the trial judge granted a continuance of cross-examination. However, it was made clear by Baxter’s attorney and the trial judge that Baxter could only be questioned in this regard if he elected to waive his privilege. 1 When recalled by appellant, Baxter refused to waive this privilege. ⁴⁹⁹ Once Baxter refused to waive this privilege, appellant had no constitutional right to cross-examine Baxter on these reports. Indeed, appellant does not contend that this privilege denied him the right of confrontation.

Avery v. State, 15 Md. App. 520 , 292 A.2d 728 , cert. denied, 266 Md. 733 (1972). After Baxter made it clear that he would not consent to Dr. Freinek testifying, appellant attempted to question Baxter on two other areas: (1) the crime itself, and (2) certain statements he had made to Dr. Herbert concerning injuries to his face and hands at the time of arrest. It is of paramount importance, however, to realize that at this point Baxter was no longer being cross-examined but rather was wearing the hat of a direct witness for the defense. It was in the role of a direct witness, not cross-examination witness, that Baxter raised the 5th Amendment privilege against self-incrimination.

Appellant has cited to us no authority where a direct witness who refuses to testify has been held to be a denial of the right of confrontation. All of the cases cited are inapposite inasmuch as they involve a witness who freely testifies on direct but refuses to answer questions on cross-examination. More importantly, appellant had already cross-examined Baxter on these two areas while Baxter was on the stand as a State’s