Palmer v. State

Orth, J., delivered the opinion of the Court. The questions presented on this appeal involve the application of the rules of law enunciated or construed in United States v. Wade, 388 U. S. 218 , Gilbert v. State of California, 388 U. S. 263 and Stovall v. Denno, 388 U. S. 293 , to the admission of evidence with respect to the identification of the appellant. The appellant was charged with the crime of robbery with a deadly weapon in each of two indictments, the indictments were tried together by the court in the Criminal Court of Baltimore, he was convicted of the offense under each indictment and a 20 year sentence was imposed on each conviction, the sentences to run consecutively. ⁶⁹³ The basic principle enunciated in Wade is that a lineup is a critical stage of the prosecution at which the accused is as much entitled to aid of counsel as at the trial itself. 388 U. S. 236 . The Court in Wade and in Gilbert then went on to “fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel.” Stovall at 297.

As we understand Wade, Gilbert and Stovall , when a post-indictment lineup is conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel: 1 1) The in-court identifications of the accused by witnesses who viewed such lineup are to be excluded unless the prosecution establishes “by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identifications,” that is that they had an “independent source.” 2 Wade at 240 and 242. ⁶⁹⁴ 2) Evidence that witnesses identified the accused at such lineup is per se to be excluded. Gilbert at 272-274 . 3 3) The admission of evidence, to be excluded under 1) and 2) is prejudicial error unless, in any event, its introduction was harmless error beyond a reasonable doubt, applying Chapman v. State of California, 386 U. S. 18 . Wade at 242 ; Gilbert at 274 . 4) “Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after (12 June 1967).” Stovall at 296 . 4 5) Independent of any right to counsel claim, a confrontation may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. “However, a claimed violation of due process of law in the conduct of a ⁶⁹⁵ confrontation depends on the totality of the circumstances surrounding it * * Stovall at 301-302 . The precise holdings in Wade and Gilbert apply only to a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel.

See Tender v. State, 2 Md. App. 692. But the Court said in Wade at 227: “In sum, the principle of Powell v. Alabama ( 287 U. S. 45 ) and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” And it stated, Wade at 229: “The pretrial confrontation for purposes of identification may take the form of a lineup, also known as an ‘identification parade’ or ‘showup’ * * * or presentation of the suspect alone to the witness * * *. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.” 5 ⁶⁹⁶ We think it necessarily follows that the rules of Wade and Gilbert apply also to a lineup conducted before indictment and to other pretrial confrontations within the meaning of Tyler.

We again note that in Stovall, at 300, the Court said that Wade and Gilbert affect “* * * all future cases which involve confrontations for identification purposes conducted in the absence of counsel * * (emphasis supplied). It did not limit their affect to “post-indictment lineups.” And we think also that Wade and Gilbert contemplate that if an accused is to be so confronted by identifying witnesses before his trial and is not represented by counsel and cannot afford to employ counsel, 6 counsel must be provided for him unless he intelligently waives the right. Although in Wade and Gilbert counsel had already been appointed and no argument was made in either case that notice to counsel would have prejudicially delayed the confrontations, the Court appeared to recognize that in some circumstances notice to and the presence of the accused’s own counsel would result in prejudicial delay. Wade at 237 .

And even though the Court did not specifically so state, we think it logically follows that where counsel had not been already appointed, the time necessary to have counsel. appointed and assure his presence would, in some circumstances, result in delay prejudicial to the prosecution. But the Court expressly left open the question “whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay,” noting (note 27 at 237) : “Although the right to counsel usually means a right to the suspect’s own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel’s presence may eliminate the hazards which render a lineup a critical stage for the presence of the suspect’s own counsel.” In the instant case there was an in-court identification of the appellant at the guilt stage of the trial by each of the robbery victims. One of the victims, David Watson, had previously identified the appellant at a confrontation in the courtroom at the ⁶⁹⁷ Western Police Station. The other victim, Sidney Lipman, had previously identified the appellant at a lineup at Central Police Pleadquarters.

Both the confrontation at Western and the lineup were after 12 June 1967 but were before the appellant was indicted. Prior to trial the appellant filed a motion to suppress evidence. He moved that “any evidence obtained by the State in consequence of the lineup in which he appeared following his arrest be suppressed as said evidence was obtained in violation of his rights guaranteed by the Sixth Amendment of the United States Constitution.” He alleged as reasons that he had not been advised of his right to private or appointed counsel for representation during the lineup and that he was not represented by counsel thereat. When the cases came up for trial defense counsel brought to the court’s attention that the motion had been filed.

The State said that its first witness, Watson, had not attended the lineup so that the motion was not addressed to the case in which he was involved. The court said that it would take Watson’s testimony and “Since it is a court trial, if we find that your allegations in this motion are such as would place it within the purview of United States versus Wade, we will exclude it from the record and from our consideration of the evidence in conformity with your request and motion. So we will defer on the actual ruling on this motion at this time * * As Watson began his testimony defense counsel said to the court that although Watson had not attended a lineup he had confronted the appellant who “was just hustled into the courtroom, and Mr. Watson was brought in moments later.” Watson at that time identified the appellant. Counsel claimed “This certainly would be even worse” than an identification at a lineup.

The court said that this would have to be developed on cross-examination and it would have to decide whether it went to the weight or to the motion to suppress at that time. During the course of his testimony, Watson identified the appellant as the man who had robbed him. Timely objection was made and overruled. Thereafter it was brought out by the State that the witness had gone to the Western Police Station at the request of the police.

A Lieutenant Etheridge “explained what was going to happen. I sat there in the courtroom, and he said he was going to bring some people in * * * Some people for ⁶⁹⁸ a hearing, and he said if I recognized anybody, that did anything * * * to me or anyone else, that I should pick him out * * * Well, I was in the courtroom and after approximately five or ten minutes, they brought the defendant in, and that’s when I picked him out.” The appellant was brought in by himself; no other people had been brought in- — -“he was the first case.” Watson was seated in the rear of the courtroom in the company of an Officer Sullivan. “I had orders that if I recognized him, I was to stand up arid say, ‘that’s the man.’ ” When the appellant was brought in “I picked the man out. I stood up and said, ‘Lieutenant, that’s the man.’ ” He had been told that “it was a possibility that they may have had the fellow that hurt me.” Watson was asked by the State, “Did you subsequently give any testimony and make this identification at that time?” He replied, “They had to draw up a case in order for me to press charges and stuff like that at the station, sir.” Defense counsel moved that the in-court identification and the testimony as to the identification at the police station be stricken from the record. The motion was denied.

On appeal the appellant contends that he was denied the right to counsel at the confrontation and that the admissions of the identifications were constitutional error. We think it clear that the appellant was not represented by counsel at the challenged confrontation. We held in Tyler v. State, supra, at 270, that nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made. We said that “The rationale of Wade and Gilbert is not applicable to confrontations at a pretrial judicial hearing presided over * * * by a judicial officer * * The States assumes that the confrontation was during a preliminary hearing.

Insofar as it appears from the record before us, we find it clearly evident that it was not. And we think that the confrontation here was such as not to be subject to fair and meaningful objective review later at the trial and, therefore, as we indicated in Tyler, at 272, fell within the strictures of Wade . Thus, since the appellant was not represented by counsel thereat, it was an illegal confrontation. As such, evidence on examination by the State that the witness identified the appellant at the confrontation was not properly admissible, the per se ex- ⁶⁹⁹ elusionary rule of Gilbert being applicable.

And, on the record before us, we are not “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, supra. 7 We find the admission of the evidence of the identification of the appellant at the confrontation to be prejudicial error and, even though it involves only one indictment, we are compelled on the particular facts of this case to reverse the judgments under both indictments as they were tried together and it cannot be ascertained what consideration the trier of fact gave to the inadmissible evidence in reaching its verdicts of guilty. 8 Thus the question whether the in-court identification by Watson had an independent source is not reached. By our holding it is not necessary to consider the admissibility of the in-court identification by Lipman, the victim of the other robbery, and the admissibility of the evidence as to his identification of the appellant at the lineup. However, we feel it advisable to discuss these questions, in any event, for the guidance of the lower court. The appellant contends that he was denied his right to counsel and that