Parker v. State

ROBERT M. BELL, Judge. Phillip Sean Parker, appellant, was convicted by a jury in the Circuit Court for Baltimore County of robbery with a deadly weapon, robbery, use of a handgun in the commission of a crime of violence, and theft. He was sentenced to six years imprisonment for the robbery with a deadly weapon count, the robbery and theft counts merging into that count, and to a five year consecutive sentence for the handgun violation. On this appeal from the judgments thus entered, appellant presents four questions for our resolution: ⁶¹³ 1.

Was appellant’s show-up identification tainted? 2. Was appellant given adequate Miranda 1 warnings and did he intelligently waive his Miranda rights? 3. Was the evidence legally sufficient to prove criminal agency? 4. Was appellant denied a fair cross-section of jurors?

For the reasons that follow, we find no error, and, therefore, affirm. 1. Appellant’s initial complaint is that his “show-up” identification by the victim about one half hour after the robbery was tainted by an impermissibly suggestive procedure. The procedure was impermissibly suggestive, he asserts, because the victim was permitted to view him in handcuffs (a point disputed by the police testimony) and standing next to a police car and a police officer. He argues that the “show-up” identification should have been suppressed and, because the in-court identification was insufficiently independent of the “show-up” identification, it too should have been suppressed.

The evidence relevant to this issue reveals that the victim was robbed by two men while with a friend in an apartment complex. He testified that appellant, whom the victim knew from the neighborhood, pointed a gun at him and demanded that he remove his coat. Appellant and the other man, who was also known to the victim, took the coat and fled. The victim called the police and reported the robbery, in the process giving the police appellant’s name and address.

When the police located appellant, the victim was brought to the scene where he identified appellant as one of his assailants. Both the victim and his friend unhesitatingly identified appellant in court as one of the robbers. Appellant’s defense, presented through his own testimony and ⁶¹⁴ that of his girlfriend and a male friend, was that he was elsewhere at the time when the robbery took place. Being mindful that reliability, not suggestiveness, is determinative of the admissibility of a pretrial identification, we have independently reviewed, pursuant to our constitutional mandate, the five factors enunciated by the Supreme Court 2 to be used to evaluate the likelihood of a misidentification.

See Manson v. Brathwaite, 432 U.S. 98, 114 , 97 S.Ct. 2243, 2253 , 53 L.Ed.2d 140 (1977); Neil v. Biggers, supra; Foster & Forster v. State, 272 Md. 273, 288 , 323 A.2d 419 , cert. denied, 419 U.S. 1036 , 95 S.Ct. 520 , 42 L.Ed.2d 311 (1974); Bonner v. State, 43 Md.App. 518, 521 , 406 A.2d 646 (1979); Godwin v. State, 38 Md.App. 716, 725 , 382 A.2d 596 (1977), rev'd on other grounds, 284 Md. 85 , 403 A.2d 785 (1978). That review, without the necessity of resolving the conflict in testimony as to whether appellant was handcuffed when the victim identified him, convinces us that there was no error in this case. In reaching this conclusion, we place significant emphasis on the fact that the testimony is undisputed that the victim knew appellant and, indeed, identified him by name and address when reporting the crime. We are also persuaded by the facts that the “show-up” identification occurred shortly after the crime and that the victim’s identification was both immediate and certain. 2.

Appellant’s next contention—that there was insufficient evidence that he was given adequate Miranda warnings or that he had intelligently waived his Miranda ⁶¹⁵ rights—is equally without merit. Significant to the resolution of this contention is appellant’s concession that he was advised of his Miranda rights. He asserts, however, that such advice came only after he had been interrogated and processed. Appellant’s assertion need not have been, as, indeed, it was not, accepted by the court.

The court had before it testimony by a police officer that, although appellant refused to sign a written statement or waiver of rights form, appellant was advised of his Miranda rights prior to giving an oral statement. Considering the evidence in the light most favorable to the State, as we must, we conclude that the court did not err in permitting the police to relate that statement to the jury. 3. Appellant’s “sufficiency of the evidence” argument attacks “the caliber of identification evidence submitted at trial ... to establish his criminal agency in the crimes of which he was convicted.” In his view, such evidence lacked “probative force, resulting in insufficient evidence to [convict].” This issue has not been preserved for our review. Md. Rule 4-324(a) provides, in pertinent part: A defendant may move for judgment of acquittal ... at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence.

The defendant shall state with particularity all reasons why the motion should be granted____(emphasis added) Under this rule, moving for judgment of acquittal on the grounds of insufficiency of the evidence, without argument, does not preserve the issue for appellate review. See State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986), aff'g Lyles v. State, 63 Md.App. 376 , 492 A.2d 959 (1985). See Dillsworth v. State, 66 Md.App. 263, 267 , 503 A.2d 734 (1986) aff'd, 308 Md. 354 , 519 A.2d 1269 (1987). Although appellant’s counsel moved for judgment of acquittal at the end of all the evidence, when asked by the trial court if he wished to be heard on the motion, he merely stated, “I’ll submit”; he did not “state with particularity all the reasons why the ⁶¹⁶ motion should be granted.” Accordingly, he did not preserve the sufficiency of the evidence issue for appellate review.

Lyles v. State, supra; Md. Rule 4-324(a). 4. After the jury, expressly found to be acceptable to the State and the defense, had been impaneled, and sworn, appellant, who is Black, moved for a mistrial or dismissal on the ground that the State, by exercise of its peremptory challenges, “excluded or challenged the only two Black jurors on the panel, thus ensuring that there would be an all white jury.” The trial court held a hearing on the motion, at which the State gave its reasons for peremptorily striking the two jurors. The court then denied appellant’s motion, ruling: “I can’t say under the circumstances in this case that the State has exercised racial peremptories.” 3 Appellant urges that “the State’s strikes were too coincidental to be accepted as happenstance and that in effect defendant was denied a fair cross-section in the jury panel.” A defendant may trigger an equal protection inquiry into a prosecutor’s motive in the exercise of peremptory challenges, in the context of an individual case, by establishing a prima facie case of purposeful discrimination in the selection of the venire. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712, 1721 , 90 L.Ed.2d 69 (1986); Chew v. State, 71 Md.App. 681, 688, 694 , 527 A.2d 332 (1987).

The objection to the prosecutor’s exercise of peremptories, as well as the