Pope v. State

Morton, J., delivered the opinion of the Court. The appellant was convicted of armed robbery by Judge Walter M. Jenifer, sitting without a jury in the Circuit Court for Baltimore County. A sentence of eight years was imposed. Mrs. Bernice Walsh, owner of a small grocery store, testified that at approximately 9:00 a.m. on a Sunday morning, two men walked into her store and asked for sandwiches.

When told that she did not serve sandwiches, one of them produced a pistol and demanded her money. She opened the cash register and handed them bills and change in the approximate amount of thirty dollars. She observed them leave in an automobile and immediately telephoned the police, giving them a description of the car, its license number and a general description of the two men. Appellant and Eugene Nickens were arrested later that afternoon and charged with the armed robbery.

Mrs. Walsh identified the appellant in a police-conducted lineup the next day; at a preliminary hearing held later; and at the trial below. In this appeal, the appellant contests the constitutional legitimacy of the lineup. He concedes that the police advised him of his right to have an attorney present and that, if he could not afford one of his own selection, the State would appoint an attorney to represent him at the State’s expense. He also admitted signing a so-called waiver sheet upon which his rights with respect to an attorney were stated but asserts that he did not understand the meaning of the term “waiver.” Detective Gambrill of the Baltimore County Police Department testified that he advised the appellant that he would be placed in a lineup the next day at which time he read to him a “lineup waiver form prepared by the ⁵³⁵ Police Bureau” and that thereafter the appellant read the form and “at the time he stated he waived his rights and signed it.” The officer further testified that the appellant “stated that he hadn’t done anything wrong and did not need an attorney.” The appellant took the stand for the sole purpose of relating the events surrounding the lineup and asserted that he did not understand the definition of the word “waiver” and that he had not read the form which he signed.

The appellant was thirty years old and stated that he had completed the eleventh grade in school. Another police officer thereafter took the stand and substantially confirmed Detective Gambrill’s testimony. The trial judge found as a fact that “the defendant intelligently, voluntarily, and of his own free will and at his own direction eliminated the constitutional rights of having a lawyer present at the lineup.” See in this connection, Palmer v. State, 5 Md. App. 691, 701 . On the record before us, as outlined above, we cannot say that the trial judge was clearly erroneous in his holding.

Md. Rule 1086; Robinson, Austin and Lothes v. State, 5 Md. App. 723, 727 . It is next contended that “the appellant was subjected to a lineup proceeding that in every way violated fundamental principles of fairness and legality.” We disagree. The record shows that a five-man lineup was conducted; that the appellant and Nickens, who was eighteen years old, were two of the five men; that the other three men were police officers and a jail attendant; and that the appellant was permitted to select his own position in the lineup. Mrs. Walsh testified that the police made no suggestion of any nature to her concerning the men in the lineup; that she immediately identified the appellant as the number three man in the lineup; that although their heights and ages varied somewhat their complexions were similar except that the number one man was slightly darker.

We have carefully examined the record and considered the appellant’s arguments on this issue but we ⁵³⁶ cannot disagree with the findings of the trial judge that the lineup was conducted with “fairness and objectivity.” In any event, Mrs. Walsh, in making her courtroom identification, testified, in response to a direct question on cross-examination, that she could identify the appellant in the courtroom because he was one of the men who robbed her store and not because she had seen him in the lineup or at the preliminary hearing. It is apparent, therefore, that her in-court identification of the appellant “had a source independent of the [lineup] confrontation.” See Smith v. State, 6 Md. App. 23, 30 . It is finally contended that