Queen v. State

Lowe, J., delivered the opinion of the Court. Arvin Queen was indicted for escape, convicted in the Circuit Court for Anne Arundel County and sentenced to one year. His conviction rests entirely upon a “base file” which is an institutional record “kept in the regular course of business of every inmate in every institution in the Division of Correction.” The base file in question showed that one Arvin Queen had been convicted of assault on December 24, 1970 and sentenced two months later to serve five years in prison. The file also contained a “Notice of Escape” indicating the “Details Relating to Inmate’s Escape:” to be “Walked off from work assignment.” That in itself is sufficient to form the corpus delicti of escape, outlined by Judge Menchine in Robinson v. State, 18 Md. App. 438 , 441-442: “§ 139 is a broadly based statute embracing within its purview all escapes from lawful confinement, whether the escape was initiated from within or without the walls or other boundaries of a penal facility; whether the confinement was actual or constructive; whether it was effected with or without force, and without regard to the circumstances of confinement if the detention was under color of law/’ ²²⁴ Accord, Fabian v. State, 3 Md. App. 270 , cert. denied 250 Md. 731 .

The State, however, made even better use of that record. Apparently having no one available who could personally identify appellant, the State called upon the record custodian to compare the photograph in the record with the appellant, who had been arrested some two and one-half years after his departure. The State then asked the custodian: “Using that photo are you able to identify Mr. Arvin Queen? ” To which the custodian replied, “Yes, I am.” The following colloquy ensued: “Is he present in the courtroom today? A Yes, he is.

MR. LOWMAN: Objection, Your Honor. A Sitting at the defense table. COURT: Well, is this of your personal knowledge you can identify the defendant?

A I wasn’t asked personal. I was to identify him from the picture. COURT: Is that your objection? MR.

LOWMAN: That’s my objection, Your Honor. The witness has no personal knowledge of who Mr. Queen is, and— COURT: Well if he has a picture of Mr. Queen in the file he can identify him from that. It might be a misidentification but he can identify him.” After that identification appellant questioned the custodian ²²⁵ on cross-examination as to his personal knowledge of Queen’s identity: “Officer Cunningham, at the time of this alleged escape were you in direct supervisory control of Mr. Queen? A No, I was not.

At that time did you know Mr. Queen? A No, I did not. Did you know him personally now? A No, I do not.

Now the entries that have been introduced into evidence over objection did you make any of those yourself? A No, I did not.” Apparently recognizing some weakness in identification the State called the officer who had “participated in returning . . . Arvin Queen to the Maryland House of Correction.” The officer had gone with another to pick up Mr. Queen at the jail. He was asked: “Did there ever come a time that Mr. Queen identified himself to you?

A No, he didn’t identify himself to me because I stayed outside and Kershaw went inside and made the identification and took custody of him.” It was also brought out that the officer at a later date returned to the detention center to assure himself that he could identify appellant: “And do you recall what the purpose of calling Mr. Queen to Center Hall was for? A Yes, I do. Will you tell His Honor why you called Mr. Queen to Center Hall? ²²⁶ A To put a name with a face. In other words so that you could see him to identify him today?

A By name. Prior to October the 7th, 1974, did you know Mr. Queen personally? A No, sir. And on the day that you say you were in Annapolis you could not, or you did not make any identification of Mr. Queen on that day, did you?

A No, sir. He did — he was not identified to you on that day, was he? A No, sir. So you really don’t know who you picked up In Annapolis, do you?

A We picked up Arvin Queen. Well is that based on the identification you made at the Maryland House of Correction on October the 7th? A Based on the identification of the man I brought back from Annapolis who I was assigned to go get. But you find it necessary to have a meeting with him so that you could see prior to this morning, earlier this month?

A To affiliate the name with the face, yes, sir. Well prior to October the 7th could you have identified Arvin Queen? A To October 7th? Prior to the meeting in Center Hall?

A I could identify him by the face, not by name, no.” ²²⁷ Upon objection the court ruled: “COURT: Well, I don’t think whether he identifies his face here today is even relevant because he has testified that he picked up one Arvin Queen and returned him to the Institution in May of 1974 and whether he points him out on the stand today is really not too significant. But if it would make you feel better I’ll strike the visual identification since I don’t think he really had the visual identification based on what he saw on May the 26th, 1974 but rather on what he saw in the Institution.” “MR. DRYDEN: Your Honor, just for clarity then, the testimony in which he identified him that he picked up a person named Arvin Queen in Annapolis — “COURT: No, that is not stricken. That is still admissible.

That is not stricken.” As its ultimate effort the State now argues that Queen’s appearance in court served as sufficient identification: “ . . . the identity of the individual at trial was established prior to the taking of any testimony when appellant’s case was called for trial.” 1 Treating the identity contentions inversely, we find precious little merit in any, but no merit in the latter. ²²⁸ Appellant was present in court when his case was called because he was brought to court still in the custody of gaolers. His attorney’s plea of “not guilty” placed in issue every element of the crime including appellant’s identity as the “Arvin Queen” who had escaped from custody two years prior. The issue of identity must be settled before that of guilt becomes relevant. United States v. Hecht, 22 F. 2d 264, 265 .

Certainly the “not guilty” plea may not be said to waive the State’s burden of proving a defendant’s identity, Cf. Jones v. State, 10 Md. App. 420 , cert. denied 260 Md. 721 . Had appellant stood mute 2 the court would undoubtedly ²²⁹ have interposed such a plea. Md. Rule 721.

Accord, Hochheimer’s Criminal Law, (2nd Ed.) § 113. This leaves the State with but two sources of identification: the police officer who transported appellant from one jail to another and the custodian who compared appellant to a picture in a record. The police officer admitted that he did not know Arvin Queen; however, the judge permitted him to testify that “he picked up a person named Arvin Queen in Annapolis . . . .” This was clearly insufficient as attested by his responses: “And on the day that you say you were in Annapolis you