Redding v. State

Moylan, J., delivered the opinion of the Court. The appellant, Carlos William Redding, was convicted in the Circuit Court for Anne Arundel County by a jury, presided over by Judge Matthew S. Evans, for two charges of robbery with a deadly weapon. On appeal he raises two issues: (I) That he was prejudiced by an unlawful pre-trial identification, evidence of which went to the jury, and ⁶⁰³ (2) That the trial court abused its discretion in not granting him a continuance to secure the testimony of a witness about whom the jury made inquiry. The second contention can be disposed of quickly.

At the end of two days’ testimony, after both sides had rested their cases, but before closing arguments to the jury were made, the jurors passed written questions to the trial judge who read them to counsel at a bench conference. Several jurors wanted to know why the appellant’s girlfriend did not appear to testify since the appellant was supposedly with her when the robbery took place. The appellant moved to reopen the defense and continue the case so that the girlfriend, who was then residing some two hundred miles from the courtroom, could be summonsed to appear on the following day. The court, in its discretion, declined to reopen the case.

As this Court said in Hainesworth v. State, 9 Md. App. 31 , 36: “We have consistently held, however, that in order to show an abuse of that discretion it is incumbent upon an accused who seeks such continuance to show that the testimony of the absent witness was competent and material; that the case could not be properly tried without such evidence; that he had made diligent and appropriate efforts to procure the witness; and that he had reasonable expectation of procuring the attendance of the witness in court within some reasonable time. Nichols v. State, 6 Md. App. 644 ; Clark v. State, 6 Md. App. 91 . The circumstances of each particular case must be looked at to ascertain whether the lower court’s action amounted to an abuse of discretion. Walter v. State, 4 Md. App. 373 .” Under circumstances where the missing witness could easily have been summonsed by the appellant during the course of the trial; where her testimony as an alibi witness would have been cumulative to that of the appellant, the appellant’s mother and the mother of the ⁶⁰⁴ missing witness; and where the case was ready to go to the jury,, we cannot say that the trial judge abused his discretion in not reopening the case.

The first; contention dealing with the propriety of both in-court and, pre-trial identifications serves well to illustrate the at-times tortuous substantive and procedural labyrinths through which trials must now wend in the wake of the Wade-Gilbert-Stovall triology. 1 Since all the pre-trial confrontations and in-court identifications in, this case occurred after June 12, 1967, the day on .which the decisions in the Wade cases were rendered,.. the exclusionary rules fashioned by those cases, are here applicable. Smith and Samuels v. State, 6 Md. App. 59, 65 . The robbery victims, Dean Zimmerman and Robert Cato, were .both reliability engineers from the Kennedy Space Center in Florida. On March 8, 1968, they were both in Annapolis to assist in the preparation of a reliability course, and were staying temporarily in the same room, at the Charterhouse Motel in Anne Arundel County.

At approximately 2:30 a.m., Zimmerman was returning to the motel when he was approached by a masked gunman who stuck a gun in his back and asked for his wallet, which contained $7.00 in cash. The gunman then ordered Zimmerman to Zimmerman’s motel room. The light in the room was on and Cato was sleeping. The gunman awakened Cato and asked him for his wallet, which contained $27.00 in cash.

The gunman was wearing black rubber gloves and a mask similar to a ski cap or hood over his head. After he was in the room for some period of time, he took off both his mask and the rubber gloves. He left his mask off for approximately ten minutes, but put both, the mask arid the gloves on again before leaving the motel room. After reporting the robbery, the two victims on the next day returned to Florida.

When-the gunman left the motel room he did not notice that the rubber tip of one of the index fingers had ⁶⁰⁵ become detached and that that tip was inadvertently left in the room. When the appellant was later arrested at his home, a pair of rubber gloves were recovered. The tip of the index finger of one of the gloves was missing. The tip recovered from the site of the robbery matched up perfectly with the remainder of the gloves found in the appellant’s home.

On March 29, 1968, the State troopers investigating the robbery sent to each of the victims in Florida a folder-type booklet containing eight photographs. A photograph of the appellant was included in the set of eight. Zimmerman made a positive identification of the appellant by picking out his photograph and sent the booklet of photographs, with the appropriate notation, back to the State police by registered mail. Cato, on the other hand, could not make an identification, although he studied the group of photographs on a number of occasions for four days before returning them to the State police.

In all identification situations, we must now ask the double-barrelled question: (1) For a confrontation occurring after June 12, 1967, did the procedure offend the Sixth Amendment right-to-counsel protection (applied to the states through the Fourteenth Amendment) as guaranteed by Wade, supra, and Gilbert, supra? and (2) Even if there was no violation of the Sixth Amendment right to counsel, did the procedure, under the totality of the circumstances, offend the due process clause of the Fourteenth Amendment generally by being “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”, as proscribed by Stovall v. Denno, supra? The photographic viewings by mail in this case offended neither protection. There is no requirement under Wade and Gilbert that counsel be present for a photographic viewing, Baldwin v. State, 5 Md. App. 22 ; Barnes v. State, 5 Md. App. 144 ; and Simmons v. United States, 390 U. S. 377 . No violence was done therefore to the Sixth Amendment right to counsel.

Nor was there any ⁶⁰⁶ evidence to suggest in any way that the photographic viewings were impermissibly suggestive. The burden, of course, is on the appellant to show, prima facie, that they were. Smith and Samuels v. State, supra, 68. There was no such showing here.

No violence was done therefore to the due process clause. On April 26, 1968, the victims returned to Annapolis. Mr. Zimmerman attended a juvenile waiver hearing, at which time he confronted the appellant in open court. No question is raised about that confrontation and there is nothing to suggest that it was improper.

Mr. Cato did not attend that hearing since he had not as of that time made an identification of the appellant. Both victims were scheduled to return to Florida that very afternoon. The case came to trial on November 13, 1968. Mr. Zimmerman made an identification of the appellant in open court.

In addition to the in-court identification, Mr. Zimmerman testified as to his earlier selection of the photograph of the appellant from the group of eight mailed to him in Florida. This testimony as to the prior extrajudicial identification served both to corroborate and bolster his in-court identification, Judy v. State, 218 Md. 168, 174 , and as substantive evidence of the appellant’s guilt, Johnson v. State, 237 Md. 283 ; Proctor v. State, 223 Md. 394 ; Basoff v. State, 208 Md. 643 ; Smith and Samuels v. State, supra; Wilkens v. State, 5 Md. App. 8 ; and Crumb v. State, 1 Md. App. 98 . No question is raised as to the propriety of either the in-court identification or the extrajudicial identification made by Zimmerman. The troublesome questions arise over the extrajudicial identification and the subsequent (if not indeed consequent) in-court identification made of the appellant by Cato.

Shortly before flying back to Florida on the afternoon of April 26, 1968, Cato viewed a police-arranged lineup and picked the appellant out therefrom as the man who had robbed him at the Charterhouse Motel. There is no question but that the appellant had the right to the assistance of counsel at his lineup on April ⁶⁰⁷ 26, unless he affirmatively waived that right. The court below held that he did so waive the right. In a case such as this involving a clear Sixth Amendment claim, it is not enough for us to ask whether the court below had some evidence on which it could base its finding of a voluntary, knowing and intelligent waiver but rather “[w]hen constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record.” Brookhart v. Janis, 384 U. S. 1, 4, n. 4 ; Gardner v. State, 10 Md. App. 233,