Sallie v. State

Powers, J., delivered the opinion of the Court. The dwelling house of Mr. and Mrs. Eugene Monger, 1 in Aberdeen, Harford County, was burglarized in the nighttime on 15 August 1973. A sum of money and a wallet, valued at less than $100, were stolen. Louis Sallie, the appellant here, was indicted for the crimes.

He was tried before a jury in the Circuit Court for Harford County, and was convicted of burglary and petty larceny. After sentences were imposed, he appealed. 2 In this Court he contends first that the trial judge erred in denying his motion to suppress any evidence identifying him as the burglar because a pretrial viewing of photographs by Mr. Monger was so impermissibly suggestive that it tainted any possible identification in court. He contends further that the judge erred in denying his motion for judgment of acquittal, because the evidence was not sufficient to permit the jury to find that he was the criminal agent. Ashe concludes in his brief: “The Appellant would concede that the State had proven all the necessary elements of the crime of burglary, but they failed in establishing that necessary relationship between the offense ⁴⁷⁰ committed and the person who committed that offense.” Around 10:00 o’clock on the evening of 15 August 1973 the Mongers were visiting with neighbors across the street.

They had left their two small children at home, asleep upstairs, and had left their front door closed, but unlocked. Mr. Monger intended to return to the house from time to time to check on the children. Another neighbor called and told the Mongers’ host that two men had just entered the Mongers’ house through the front door. Mr. and Mrs. Monger and others ran across the street.

Mr. Monger found that his front door was locked, and he could not get in. He lifted the mail slot, and through the opening he could see most of the living room, a hall, and part of the kitchen. Lights were burning. He saw two men.

One was going from the living room to the kitchen. Mr. Monger had a side view of him, and observed his clothing. He then saw the second man, backing out of a corner of the living room. The man turned, and ran into the kitchen.

Mr. Monger observed his clothing, and also saw what he described as a diamond shaped scar on the man’s right cheek. Both men left the house through the glass sliding doors which opened to the rear from the kitchen. Mr. Monger ran around the end of the building, and saw the two men running. Someone called the police, who arrived within three or four minutes.

Officer Buck attempted to follow the trail of the fugitives with a police dog, but the dog lost the trail when it crossed a paved highway. Mr. Monger described both men to Officer Buck, in considerable detail as to clothing, and mentioned the diamond shaped scar or mark on the right cheek of one of the men. Aaron Stanley, a 12 year old boy who was riding his bicycle up and down the street, told Officer Buck that he had seen two young men, both of whom he knew, at the curb in front of the house next to Mongers’, and when he next rode down the street a very short time later, the police wagon was coming. He said that the young men he saw were Vivan Dennis and “Fuzzy”.

He described the clothing each was ⁴⁷¹ 'wearing. Officer Buck knew both of the young men. He knew that “Fuzzy” was a commonly used nickname for Louis Sallie. He had seen Sallie and Dennis together a half hour before the burglary, a few blocks away, dressed as described by Mr. Monger and by Aaron Stanley.

Appellant’s motion to suppress identification testimony was heard by the trial judge after the jury was selected and sworn, but out of the presence of the jury. Appellant offered evidence at that hearing through Detective Gruber, Officer Buck, and Mr. Monger. The day after the burglary, Officer Buck asked Detective Gruber to make up a group of photographs, including Sallie and Dennis, and show them to Mr. Monger. The group consisted of 12 black and white “mug shots” of young Negro males.

Each subject is shown full face, from the top of the head to approximately the breast line. We have examined all of the photographs carefully, and we can find nothing other than face and hair which would distinguish one from the other. It appears that three or four of the 12 were wearing a mustache. Sallie was not.

None had a beard. Five or six, including Sallie, wore what is called a bush, or modified bush, hair style. There are easily distinguishable variations among the 12 photographs in the skin shade, eyes, foreheads, lips, and general facial contours of the subjects. On Sallie’s photograph can be seen a diamond shaped mark on his right cheek.

We need not relate the details of the procedure by which Detective Gruber showed the book of 12 photographs to Mr. Monger the next evening, except to say that there was not even a hint of anything suggestive about it. Mr. Monger readily identified Sallie. He did not identify Dennis. He noted the mark on Sallie’s cheek as part of the reason for identifying him.

Appellant relies heavily upon that mark, as well as upon differences in age, height, and weight of the subjects in contending that the very selection of the photographs making up the group was impermissibly suggestive. Whatever differences a viewer of these photographs may discern in the age, height, and weight of the subjects are, to say the least, not significant, and are as likely as not to be ⁴⁷² incorrect. The issue of suggestiveness narrows down to the diamond shaped mark which could be seen on Sallie’s face in his photograph. That mark was indeed an identifying characteristic.

Observation of identifying characteristics is the core of any identification process. Differences among individuals are the very means by which one may be distinguished from all others. Similarities can lead to confusion, and even to mistake. The not-unheard-of trick of planting a look-alike in the courtroom surely is not employed to aid in the search for truth, but to thwart that search.

Appellant argues that his mark is unique. Every individual is unique. The mouth, the lips, the teeth, the chin, the cheeks, the nose, the eyes, the forehead, the ears, the hair, or any combination of two or more of those and other features, make every individual unique. They make him different from all others.

They are the basis upon which any person is visually distinguished from other persons. The more subtle the distinctions, the more difficult the identification, and the greater the potential for error. If the burglar in this case had not had such a distinctive mark, then Sallie’s mark would have cleared him forthwith as a suspect. The fact that the burglar had the mark, and that Sallie had it, and that the mark is unique, made his identification inevitable indeed, but also made it more rather than less reliable.

In 1 Wharton’s Criminal Evidence § 188 (Torcia 13th ed. 1972) the author says: “The identification of the accused by the witness may be based on a recognition of his physical characteristics and appearance, or by some mark on, or peculiarity of, the accused.” We do not find suggestive the photographic viewing by Mr. Monger, nor do we see in it any deviation from the principles expressed in Simmons v. United States, 390 U. S. 377 , 88 S. Ct. 967 , 19 L.Ed.2d 1247 (1968), where the Supreme Court said, at 384: “* * * we hold that each case must be considered on ⁴⁷³ its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” In Smith and Samuels v. State, 6 Md. App. 59 , 250 A. 2d 285 , cert denied, 254 Md. 720 , 255 Md. 743 (1969), cert, denied, 397 U. S. 1057 , 90 S. Ct. 1402 , 25 L.Ed.2d 674 (1970), Judge Orth analyzed the law relating to photographic identifications, and outlined the procedure to be followed when they are questioned. Among the many other cases in which we have considered allegedly impermissible suggestiveness in a photographic viewing are Jordan v. State, 19 Md. App. 283 , 310 A. 2d 575 (1973); Cousins v. State, 18 Md. App. 552 , 308 A. 2d 692 , cert, denied, 270 Md. 738 (1973); King v. State, 18 Md. App. 266 , 306 A. 2d 258 (1973); Dorsey v. State, 9 Md. App. 80 , 262 A. 2d 591 , cert, denied, 258 Md. 727 (1970); and Nance v. State, 7 Md. App. 433 , 256 A. 2d 377 (1969), cert, denied, 256 Md. 747 , cert, denied, 398 U. S. 954 , 90 S. Ct. 1881 , 26 L.Ed.2d 296 (1970). The Nance case is cited in Annot., “Photographic Identification — Suggestiveness”, 39 A.L.R.3d 1000 (1971), at 1011 as stating: “* * * that the rule to be followed with regard to photographic identifications is that if it is shown that a pretrial identification by photograph, on the totality of the circumstances surrounding it, was so unduly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of evidence of such identification or a subsequent in-court identification is determined pursuant to the exclusionary rules * * *.” We hold that there was nothing about the photographic viewing by Mr. Monger that would reduce the trustworthiness of a subsequent courtroom identification by him. The trial judge correctly denied the motion to suppress. ⁴⁷⁴ Appellant next argues that even though the judge’s ruling permitted a courtroom identification by Mr. Monger, the identification made by the witness in court was not sufficient to stand up against a motion for judgment of acquittal.

He refers to that phase of Mr. Monger’s testimony before the jury which he says constituted the identification. The transcript reads: “Q [By Mr. Lilly, Assistant State’s Attorney] Now, this second man that you saw, do you remember what he was wearing? A He was wearing a sweat shirt with green plaid pants. Q Do you know what color the sweat shirt was?

A Gray. Q Now, was there anything else unusual about this man that you saw, this second man? Could you describe him for the jury? A He was about five foot-seven or five foot-eight, kind of hard to tell, through the mail slot, how tall he actually was.

And when he turned and started to run away I noticed that on his right cheek he had a diamond-shaped scar. Q On his — A Or a diamond shape on his right cheek. Q A diamond-shape scar, did you say? A Right.

Q Do you remember anything else about this man? What kind of hair did he have, do you remember? A He had a — it wasn’t really a big Afro, it was Afro style but it was close, it was not clipped close but it was packed in close. Q And do you know what race this man was?

A He was a black male. Q What about the first man, what race was he? A He was black also. ⁴⁷⁵ Q Now, at this time, I would ask you to look around the courtroom and see if you can identify the second man who you saw. Is he in fact present in the courtroom now?

MR. D’AVELLA [Defense counsel]: I am going to have to object * * * THE COURT: Overruled. You may answer. Q (MR.

LILLY) You may answer the question. A He is sitting there in the blue shirt. Q I see four men in blue shirts there in the courtroom. A He is sitting with both hands stuck around the side of his face.

Q Would you walk over and indicate? A This man here. Q The man seated next to the lady with the white blouse? A Right.” Appellant refers also to the testimony of Aaron Stanley, who made an identification in court which appellant likewise says was not sufficient to enable the jury to find the necessary criminal agency.

The testimony of Stanley at that point was: “Q [By Mr. Lilly] Aaron, I will ask you again, what was the identity of those two people that you saw, one standing up and one sitting down? Q Now, do you know their names, the names of these two boys or men? A Uh-huh. Q What are their names?

A Vivan and Fuzzy. ⁴⁷⁶ Q Now, this Fuzzy that you saw sitting there, was he standing or sitting? A Looked — if I could picture right, it looked like he was sitting. Q He was sitting and Vivan was standing. Do you know Vivan’s last name?

A (Witness nodding in