Smith v. State

Orth, J., delivered the opinion of the Court. These cases before us on appeal present questions with regard to evidence of the identification of an accused at trial and prior to trial, in substance as to the admissibility of such evidence and procedurally as h> the manner in which it is presented. THF ADMISSIBILITY OF IDENTIFICATION FVIDFNCB At the time the Wade—Gilbert—Stovall trilogy of opinions were decided by the Supreme Court of the United States 1 it was the general rule in this State that a judicial identification of the accused, made under the impartial eye of the court, was admissible. It was also the general rule that a witness’ testimony as to a prior extra-judicial identification “should be admitted for the purpose of corroborating the witness and bolstering his credibility * * Judy v. State, 218 Md. 168, 174 .

And testimony by a police officer or some third party as to an extra-judicial identification by an eye-witness was admissible when made under circumstances precluding the suspicion of unfairness or unreliability, Walters v. State, 242 Md. 235, 239 , where the out of court declarant was present at the trial and ⁶⁴ subject to cross-examination, Johnson v. State, 237 Md. 283. It was admissible whether or not the out-of-court declarant made a positive in-court identification, and thus was admissible not only as corroboration of a judicial identification but as substantive evidence. 2 Johnson v. State, supra, 289. See also Proctor v. State, 223 Md. 394 ; Basoff v. State, 208 Md. 643 ; Wilkins v. State, 5 Md. App. 8 ; Crumb v. State, 1 Md. App. 98 . The weight to be given a judicial or extra-judicial identification was a matter for the trier of fact.

Barnes v. State, 5 Md. App. 144 ; Crosby v. State, 2 Md. App. 578 . An extra-judicial identification is usually made either by a personal confrontation between the witness and the accused or by a viewing of photographs by the witness and the rules above discussed were applicable to both. See Austin v. State, 3 Md. App. 231 . But neither a personal confrontation between the witness and the accused nor the viewing of photographs by the witness is a testimonial or communicative act of the accused and is not within the ambit of Miranda v. Arizona, 384 U. S. 436 .

Barnes v. State, supra. We discussed Wade, Gilbert and Stovall at length in Palmer v. State, 5 Md. App. 691 and Tyler v. State, 5 Md. App. 265 . We found that the rules of Wade and Gilbert apply to lineups, both pre-indictment and post-indictment, and to other pre-trial confrontations “that are not subject to fair and meaningful objective review later at the trial.” 3 In Baldwin v. State, 5 Md. App. 22 , we found that they do not apply to identifications made from photographs. See also Barnes v. State, supra.

Wade and Gilbert were founded on the constitutional right to counsel and they held that a confrontation within their meaning was a critical stage of the proceedings. Therefore, absent a waiver of the right, such confrontation without the presence of counsel for the accused was illegal. They then fashioned exclusionary ⁶⁵ rules as to evidence of identification made at an illegal confrontation. They are: “1) The in-court identifications of the accused by witnesses at such confrontation are to be excluded unless the prosecution establishes ‘by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the confrontation identifications,’ that is that they had an ‘independent source.’ Wade at 240 and 242. 2) Evidence that witnesses identified the accused at such confrontation is per se to be excluded.

Gilbert at 272-274. 3) The admission of evidence, to be excluded under 1) and 2) is prejudicial error unless, in any event, its introduction was harmless error beyond a reasonable doubt, applying Chapman v. State of California, 386 U. S. 18 . Wade at 242; Gilbert at 274.” Stovall held that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after 12 June 1967 at 296. And Stovall also recognized that independent of any right to counsel claim, a confrontation may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. Wade and Gilbert, therefore, affect the rules previously followed in this State with respect to the admissibility of evidence as to a judicial or extra-judicial identification only as to personal confrontations between the witness and the accused declared by those opinions to be illegal by the absence of counsel.

It is only then that the exclusionary rules would apply in determining the admissibility of such evidence. In Stovall the challenged confrontation was prior to 12 June 1967 and thus Wade and Gilbert were not applicable. But the Court said that it was a recognized ground of attack upon a conviction, independent of any right to counsel claim, that a pretrial confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. Such a claimed violation of due process ⁶⁶ of law depends on the totality of the circumstances surrounding it.

Although the Court recognized that the circumstances of a confrontation may result in a denial of due process of law, it found, on the totality of the circumstances surrounding the confrontation there, that due process had not been denied. It did not enunciate exclusionary rules applicable when there is such a denial, but we think it follows that when a confrontation is illegal, whether by the denial of the constitutional right to counsel or the constitutional right to due process of law, the same exclusionary rules would apply. We hold that when a pre-trial confrontation is found to be illegal by the denial of due process of law, the exclusionary rules, enunciated in Wade and Gilbert, as hereinbefore set out, are applicable. Thus the admission of evidence of identification at the illegal confrontation and the admissibility of an in-court identification, as substantive, independent evidence of identity, is to be determined in accordance with those rules.

A viewing of photographs by a witness is not rendered illegal by the absence of counsel for the accused, as there is no constitutional requirement that counsel be then present. Barnes v. State, supra. As to the admissibility of evidence of identity by photograph, the rationale of Stovall applies. In Simmons v. United States, 390 U. S. 377, the Supreme Court, after discussing the hazards of initial identification by photograph, said, at 384: “Despite the hazards of the initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.

The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be ⁶⁷ considered on 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. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U. S. 293, 301-302 , 87 S. Ct. 1967, 1972-1973 , and with decisions of other courts on the question of identification by photograph.” Thus when it is shown that a pre-trial identification by photograph, on the totality of the circumstances surrounding it, was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of evidence of such identification or an in-court identification, as substantive independent evidence of identity, is determined, as when a pre-trial confrontation is shown to be illegal by denial of due process of law, pursuant to the exclusionary rules of Wade and Gilbert, 4 We note that the rules of law of this State relating to identification evidence existing prior to Wade and Gilbert are still effective as qualified by the exclusionary rules enunciated in those opinions.

THE PROCEDURE UPON CHALLENGE OP EVIDENCE OF IDENTIFICATION Evidence of the identity of the defendant may be challenged by a motion to exclude or suppress such evidence made before or during trial or by an objection to the evidence when it is of ⁶⁸ fered. Md. Rules 725, 522. If the motion is made before trial it may be determined by the court before trial or the court may order that it be deferred for determination at the trial of the general issue. Rule 725d.

When the determination of the admissibility of the challenged evidence is made during a trial before a jury, evidence on the issue shall be received out of the presence of the jury. At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. And if such witness made a pre-trial identification, his testimony to that effect is so admissible.

And, the' testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and subject to cross-examination; whether or not he makes an in-court identification. If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this “by clear and convincing evidence” that the in-court identification is based “upon observations of the suspect” by the witness other than the confrontation or photographic identifications.

The test is that quoted in Wong Sun v. United States, 371 U. S. 471, 488 , set forth in Wade, 388 U. S. at 241 : “[Wjhether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” The Court in Wade, at 241, observed that the application of the test in the context of the matter before it required consideration ⁶⁹ of various factors. It gave as examples, “the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.” We think that comparable factors are also to be considered as to confrontations within the meaning of Wade other than lineups and as to the viewing of photographs. If, applying the test, the court finds that the State has met its burden and that the in-court identification has an independent source, it is admissible as substantive evidence.

The question arises, when the court has found that an in-court identification is admissible, whether the evidence produced on the issue of its admissibility must be placed before the trier of fact as with the question of the voluntariness of a confession. Davis v. State, 1 Md. App. 581 . We noted the question in Smith v. State, 5 Md. App. 23 , note 4, but had no need to resolve it. We think it clear that because of the exclusionary rules applicable, the determination of whether or not the pre-trial confrontation or viewing of photographs was legal, is a matter for the court exclusively.

By those rules an in-court identification may be properly admissible even though the pre-trial identification was not. Therefore, it cannot be the obligation of the State to put before the trier of fact evidence of a pre-trial identification which is per se to be excluded as obtained by an illegal procedure and which, if admitted, would require a conviction to be set aside unless shown to be harmless error beyond a reasonable doubt. 5 This is not to say that the defendant cannot cross-examine the State’s witness making an in-court identification at the trial of the general issue, if he chooses, so ⁷⁰ as to bring out the circumstances surrounding a pre-trial identification by that witness even though the court had held the procedure by which the pre-trial identification was made to be illegal, nor does it prevent the defendant from introducing evidence on the matter as part of his case. Such evidence so elicited by the defendant is proper as affecting the weight of the identification evidence produced by the State and the credibility of the identifying witness, matters for the trier of fact. THE INSTANT CASE The appellants 6 and Phillip Leroy Nicholson and Leroy Eugene Stratford were jointly indicted for crimes against the person and property of Frank McElroy.

They were charged with robbery with a deadly weapon (1st count), robbery (2nd count), larceny of an automobile (3rd count), grand larceny (4th count), and assault and battery (5th count). The appellants were j ointly tried before the court in the Circuit Court for Howard County 7 and each was found guilty on the 1st and 5th counts, the court finding that upon the conviction under the 1st count the 2nd, 3rd and 4th counts merged into it. Each appellant was sentenced to 15 years on the 1st count and to 3 years on the 5th count to be served concurrently with the sentence imposed on the 1st count. On appeal each claims error in the admission of evidence identifying him as one of the perpetrators of the crimes and each contends that the evidence was not sufficient to sustain the convictions.

Evidence of the Identity of the Appellants Neither appellant moved before trial to suppress or exclude evidence as to identification. The first witness called by the State was the victim, McElroy. He recounted the circumstances of the crimes and testified that he had looked at photographs and attended a lineup. He said he identified “one or two of them” from the photographs and that he had picked someone out of the lineup.

He was then asked, “Who did you pick out ⁷¹ of the lineup?” At that point Smith’s attorney objected. After lengthy discussion and argument by the appellant’s counsel and the State as how to proceed, all parties and the court agreed, as we read the record, that the matter would be considered by the court on a motion on behalf of each appellant to suppress all evidence as to identifications of them, both judicial and extrajudicial. The State and the appellants offered evidence on the matter. The victim, called by the State, made a positive in-court identification of each appellant.

It was clear from his testimony that he had viewed a large number of photographs on several occasions at the insistance of the police and that he had attended two lineups. It was also clear that he made identifications by these procedures. He said he identified each appellant from photographs, that he picked Smith from a lineup in which there were six men and that he picked Samuels out of another lineup. It also seemed that he made an extra-judicial identification of one of the other two robbers but other than his testimony as to his identification of Smith at the first lineup, it cannot be ascertained with certainty from all of his testimony what other extra-judicial identifications he made and when.

He made abundantly clear, however, that his in-court identification of each appellant was from his observations of them at the time of the commission of the crimes. He was in a car with them for two and a half hours; Smith on the right front seat—“he was looking right at me when he had my wallet”—(taking out the money and looking through the cards in it) ; Samuels was next to him in the right rear seat; although it was dark, the parking lot where the robbers first approached him was lighted and the overhead light in the car was “occasionally” turned on, once for 10 or 15 minutes; he saw their faces; he could identify all four of them; he was beaten by them while out of the car on two occasions, once when they first approached him when he was getting in his car on the parking lot, and again shortly before he was released by them. He said he could identify the appellants “disregarding any pictures” shown him and “disregarding” anything he saw at the time of the lineups. What extra-judicial identifications McElroy made and under what circumstances were clarified in large measure by the testimony of police officers called by the State and evidence pro ⁷² duced by it.

This testimony and evidence showed that McElroy identified Smith at a lineup held at 11:45 A.M. the day after the crime. Samuels was not in that lineup. Five photographs of the lineup were admitted in evidence. A second lineup was conducted more than a month thereafter.

Neither of the appellants were in that lineup. No other lineups were viewed by McElroy. McElroy identified Samuels from a single photograph shown him by the police. The circumstances surrounding that identification are hereafter discussed.

There was testimony by one police officer that McElroy was shown photographs by the police after the lineup but the matter was not further explored on direct examination or cross-examination of him. Smith testifying for the defense on the motion, said he appeared in a lineup on 11 November with Nicholson and four other men. The police brought some people in but no identifications were made. He claimed McElroy did not even view the lineup.

On this evidence the court found that McElroy had identified Smith at the first lineup but at no other lineup and that he had identified Samuels from one photograph shown him by the police but not at any lineup. 8 The Admissibility of the In-Court Identification of Smith On appeal Smith’s contention as to the identification evidence goes only to the in-court identification of him by McElroy. He claims that the lineup at which the extra-judicial identification was made, held after 12 June 1967, was illegal because it was conducted without the presence of an attorney rep ⁷³ resenting him. He does not assert that the lineup was otherwise unfair, either in its makeup or in the manner in which it was conducted and, in any event, we believe that the court could properly find that it was fair from the testimony and evidence before it. Smith argues that since the lineup was illegal due to the absence of counsel, the in-court identification should have been excluded.

He cites the per se exclusionary rule as to the admissibility of evidence of identifications at an illegal pre-trial confrontation but does not apply it to his case. The thrust of his argument is that the State did not show that the in-court identification had a source independent of the illegal lineup and therefore the in-court identification was inadmissible. The court below in denying the motion to suppress found that Smith had waived his right to counsel. Tn Wade, at 237, the Court indicated that