Spell v. State

Lowe, J., delivered the opinion of the Court. Bruce R. Spell was convicted of robbery after being tried by a jury in the Criminal Court of Baltimore. He was tried jointly with Gloria Matthews after the two of them had been ³²⁴ arrested near the scene of a taxicab robbery. The arrest precipitously followed an immediate report by the victim and verbal description over the police radio.

A prompt identification by the victim followed a confrontation upon apprehension. Relying upon Eley v. State, 288 Md. 548 (1980), appellant contends that it was error to preclude his argument that a "lineup” should have been conducted. After arguing to the jury that the one-on-one confrontation was an overtly suggestive procedure, appellant commenced to point out that the police did not even test the identifying witnesses’ reliability by requiring an identification from a lineup. The court sustained the state’s objection to such an argument, reasoning that "There was no line-up in evidence.

I will sustain the objection. There was no evidence. That was the evidence, there was no lineup.” Appellant responded that this was precisely what he was contending. "I understand, but I am commenting on why there should have been a line-up.” In other words, he was detracting from the reliability of what was done by pointing out what he believed should have been done.

Eley, supra, reversed a conviction, appellant points out, because Eley was precluded from arguing that the state’s unexplained failure to produce fingerprint evidence should lead the jury to infer that the evidence would have been unfavorable to the State. The State contends that Eley was narrowly written to apply precisely to available fingerprint evidence in the absence of positive identification by a witness or other such reliable evidence. According to the State, the Court of Appeals carefully pointed out the factual absence of a positive identification and the unique fact that the Court had "taken judicial notice of the high degree of reliability accorded [fingerprint] identification.” 288 Md. at 553-54 . ³²⁵ Here there was a "show-up” confrontation identification uncontested by appellant. In contrast with "judicial notice of the high degree of reliability accorded” fingerprint identification by the Court in Eley , the State points to the express reluctance of that same Court to establish lineup identification as better than a prompt, quick show-up held under proper circumstances, which was the case before us.

See Foster & Forster v. State, 272 Md. 273, 297-98 , cert. denied, 419 U.S. 1036 (1974), quoting Stanley v. Cox, 486 F.2d 48, 54-55 (4th Cir. 1973). Indeed the Supreme Court itself is loathe to evaluate the comparative reliability of different types of eyewitnesses’ identifications, notes the state, referring us to Neil v. Biggers, 409 U.S. 188, 200 (1972); and, it should be noted here that no testimony was offered on the relative reliability of either method as appears to have been done in the Biggers case. While it is hard to conceive that Eley intended to apply a broad permit to all defendants to argue the absence of barely relevant investigating techniques unused (and perhaps unnecessary) either for apprehension or conviction, we are confronted with the fact that the role of the Court of Appeals (as opposed to our own) is a contemplative one writing primarily principles to guide bench, bar and litigants in the future rather than to decide cases narrowly restricted to their facts as is our wont. We are the court of