Thompson v. State

Murphy, C.J., delivered the opinion of the Court. Appellant was found guilty by a jury in the Circuit Court for Prince George’s County of (1) armed robbery of James Little on July 26, 1967, and (2) armed robbery of Charles Staley on August 11, 1967. He was sentenced in each case to an indeterminate period not to exceed ten years under the jurisdiction of the Department of Correction, the sentences to run concurrently. The principal contention on this appeal is that the in-court identification of the appellant by the victims of the ⁵² crimes was improperly admitted under either United States v. Wade, 388 U. S. 218 , Stovall v. Denno, 388 U. S. 293 , or Simmons v. United States, 390 U. S. 377 .

I The pertinent facts relating to the armed robbery of Little are these: On July 26, 1967 at approximately 1:30 a.m. James Little, an employee of the Seven-Eleven Store near Laurel, was robbed at gun point in his employer’s establishment by two Negro males. At the trial, Little was asked whether he saw either of the two robbers in court. Objection was made to such identification by the appellant, presumably on the ground that a pretrial photographic identification was made by the witness which was so impermissibly suggestive as to taint any in-court identification.

Out of the presence of the jury, evidence was introduced which showed that several days after the crime, Little viewed a number of police photographs but did not identify appellant as one of the robbers since his picture was not among the photographs shown to him; that subsequently he was shown approximately fifty more photographs by the police from which he picked out appellant as one of the men who held him up: and that within this group of fifty photographs there were three different pictures of appellant, and that Little, in identifying appellant, selected each one of them. The evidence further indicated that the police in no way prompted Little’s identification, although on the way to testify at the trial, Little was told that appellant was involved in three robberies. Little testified that this information did not fortify his conclusion that he had picked the right man from the photographs. After the trial judge overruled appellant’s objection to the prospective in-court identification, the jury was returned, and Little identified appellant at the trial.

The State also introduced into evidence the fact of Little’s pretrial photographic identification of appellant, together with the circumstances under which it was made, and also adduced evidence showing that Little was but two feet from the appellant during the robbery, and observed him over a period of from five to ten minutes. It was also shown by the evidence that Little described appellant to the police shortly after the crime and that his description corresponded generally with appellant’s features. ⁵³ We find no merit in appellant’s contention that the lower court erred in admitting the in-court identification on the ground that it was the product of an unconstitutionally tainted pretrial photographic identification. As we noted in Gibson v. State, 5 Md. App. 320 , any confrontation between a victim of a crime and the accused for identification purposes, including a photographic identification, may be conducted under conditions so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law. 1 Whether the accused’s right of due process of law was violated in the conduct of such a confrontation depends on the totality of the circumstances surrounding it, Stovall v. Denno, supra, but a photographic identification will be set aside only if the procedure used was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, supra. It is not clear from the evidence whether appellant’s photograph was the only one to recur in the group of fifty photographs shown to the witness.

While we can readily envisage a case in which the multiple inclusion of a suspect’s photograph among a group of photographs shown to an identifying witness may be so emphasized or highlighted as to constitute a denial of due process within the rationale of Stovall or Simmons , we think each case must necessarily be judged on its own facts. As indicated, the record before us does not disclose whether other persons’ photographs, like that of appellant, recurred among the fifty photographs shown to the victim. Nor is there any evidence to indicate, one way or the other, why the police included three different photographic views of the appellant within the group shown to the victim. It may have been that the police, in including three different photographs of appellant, intended to put the identifying witness to a severe test of his perceptive powers so that, for example, should he identify but one photograph of the appellant but not the other views, ⁵⁴ such an identification would be considered by the police in the course of their investigation