Tobias v. State

Wilner, J., delivered the opinion of the Court. The appellant, Costello William Tobias, and a co-defendant, Michael Robinson, were charged in a multi-count indictment with rape, robbery with a deadly weapon, breaking and entering, larceny, carrying a dangerous weapon, and a variety of other related crimes, all arising out of incidents alleged to have occurred on March 5, 1976. After a series of preliminary proceedings, some of which are discussed below, Michael Robinson elected to plead ⁶⁰⁷ guilty to one count of rape and to testify against appellant. Mr. Tobias was tried before a jury in the Circuit Court for Prince George’s County, and was convicted of rape, robbery with a deadly weapon, grand larceny, and carrying a dangerous weapon.

He was thereupon sentenced to imprisonment for 25 years for rape, ten years for robbery with a deadly weapon, to run consecutively to the 25-year sentence, and five years for larceny, to run concurrently with the ten-year sentence. No sentence was imposed upon the conviction for carrying a dangerous weapon. In this appeal, the appellant raises two questions: (1) Was it reversible error for the trial court to deny appellant’s motion to dismiss the indictment when the State suppressed the exculpatory photograph picked out by the prosecutrix on the day of the offense; and (2) Was it reversible error for the trial court to admit into evidence the video tapes of the police fencing operation and allow the State to stop the tapes and make commentary on what the jury was allegedly seeing? At about 1:00 p.m. on March 5, 1976, Mrs. Kathleen Pitts, then eight months pregnant, was at her mother’s home.

She was alone and had been sleeping, when she heard a knocking on the door. Although her first reaction was not to answer, the knocking was loud and persistent, and she eventually opened the door. Standing there was “a short black guy”, who appeared to be confused, and asked directions to an “unemployment center”. He finally asked permission to use the telephone, which Mrs. Pitts refused with the unfortunate comment that she was pregnant and alone.

She asked the man to leave, and was about to shut the door, when the man pulled a knife and backed her into the hallway and up the steps. At this point, another man entered the house wearing a yellow plastic “construction” hat. This second man was described by Mrs. Pitts as taller and heavier than the first. ⁶⁰⁸ The two men put on what appeared to Mrs. Pitts to be white surgical gloves, then took her upstairs to her parents’ bedroom and tied her hands and feet. With one of them alternately guarding her, the two men proceeded to search through the house.

After twice appearing to leave and then returning, the short man took Mrs. Pitts into the bathroom, tied her to the towel rack, and raped her. Following this attack, the tall one appeared with a butcher knife, cut off her clothes with it, required her to perform fellatio, then took her into the bedroom and raped her. She was then returned to the bathroom and retied to the towel rack. Mrs. Pitts testified that, as the two men left the house, she observed that they took with them a diaper bag “full of things they had taken from my parent’s room” and a movie projector.

At trial, Mrs. Pitts identified a diaper bag, two cameras, a light meter, a flash attachment, and a movie projector, which were ultimately admitted as State’s exhibits. The cameras, light meter, and flash attachment Mrs. Pitts stated had been in a picnic basket in her parents’ bedroom and were carried away, along with the movie projector, by the two men. Upon being recalled to the stand, Mrs. Pitts identified the appellant as the “short man”. Phyllis Thomas, Mrs. Pitts’ mother, followed her daughter to the stand and identified the cameras, light meter, flash attachment, and projector as belonging to her or her husband and having been taken from her home on March 5, 1976.

Charles Battle, a detective with the Metropolitan (D.C.) Police Department, then testified about a combined law enforcement operation known as Sting II, or “Gotcha Again”. This was an undercover “fencing” operation conducted in an old warehouse in the District of Columbia, the function of which was to buy stolen merchandise in order to attract, and ultimately arrest, the thief, and then return the property to its rightful owner. Detective Battle stated that his role in this operation was to serve as the “counter man” — i.e., the person who initially ⁶⁰⁹ inspected merchandise brought to the warehouse, negotiated price with the “seller”, and finally made the purchase. Upon making a purchase, Battle would place his initials on the property and then turn it over to another officer.

Battle stated that all transactions were video taped and recorded, and he brought with him, under subpoena, a tape that he said fairly and accurately represented a transaction he had with appellant and Robinson between 2:06 and 2:24 p.m. on March 5, 1976. The video tape, with synchronized audio, was then played on a television screen before the jury. During the running of the tape, Detective Battle, upon questioning by the State’s Attorney, described and commented on certain aspects of what was being shown. The relevant part of this colloquy was as follows: “Q Detective Battle, who are the two individuals indicated in the TV screen right now? “A Here is myself, and the gentleman here is Mr. Costello Tobias. “Q Do you see him here in court? “A Yes, sir. “Q Point to him, please. “A (Indicating).

This gentleman here. “MR. BONSIB: Indicating the defendant as one of the individuals in the picture.” After running a while longer, without further comment, the tape was stopped at the State’s Attorney’s request, and this conversation occurred: “Q Over to the right there, there is what appears to be a calendar and a clock. Would you tell the jury what the function of that is? “A The calendar and the clock is to have the day you come in to work, you change the dates. That is the calendar, and the calendar — camera is right behind my right shoulder, and each and every incident would come up on the screen would be the ⁶¹⁰ calendar date would be on it and the date and time.

Also down here it has the location which is Location Number 2, which indicates that it is Operation Number 2, Incident Number which is 2196, and myself as the actor, Officer C. C. Battle. “Q That calendar indicates March 5th is the date of this? “A Yes, sir, that is correct. “Q And the time according to his clock? “A Approximately 1409 or 10 at this time.” The viewing of the tape then resumed, but was, for a second time, halted at the State’s request, at which point, the record reveals: “Q The other individual behind the diaper bag, who is that individual there? “A That is Mike the record player, sir. That is the name he gave me the first time. Mike the record player. “Q Do you know what his full name is now? Do you recall? “A Not offhand.

I can refer back to my notes. “Q Would you do that, please? “A Michael Robinson, sir.” The tape rolled again, but was again stopped and punctuated by the following: “Q Detective, did you see what Michael Robinson, the individual identified as Michael Robinson, put up on the counter at that point? Did it appear to be what? “I am sorry, that’s Tobias that put it up there. “A Some type of a hat or bowl of something. “Q Do you recall what color it was, or hard or soft substance or plastic, metal, do you recall? “A Not really, I don’t. I couldn’t say.” ⁶¹¹ The tape was then played to completion, following which Detective Battle identified Mrs. Pitts’ diaper bag as “the bag that some of the property was brought into the hole by the two subjects that came in on the film you just saw.” He then proceeded to identify the two cameras, attachments, and projector as having been brought in by Tobias and Robinson and purchased from them by Battle. The State then placed in the record, at the bench and outside the hearing of the jury, the following general description of what the tape showed: “. . . what the jury observed on that video tape was a video tape showing Detective Battle on one side of the counter in the District of Columbia, as testified to by him, and that during the course of playing that tape the individual identified as the defendant [Tobias] walked in, followed a short time later by another individual identified as Michael Robinson, and that during the course of the playing of that tape the property which was identified by the detective was handed over to him and a sum of money was paid for those items.

That would essentially be the substance of the tape that we saw and I think the record should so reflect.” I. Admissibility of the Video Tape Appellant’s second contention, which we shall deal with first, is that the court erred in admitting the video tape into evidence and allowing the State to interrupt the viewing of the tape with commentary. He complains that: (1) He was unable to “interrogate the tapes”, and thus, although Detective Battle was in court and subject to questioning, “the scope of direct examination as to the alleged purchases was limited because the tapes were used to show how the alleged sales were made”, thereby also limiting the scope of his cross examination. (2) Use of the tape was prejudicial to his defense because ⁶¹² (i) of the notoriety of the “Sting” operation, and (ii) it showed appellant in possession of recently stolen goods, from which the jury might infer that he was guilty of rape as well as larceny; and (3) The interruptions and commentary interfered with the jury’s function of deciding the issue of identification. We note that appellant has made no claim, either here or below, that admission of the video tape violated his right against unreasonable searches and seizures under the Fourth Amendment, or his right to be confronted with witnesses against him under the Sixth Amendment; nor has he claimed, here or below, that a proper foundation for admission of the video tape was not laid or that the video tape was not an accurate representation of what it portrayed.

The grounds for his objection are only those enumerated above. When, in fact, presenting his objection to the tape, in the form of a pretrial motion to suppress, his counsel admitted that the objection was not on Constitutional or technical grounds, but instead “goes to the question of relevance of the evidence versus materiality of it and prejudice that may come out.” Although tape recordings of conversations, 1 spectrographic analyses, 2 and testimony based upon closed circuit television 3 have been held admissible in criminal cases in Maryland, at the time this appeal was filed and argued neither the Court of Appeals nor this Court had yet ruled upon the admissibility of video tapes in such cases. Since then, this Court decided Colbert v. State, 37 Md. App. 383 , in which we held that a video tape of a confession was admissible as evidence. Colbert necessarily answered the threshold question of admissibility vel non of a video tape as a form of evidence, but, as noted, it did so in the particular context of a confession.

The nature of, and objections to, the video tape in ⁶¹³ this case were somewhat different than in Colbert ; and, to answer these objections, we shall review, in a somewhat broader context, why and under what conditions, a video tape is a proper and admissible form of evidence. We first should define what it is we are dealing with. At least two courts have considered a video tape to be nothing more than the combination of a tape recording and a motion picture; 4 but while that may be the observer’s sensory perceptions, it is not quite accurate from a technical point of view. According to an Annotation found in 60 A.L.R.3d 333 , 335 (Criminal Prosecution — Videotape Film), “Videotape recording differs from the ordinary methods of recording images in permanent form in that the image is recorded electronically rather than photographically.

Instead of relying on light rays to convey an invisible image, which is then revealed through a chemical process as does standard photography, videotape employs a process whereby the image is sensed by the camera and changed into electrical impulses which can be recorded on the tape.” 5 The effect of this different technique is described by Scott as follows: “Video tape recordings really are motion pictures made by recording both sight and sound electronically on magnetic tape. When made in this way there are no visible pictures and no audible sound until the tape is played back. Therefore, unlike an ordinary motion picture film, the video tape bearing invisible electronic impulses cannot be said to be a series of still pictures.” 6 Video tape recording is a relatively recent innovation, dating perhaps from the 1950’s. It has, of course, been used ⁶¹⁴ rather extensively in the television industry as well as for photocopying.

With respect to its use in court proceedings, Scott states: “Since 1969 a number of decisions have considered the admissibility of video tape recordings, meaning of course the tapes as played back to the trier of fact in the form of a screen image with accompanying sound. These cases fully justify the following statement: Duly verified sound motion pictures of relevant subjects in the form of video tape recordings are admissible in evidence on the same basis as sound motion picture films and subject to the same rules applicable to photographic evidence generally.” 7 The cases do, in fact, support that conclusion. Video tapes depicting confessions, 8 lineups, 9 the scene of a public disturbance, 10 a trail of blood leading from the scene of a crime, 11 the influence of intoxicating liquor 12 have all been held admissible against a variety of objections upon the same basis as photographs. In State v. Newman, 484 P. 2d 473 (Wash. 1971), the court stated simply, “The requirements for the admission of video-tapes should be similar to those for photographs.” Likewise, State v. Thurman, 498 P. 2d 697 (N.M. 1972): “For authentication of still photographs, the required foundation is that the pictures fairly and accurately represent that which is shown by the " pictures.. . .

The same rule is applicable to the authentication of a video tape picture.” ⁶¹⁵ Also Hendricks v. Swenson, 456 F. 2d 503 (8th Cir. 1972), cited and followed in Williams v. State, 542 P. 2d 554 (Okl. 1975). We find both the weight of this authority, as well as the reasoning behind it, to be persuasive, and therefore adopt the conditional rule of admissibility set forth in the cases and treatise cited above: duly verified sound motion pictures of relevant subjects in the form of video tape recordings are admissible in evidence on the same basis as sound motion picture films and subject to the same rules applicable to photographic evidence generally. The rule in Maryland with respect to photographic evidence was set forth in Carroll v. State, 11 Md. App. 412, 414 (1971), cert. den. 262 Md. 745 (1971), as follows: “The general rule is that the admission of photographs which are a correct representation of the person, place or object which they purport to represent at the time when the appearance of such person, place or object is relevant to the inquiry in connection with which the photographs are offered is a determination resting within the sound discretion of the trial court (citations omitted). So whether or not they are inflammatory, whether or not they illustrate and explain relevant matters, whether or not they are of any practical value, and whether or not they are improperly prejudicial are within the exercise of the court’s discretion.” (emphasis supplied).

This rule, which in Carroll dealt with still photographs, was applied by this Court to motion picture films as well in Bremer v. State, 18 Md. App. 291 (1973), cert. den. 415 U. S. 930 (1974). Applying these principals to the case before us, we find no abuse of discretion, and therefore no reversible error, on the part of the trial court in admitting the video tape into evidence. Appellant was charged with larceny and receiving stolen goods, in addition to the sex offenses; and the video ⁶¹⁶ tape of what occurred at the warehouse, where he attempted to dispose of property previously identified as having been stolen from the home of Mrs. Thomas, was clearly relevant and material to those charges. Since his mere possession of recently stolen goods, in the absence of some satisfactory explanation, would permit the inference that he was the thief, 13 thereby placing him in Mrs. Thomas’ home, the video tape was relevant and material to the rape charge as well.

Appellant’s claim that admission of the video tape restricted his right of cross-examination is without merit. Documentary evidence, such as photographs, often supplants the need to examine witnesses extensively. Moreover, in this case, the record does not disclose any attempted questioning of Detective Battle on cross-examination that was objected to on the grounds that it transcended areas covered on direct examination. No doubt the video tape was prejudicial to appellant’s defense, as he claims; but we find nothing in the record to indicate that it was improperly so.

At appellant’s request, the prospective jurors were asked on voir dire, whether and what they had heard about Operation Sting or “Gotcha Again”, and what their opinion was as to its efficiency. Through his ability to challenge prospective jurors for cause and his twenty peremptory challenges, appellant had an ample opportunity to assure himself of a jury that was not improperly impressed with the validity and effectiveness of that operation. Neither do we find merit in appellant’s complaint about the interruption of the video tape and Detective Battle’s explanations as to what it portrayed. Trial courts have, and may exercise, the widest discretion in the conduct of a trial, and that discretion may not be disturbed unless it is clearly abused.

Avery v. State, 15 Md. App. 520, 550 (1972), app. dism. 410 U. S. 977 (1973); Gardner v. State, 8 Md. App. 694, 699 (1970), cert. den. 258 Md. 727 (1970). We find no abuse of discretion in allowing the authenticating witness to identify ⁶¹⁷ the people shown in the video tape, or to explain the purpose of the calendar and the clock. The jury saw the tape, and could judge for itself what it showed and whether Detective Battle’s identifications were accurate.

II

Suppression of a Photograph Appellant’s first, and more serious, complaint is that the State “suppressed” exculpatory evidence, in the form of a photograph, thus bringing the case within the ambit of Brady v. Maryland, 373 U. S. 83 (1963), and some of its progeny and requiring a reversal of his conviction. This contention is based upon the following circumstances. On the evening of March 5, several hours after the attack upon her, Mrs. Pitts was taken by Detective Carol Landrum to the Sexual Assault Center at Prince George’s County Plospital. Detective Landrum stated that, at that center, there was a file cabinet containing two drawers of photographs of known sex offenders.

As Mrs. Pitts indicated that her assailants were black males, Detective Landrum got out the drawer containing the photographs of known sex offenders who were black males. Mrs. Pitts looked through these photographs, and, according to Detective Landrum, picked out two pictures of people that “looked similar to the men who had attacked her.” One of these was a polaroid photograph depicting a man’s profile. It was not a normal “mug shot” with an identification number, and did not show the subject’s full face. This particular photograph was identified only by the name “Charles Williams”.

Detective Landrum stated that Mrs. Pitts picked this out and said that the profile of the man in the picture “looked similar to that of one of the men who had attacked her.” Mrs. Pitts had stated that one of the men was tall and one was short; and the photograph of Charles Williams “looked similar” to the short one. The other photograph that she picked out resembled the tall man. Detective Landrum took both photographs to the records ⁶¹⁸ division and attempted to locate more information on this Charles Williams. She discovered that between eighteen and twenty people by that name had been arrested in Prince George’s County; but, after checking the “mug shots” and identification numbers of each of them, found that none matched the Polaroid snapshot picked out by Mrs. Pitts.

Detective Landrum stated that the snapshot “looked quite old”, probably dating from the 1950’s or early 1960’s and depicted a person between eighteen and twenty years old. On March 30, 1976, nearly three weeks after Mrs. Pitts selected the two photographs, appellant and Robinson were arrested, apparently as the result of an unrelated incident. The next day, Detective Gale went to Mrs. Pitts’ home, and showed her another array of photographs, containing pictures of both appellant and Robinson. Mrs. Pitts testified that she “picked out the picture of the taller one and was positive about that.

I also picked out a picture of the shorter — a picture that resembled the shorter one.” Detective Gale did not testify; and, although the record seems clear that the photograph of the taller person, of which Mrs. Pitts was positive, was that of Robinson, it is not clear whether the photograph of the shorter person, of which she was not positive, was that of appellant. 14 ⁶¹⁹ With the arrest of Robinson and appellant, and upon the assumption that Robinson had been positively identified and appellant had been “tentatively” identified, Detective Landrum saw no further need for the two pictures taken from the Sexual Assault Center; and she therefore returned them to the file there on or about March 31. This, she said, was normal police procedure: once an arrest is made, “you return all other pictures of people who were involved or possibly involved in the case.” The file cabinet, according to Detective Landrum, had a combination lock on it, but the combination was written on the side of the cabinet. Thus, in her words, “any police officer who cared to take anybody up there to view these files had access to them, because they could open the cabinet and show the victim or the witness, whoever, the pictures.” Approximately three months later, in response to appellant’s motion for discovery, Detective Landrum returned to the file at the Sexual Assault Center to locate the two photographs, but found that they were missing. She then checked with all members of the Prince George’s ⁶²⁰ County Police Sex Squad, the Greenbelt Police, the University of Maryland Police, the Maryland State Police, the U.S. Park Police, the State Park Police, and the Cheverly Police in an attempt to locate the two photographs, all to no avail.

She returned to the Sexual Assault Center files each week for four consecutive weeks; but that too was in vain, as were additional efforts by the State’s Attorney’s Office. At some point prior to trial, the photograph of the taller man was located and produced, but the picture of the shorter man never was found. On these facts, appellant filed a pre-trial motion to dismiss the indictments against him. An evidentiary hearing was held, at which Detective Landrum was the only witness; and the motion was denied on the ground that, at the stage of the case, there was not enough evidence from which the court could determine whether the loss of the two photographs 15 was of such magnitude under all the circumstances to justify granting it.

In effect, the court stated that granting the motion then would be premature, but that this decision was without prejudice to a later motion “should the evidence show that [appellant] is denied due process because of the loss of the material evidence.” The motion was renewed at trial, and was again denied. Appellant’s argument was, and is, that, in light of Mrs. Pitts’ inability positively to identify the appellant from the spread of photographs shown to her on March 31 (or, if appellant’s premise is accepted, her failure to identify him at all), and the obvious importance of the identification issue, the missing photograph of “Charles Williams” was critical to the defense. Absent that photograph, he claims, the jury was not afforded the opportunity to evaluate whether the person depicted in it had the physical characteristics of appellant. Mrs. Pitts, as noted, did make a positive identification of appellant in the courtroom.

Thus, the function of the missing photograph could only have been to impeach the credibility of that identification, and, if we assume that it ⁶²¹ was, in fact, appellant’s picture that she tentatively identified on March 31, the credibility of that identification as well. With this background, we now examine appellant’s “Brady” argument. Long before Brady v. Maryland, it had been generally recognized that the suppression or withholding by the State of material evidence exculpatory to an accused may be a violation of due process. This is evident from both the Opinion of the Maryland Court of Appeals and that of the Supreme Court in the Brady case itself. 16 The facts in Brady were as follows.

Two co-defendants, Brady and Boblit, were charged with the felony murder of one Brooks, the homicide occurring during the course of a robbery. The defendants were tried separately, Brady being tried first. It was conceded that both defendants had conspired to rob the victim, and that they had each actually participated in the robbery. One of them had strangled the victim to death (hence the murder charge); and the issue arose as to which of them performed that act.

Boblit had made several confessions, in all but one of which he claimed that Brady had strangled Brooks. In one confession, which was unsigned, he admitted strangling Brooks himself. Those of Boblit’s confessions charging Brady with the actual murder were made available to Brady’s counsel prior to Brady’s trial; but the one which exculpated Brady from the killing was neither disclosed pre-trial nor offered at trial. The State knew that Brady’s only real hope was that the jury might believe his testimony that Boblit had done the actual killing, and thus find him guilty of first degree murder without capital punishment.

Obviously, the withheld statement of Boblit was highly relevant in that context, and the Court of Appeals concluded that its withholding was prejudicial to Brady. Since, in the Court’s view admission of this confession would have been entirely irrelevant as to Brady’s guilt and could only have affected ⁶²² his punishment, the Court remanded the case for a new trial on the question of punishment alone. Reviewing the matter on certiorari, the Supreme Court agreed with the Court of Appeals both as to its statement of the Constitutional principle and as to its actual holding. The statement for which Brady is most noted appears at 373 U. S. at 87 : “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” This statement, not unlike many emanating from the Supreme Court, has produced considerable discussion in literally hundreds of cases throughout the country, as well as in the law journals and legal literature generally.

Many of these cases and literary sources are collected in an Annotation appearing in 34 A.L.R.3d 16 (1970). Two years after Brady , the Court of Appeals, in State v. Giles, 239 Md. 458, 469 (1965), considered the Brady principle in these terms at 469: “While we agree that evidence which is claimed to have been suppressed must be reasonably considered to be admissible and useful before suppression may be said to exist, this is not the sole test in determining when a suppression of evidence can be said to amount to a denial of due process. Not only must the evidence withheld be admissible and useful, but it must be such, if it had been offered in evidence, as would be capable of clearing or tending to clear the accused of guilt — i.e., it must be