Townsend v. State

Orth, J., delivered the opinion of the Court. We held flatly in Jones v. State, 9 Md. App. 455 , certiorari denied, Court of Appeals of Maryland, 6 July 1970, 258 Md. 728 , that the question of the admissibility of a judicial identification was not before us because it came in without objection made when it was offered. Prior to trial the defendant had moved to exclude evidence of identification and the trial court denied it after a full evidentiary hearing. We said, at 457: “We pointed, out in Smith and Samuels v. State, 6 Md. App. 59, 67-68 , that evidence of identity of a defendant may be challenged by a motion to exclude cr suppress such evidence made before or during trial or by an objection to the evidence when it is offered.

Maryland Rules 725, 522. But this does not mean that because a motion to exclude or suppress such evidence is denied, the objection to the evidence is preserved on appeal. Further objection must be made to the introduction of the evidence at the trial on the general issue as required by Rule 522 d 2. Under the dictates of that Rule objection must be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent.

Otherwise objection shall be treated as waived”. Here, as in Jones , there was a motion made before trial and denied after a full evidentiary hearing. Here, as in Jones , at the guilt phase of the proceedings a judicial ⁴⁸⁹ identification of the accused by the victim and another eyewitness as the felon was received without objection. Here, as in Jones , we hold that the question of the admissibility of this evidence is not properly before us.

As the questions presented by Alan Joseph Townsend on his appeal from a judgment rendered upon his conviction by a jury in the Criminal Court of Baltimore of robbery with a deadly weapon go only to the admissibility of the judicial identifications, our holding is dispositive of the appeal. We observe that although appellant moved to strike the judicial identifications at the close of the evidence offered by the State, the motion, in the circumstances, was too late and its denial was not an abuse of judicial discretion. We further observe that in any event, assuming arguendo, that the line-up and photographic viewing procedure were illegal as appellant claims, the judicial identifications were properly admissible because there was clear and convincing evidence that they had an independent source. And also even if the judicial identifications were admitted in error, we could say that the error was harmless beyond a reasonable doubt.

At the hearing on the motion to suppress, the victim, Delores Kirner, assistant secretary-treasurer and part-time teller of the Hearthstone Savings and Loan Association, testified that she recognized appellant as soon as he came in the Association’s office about 10:45 A.M. on 17 September 1968 as the man who had been photographed in the act of robbing another savings and loan association several months before. She had seen that photograph in the newspaper. Hé came over to her, an arms length away, showed her a pistol, demanded and took money from her possession. The lighting was excellent. “We have fluorescent lighting in the ceiling.

The whole ceiling is lit up. * * * It was a beautiful day, sunshiny”. She identified him in a line-up. She made a positive identification of him at the hearing and when asked whether she did so “because you remember him from the date of the