Veihmeyer v. State

Thompson, J., delivered the opinion of the Court. Thomas Frederick Veihmeyer, the appellant, complains of a conviction of robbery with a deadly weapon and assault and battery in a jury trial in the Circuit Court for Montgomery County. He alleges that there was a failure to suppress evidence obtained as a result of an illegal arrest; that the trial judge made a prejudicial remark in the presence of the jury; that the gun and bullets, offered into evidence, were admitted without a sufficient showing of their connection with the appellant ; that a police officer was allowed to testify as to an unauthenticated telephone conversation between the officer and the victim of the robbery who in the conversation reported the robbery. In the early morning of July 26, 1966 Mr. Stephen Lansing, an attendant at the Lansing Service Station in Montgomery County, Maryland, was cleaning up the station when a 1963 white Chevrolet convertible with a black top, occupied by two men, drove into the station.

The driver got out, asked him for the key to the rest room and one dollar’s worth of gasoline. ⁷⁰⁵ After returning from the rest room, the driver came into the station office and gave the attendant a $10 bill in payment for the gas. When the attendant opened the cash register, the driver attempted to take money out of the register. The attendant resisted until the passenger appeared and pointed a pistol at him. The attendant was forced into a back room, tied up, and some of the stock and inventory piled on top of him.

After taking the money ($86.00) out of the cash register, the two men left. The attendant managed to get to a telephone, call the county police, and report the robbery. He gave a description of the men and the car to the police, and while he was still talking on the phone, a police cruiser arrived on the scene. The next time he saw the two men was at 8:00 A.M. the same morning when he was brought to a police substation, where he identified the two men in a line-up, Veihmeyer being one of them.

He also identified Veihmeyer at the preliminary hearing, and at the trial, as the driver. Officers Tihila and Kiliany, of the Montgomery County Police, were cruising when they observed a 1963 white Chevrolet convertible with a black top. It fitted the description of a “lookout” which they had received from their dispatcher in reference to an armed robbery that had recently occurred. They gave chase, but they were unable to approach the vehicle until it came to rest behind the Governor’s House Motel.

In the darkness they heard two people running from the auto, each in a different direction. Officer Tihila caught one, a Norman Bork; the other escaped. The officers transported their prisoner to a substation, and were ordered to return to the scene to search for a weapon. On the return trip, while stopped for a traffic signal, they observed a passenger in a taxicab, which had driven up alongside their vehicle, attempting to hide his face.

The passenger was wearing clothing similar to the description given to them over the “look-out.” They stopped the cab and interrogated the passenger. Because of the similarity to the broadcast description and a scratched arm (similar to Bork’s), and his wet boots (the ground around the area where the 1963 Chevrolet came to a stop was wet) they arrested the suspect, who was later identified in a line-up by Lansing. The suspect was the appellant, Veihmeyer. ⁷⁰⁶ In the meantime, the police had searched the grounds behind the Governor’s House Motel, where the 1963 Chevrolet had been found, and discovered a pack of cigarettes within a cellophane wrapper in the glove compartment of the auto. The wrapper was dusted for fingerprints and the fingerprints of the appellant were found thereon.

The auto had been “hot-wired,” and did not belong to either suspect. A pistol and shells were discovered near the automobile approximately 36 hours later. Veihmeyer testified and denied any participation in the crime. Veihmeyer’s first contention is that his arrest was illegal and therefore the admission into evidence of a photograph of the line-up was a result of the illegal arrest and therefore not admissible under the “fruit of the poison tree” doctrine cited by the Supreme Court in the case of Wong Sun v. United, States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L. Ed. 2d 441 .

At the time the photograph was offered into evidence, the only objection was based upon the authenticity of the photograph. Therefore this issue is not properly before this court. Maryland Rules 522 d 1 and 725 f (which applies the civil rule to criminal trials.) Wilt v. Wilt, 242 Md. 129 , 218 A. 2d 180 . There was a subsequent motion to suppress the evidence.

This, however, came too late. See Maryland Rule 729. In Tender v.