Vernon v. State

Orth, J., delivered the opinion of the Court. Anthony Vernon, Jr., alias Ronald Vernon Cowan, 1 was convicted at a bench trial held in the Criminal Court of Baltimore on 5 and 6 October 1970 of robbing and assaulting Ramolo DiBlasio on 9 February 1970. He claims error in the admission of a judicial and extrajudicial identification of him as the criminal agent and questions the sufficiency of the evidence to sustain the convictions. DiBlasio, the owner of the Fleet Furniture Company, (was alone in his place of business at 1736 Fleet Street in Baltimore City about 2:00 P.M. on 9 February 1970 when two men came in.

He saw two other men outside the store. 2 The two in the store indicated that one of them wished to buy furniture and both looked around. ⁴³² A selection was made and an order written when the prospective buyer said he wanted the bedroom set in the back part of the store. They went back and the man said a drawer was loose. “So, I looked at it, and I says, ‘Well, I can’t do anything about that.’ And I turned around and walked away from him. And before I took a couple of steps, he — this fellow came up from behind me and grabbed me around the throat with his arm, an arm-lock — whatever they call it — and brought me down to the ground, to the floor, and proceeded to choke me very strongly. * * * He had his arm around my neck — throat. So, he had me for, I don’t know, a long time, and I couldn’t say anything.

I was only able to gasp for air. So, I was able to sort of roll around and get his arm from my throat, and I says, ‘Let me go.’ And he just, you know, kept his arm tightened around. And the other man I couldn’t swear that he was on me, but this one had me down good. So then I says — well, I says, T don’t have any money.’ I says, ‘You can search.’ I says, ‘The only thing I have is a check that came in from the finance company that morning for five hundred dollars.’ I says, ‘It’s in the desk drawer.’ I says, ‘Go ahead and take it.’ So, not saying a word — I mean, he just kept choking me, and then I felt them turning me over.

They had me down on the floor, and they were dragging me back, these two men — one was dragging, one was pushing. I could feel that. * * * So, they did manage to push and drag me back to another little partition in the back of the store, and I, then, was able to observe three pair of shoes all around me. And they just weren’t saying anything. And the one did say, ‘Shut up, shut up.’ And they proceeded to tie me up.

And one I did see as I turned from the floor, face down. * * * Well, I couldn’t tell [what they tied me up with] but after it was over with, there was a piece of old television cable — wire — and one wanted to put a handkerchief in my mouth, and I felt blows, and I did see those furniture legs — there was one leg that was that long — I observed that in one man’s hand (indicating) [about 12 inches]. * * * And, ⁴³³ then, I also observed at another point one short, heavy-leg that is — that is not a furniture leg. * * * I would say it’s about six inches long and about three inches around, which was unusually heavy for a furniture leg of that type. So, they were saying, ‘Shut up, put your hands up.’ I says, T can’t.’ So, finally, I was able to get my hands out into the back where they wanted to tie me up. So, then, at that point, I felt that I was being released, and I saw two pair of feet go up the rear steps, which 1 was about four feet from the steps where they had me down on the floor. * * * Well, then, I was able to roll over on my back, and one man that had not been in the store — one of the first two — he came from the sidewalk, evidently, and he opened a knife and put it to my throat, and he said, ‘If you say anything, I’ll shove this right in.’ * * * Well, I would say it was a long knife like that — the man did open it. * * * But, there was a knife against my throat that was opened up, pulled from the pocket and opened up. * * * He said, ‘If you say anything, I’ll shove this right in. * * * He went up the steps. * * * Those same rear steps that only lead to the second floor. * * * I was, then, able to stand up, and I started to exit from that little room in the back, through the doorway, leading into the main part of the store, when I noticed a police officer, and I don’t know whether I approached — whether I said the first words, or he asked me, ‘Does this man work here?’ He had a man down at the door. I said, ‘Nobody works here but myself.’ I says, ‘There’s nobody supposed to be in this store but myself.” Twenty-five dollars was stolen from his person.

DiBlasio was unable to make a judicial identification of any of the men he saw during the robbery. Joseph Borzymowski was double-parked on Aliceanna Street near Broadway about a block and a half from 1736 Fleet Street about 2:00 P.M. on 9 February 1970. A car bearing a District of Columbia license tag pulled around him and parked by the curb about 40 feet in front of him. Five men were in it.

Four got out and scattered —went in different directions; the driver remained in the ⁴³⁴ car. Two of the men went up Regester Street and one went up Aliceanna Street to Ann Street by himself but followed by the fourth man. Borzymowski followed in his car and saw the man who went to Ann Street turn into Fleet Street. Borzymowski did not then turn into Fleet Street but circled around and came down Fleet Street in the opposite direction.

He saw a man standing in the doorway next to the furniture store and another looking in the window. He said to himself: “They are holding up the furniture store,” gave “the gas to the car,” drove to a telephone booth at Broadway and Fleet Street, called police and told them there was a holdup in progress. He identified a car in a photograph shown him as the car he had seen. He made a positive judicial identification of appellant as one of the men he had seen in the car and as one of the two who went up Aliceanna Street then north on Ann Street, west on Fleet Street, stopped at the furniture store, and stood outside the doorway, looking up and down.

Appellant had on white tennis shoes and dark glasses. Borzymowski later that day viewed a lineup at Central Police Station. The court asked if appellant raised a question as to the presence of counsel at the lineup and was told that he did. Borzymowski was temporarily removed from the stand so the State could adduce evidence as to the lineup.

Officer James McCloskey of the Baltimore City Police Department was present at a lineup held about 7:00 P.M. on 9 February 1970 at Central Police Station. Appellant was in the lineup. Over fifteen people viewed the lineup —“there was six suspects we had, plus there was three other suspects that they had for some of the holdups in the city and county.” He identified the lineup sheet. It showed that 9 men were in the lineup and that it was viewed by twenty-five persons.

Joseph Borzymowski and Annetta Borzymowski, his wife, made a positive identification of appellant. 3 The sheet bore the notation “Att. ⁴³⁵ Martin B. Levinson present during Line up.” McCloskey said the lineup had started, then counsel came in. Mr. and Mrs. Borzymowski were the twenty-third and twenty-fourth persons to view it and counsel was present at that time. On cross-examination by defense counsel Levinson, McCloskey reiterated that the attorney made his appearance during the lineup but he could not say when the attorney left. Appellant testified on the issue of the lineup.

He said he was arrested about 3:00 P.M. on 9 February, taken to the police station, advised of his rights and remained silent. After 6:00 P.M. he was permitted to call his lawyer, Jack Cweiber, who said he would send someone down. An officer had told appellant a lineup would be conducted. He said he was in the lineup quite a while — 15 or 20 minutes after it started — before he heard Levinson call out “Anthony, Pm here.” Levinson took the witness stand.

He said he had been requested by an associate, Morton Edelstein, to be at the lineup. He picked up the call from his answering service about 7:00 or 7:30 P.M. and arrived at Central probably about 7:30 quarter to 8:00 to represent appellant at the lineup. He saw appellant in the No. 1 position. He had information about another offense allegedly involving appellant which had been committed in Baltimore County.

Appellant was identified by someone with respect to the Baltimore County offense. 4 Levinson talked to this witness, saying “Well, it’s pretty difficult to pick somebody out in this type of room, isn’t it.” The witness did not know that Levinson was a lawyer and said, “Yes, can’t be too sure.” Levinson testified: “At that point I figured I would quit. I figured I was ahead at that point. I thought I would have some meat, later.” He explained that he meant that what the witness said would enable him to impeach the identification made. “So, at that point, I left — that was the point I walked out of that ⁴³⁶ room, and was not there when — and was not there representing Anthony at the time he was picked out by [Mr. and Mrs. Borzymowski].” He was asked by the court why he walked out. He replied: ‘T have no excuse for that.

The only reason I walked out was that I said, well —I said to myself, ‘Well, they picked out Anthony,’ and I figured, ‘Well, it didn’t make any difference to me, at that point, whether ten people had picked him out or one individual had picked him