Watson v. State

Murphy, C.J., delivered the opinion of the Court. Appellant was convicted by a jury in the Criminal Court of Baltimore of rape and was thereafter sentenced by the court to life imprisonment. He contends on this ²²⁸ appeal that (a) his pretrial identification- at the police station by the victim was illegal as it was made in the absence of counsel, (b) that as he was the only person shown to the victim at the pretrial confrontation, such procedure was unnecessarily suggestive and conducive to irreparable mistaken identification and, as such, constituted a denial of due process, and (c) that as the in-court identification of appellant by the victim was the product of the illegal pretrial confrontation, the in-court identification was improperly admitted in evidence at the trial. Appellant filed a pretrial motion to preclude the victim of the crime from making an in-court identification of him at the trial on the ground that such identification would be predicated on an illegal extrajudicial identification made in violation of his Sixth Amendment right to counsel under United States v. Wade, 388 U. S. 218 , and Gilbert v. California, 388 U. S. 263 , and/or in violation of his Fourteenth Amendment right to due process of law under Stovall v. Denno, 388 U. S. 293 .

Out of the presence of the jury, the following evidence was adduced on this issue: The victim of the alleged rape, Asella Pow-. ell, testified that in the early evening hours of December 25, 1967, she left her house to locate a cab for a friend at which time she saw “this fellow” walking with “his head down and his hands in his pockets, and his hands very close”; that she knew this individual “from days when he used to play football with the children on Lanvale Street, and when she used to sit on the steps and see him walking by my house, practically every day he was just around, he was a neighborhood boy.” She identified the appellant as that person. Mrs. Powell returned to her home but soon thereafter again left, this time to go to a friend’s house. On her way, she was held up by a person who placed a gun into her side. Mrs. Powell testified that when this occurred, she “looked up” and saw the robber’s face.

She identified the appellant as that individual. The appellant then forced her up an alley, searched through her clothing and between her legs for money and threat ²²⁹ ened to kill her. Mrs. Powell testified that she looked at appellant during this time but that he made her turn her head. He then forced her to have intercourse with him in a sewer pipe.

Mrs. Powell promptly reported the crime to the police and described her assailant as seventeen or eighteen years old, 135 pounds, and from 5'4" to 5'8" in height. Asked whether she told the police at that time that she knew her assailant as a neighborhood boy, she stated, “I think I have, I did tell them that if I am not mistaken.” Asked whether she told the police that she didn’t see her assailant’s face, Mrs. Powell answered: “I told the first time I didn’t see his face, only he would hide his, he would, when I seen his face the first time he seemed to, didn’t know I knew who he was, and he kept the revolver on me, from then on he wouldn’t let me see his face anymore.” She admitted telling the police that she did not think she could pick him out from a photograph. Asked why, if she knew who her assailant was, she didn’t tell the police, she stated: “You don’t just, this is something serious, and I do not jump right up to a conclusion because somewhere along the line when you go to thinking there could be some wrong there, you have to have time to study, you know, those things, study over that thing, don’t jump right then, you don’t jump in the fire right then.” Despite these apparent equivocations, Mrs. Powell testified that she knew all along that the appellant was the person who raped her. She further testified that she ascertained through her own investigation that appellant’s full name was Edward Watson, and that he lived in the 900 block of Strieker Street; that she gave this information to the police at the Western District, but that a ²³⁰ week after the crime had been committed she saw appellant on the street; that he looked her right in the face and came up and stood near her; that as a result of seeing appellant on the street, she went to the Western District Station on January 11, 1968, to “see what was happening” and “to return the name who this boy was”; that the police reviewed their file at that time and told her they would “try to get on this case and see what could be done”; that she “told them the night I gave his name” and the block in which he lived; that subsequently on that day Officer Joseph Mitchell came for her “to see could I identify this person” and took her to the Western District Station; that she was told by the police that they had Edward Watson; and she was asked by the officers to walk “out the back and if I had seen him I was supposed to identify him”; that as she did so she saw the appellant standing alone by the door near the entrance to the police parking lot, and she identified him.

Mrs. Powell testified that she had attended a lineup sometime prior to January 11, but was unable to pick out any of the participants as her assailant. Asked whether her identification of appellant as the person who raped her was “because you remember him from the night of the incident, or because you saw him in the Western District Police Station,” she replied, “No, I remember him and what he did.” Officer Joseph Mitchell testified that at four o'clock on January 11, 1968, Mrs. Powell came to the police station and told him about the crime; that he located a report in the police files and “found the guy’s name, his first name was Edward”; that he knew a person in that neighborhood by the name of Edward, and after checking with other people in the neighborhood who knew an individual by that name, and noting that the description given by them was similar to that given by Mrs. Powell, he obtained appellant’s name and address. Mitchell testified that Mrs. Powell had accompanied him during his preliminary investigation in the neighborhood, but that he had taken her home at approximately 5 :30 p.m.; and ²³¹ that she stated that she intended to return to the station that night. Asked whether earlier that evening he had gone to Mrs. Powell’s home to bring her to the station, Mitchell replied: “That was earlier in the evening, yes, that was around, that was, I had Miss Powell with me when I was asking the neighborhood who this guy was.

That was after I had left the station.” Mitchell testified that he went to appellant’s home for the first time on the afternoon of the 11th; that he was not then at home, but that, on his second visit to appellant’s house, at approximately 8:30 p.m., he found appellant at home; that he told appellant that he was suspected of a rape and asked him to accompany him to the police station, which appellant voluntarily agreed to do; that appellant was not then under arrest, and it was not his purpose to show him to Mrs. Powell or to hold a lineup; that he was not sure that appellant was the person he was looking for; and that upon arriving at the station, he went to get a drink of water and observed Mrs. Powell “leaving the station, and was going out toward the parking lot, and then she called me and said, that is the man right there that raped me,” indicating the appellant ; and that appellant was standing by the door leading to the police parking lot at the time of his identification. Mitchell could not recall whether any officers accompanied Mrs. Powell when she identified appellant. He denied having asked Mrs. Powell to come to the station to identify appellant and he denied knowing that she would be there. He denied picking her up or asking that she be brought to the station to identify appellant.

He did not know whether any other officers had brought her to the station at that time. Mitchell testified further that appellant was not placed in a cell, photographed or fingerprinted upon his arrival. He stated that during his investigation he noticed in the police report that Mrs. Powell had allegedly told the po ²³² lice that she didn’t see appellant’s face at the time of the crime; but that she had told him that she did see his face and meant only that she didn’t see his face during the time that appellant had her on the ground. The appellant, a seventeen-year-old youth, residing at 911 Strieker Street, testified that Officer Mitchell told him he was a suspect in a rape case and that he voluntarily accompanied the officer to the police station in a police car; that Mitchell called on his car radio stating that he was bringing Edward Watson in on a rape charge and “to pick up the lady” and have her brought in; that upon arriving at the station, he was placed in a cell from five to ten minutes, photographed and fingerprinted; that thereafter, he was taken near a door in the Sergeant’s room where Mrs. Powell came in and identified him.

At the conclusion of this evidence, the trial judge denied appellant’s pretrial motion to preclude the victim of the crime from making an in-court identification at the trial. The court stated that the victim impressed it as being an intelligent, observant, and mature witness; that she knew the appellant prior to the crime from “the neighborhood” and had seen him on many occasions; that she conducted her own investigation and thereby ascertained his full name and the street of his residence; that appellant was not placed in a lineup at the Western Police Station in the usual sense of that term; and that her identification of appellant at that time did not originate from that confrontation. The trial judge stated that Officer Mitchell’s testimony and that of Mrs. Powell showed that the latter had not gone to the police station to identify appellant in a lineup, that the police did not point appellant out to her, and that the confrontation at that time was “by accident and by chance.” The court concluded: “I will permit' Miss Powell to give her in-court identification in this proceeding.” In brief then, the appellant’s motion was to preclude an in-court identification by the victim and the court’s ruling permitted the State to make such an in-court identification before the jury. Neither appellant’s pretrial mo ²³³ tion nor the court’s ruling thereon, involved the question of suppression of a prospective extrajudicial identification by either the victim or by the police.

At the trial before the jury Mrs. Powell testified substantially as she did at the hearing on the pretrial motion and identified appellant as her assailant. No reference was made on the State’s direct examination of Mrs. Powell of her extrajudicial identification of the appellant at the police station, nor did appellant on cross-examination make any reference to it. But the State recalled Mrs. Powell to testify and asked her whether she had identified appellant at the Western Police Station on January 11, 1968, and she stated, over appellant’s objection, that she had. While she testified that the police did not point appellant out to her at that time, she stated on cross-examination that at 9:00 or 9:30 p.m. on January 11, she was told to come to the police station “to identify a person”; that she came to the station and sat there “until I was told to walk out” by Officer Mitchell, through the Desk Sergeant’s room to the parking lot; that Mitchell accompanied her and said that she was to identify “a man that was standing there”; and that she saw appellant standing alone and identified him.

Officer Mitchell testified before the jury substantially as he did at the hearing on the pretrial motion. He again denied that he had asked Mrs. Powell to come to the station or that he had asked other police officers to tell her to do so. Mitchell testified to Mrs. Powell’s extrajudicial identification of appellant at the police station. Appellant made no objection to this testimony.

Officer Charles Mahoney testified for the defense that he had investigated the alleged rape immediately after it had been reported by Mrs. Powell, and that she told him at that time that she did not see the face of her assailant because he held a revolver to her head during the crime. Mahoney testified that he was with Mrs. Powell some two hours and had she told him that she knew her assailant, he would have included it in his report. Appellant also testified at the trial substantially as he ²³⁴ did at the pretrial hearing. There was also testimony from a number of defense witnesses which, if believed, tended to establish appellant’s innocence of the crime.

In Smith and Samuels v. State, 6 Md. App. 59 , we held that the rules of Wade and Gilbert apply to pre-indictment, as well as to post-indictment lineups, and to other police-initiated pretrial confrontations that are not subject to fair and meaningful review later at the trial. We think it too clear to require discussion that, absent exigent circumstances, if the police