Williams v. State

⁶⁰⁹ Moylan, J., delivered the opinion of the Court. The appellant, John Lorenzo Williams, was convicted in the Circuit Court for Montgomery County by a jury, presided over by Judge Plummer M. Shearin, of rape and kidnapping. He was sentenced to a ten-year term on each conviction, the sentences to run concurrently. The sole question he raises on appeal is whether the in-court identification made of him by the victim was the tainted product of an earlier impermissibly suggestive pretrial confrontation.

On December 4, 1969, Sandra Bennett, a twenty-two-year-old woman, was leaving the J. C. Penney Company, located in the Silver Spring Shopping Center on Colesville Road in Montgomery County. As she approached her car on the parking lot behind the Park and Planning Commission, she was grabbed from behind and knocked to the ground by two men. One rifled her pocketbook and the other looked for her car keys which had fallen to the ground. Recovering the keys, one of the assailants opened the car and ordered her into the back seat.

The car was then driven to a spot behind the Parking and Planning Commission. The assailants announced that they had both a gun and a knife and ordered Miss Bennett to disrobe. She was then raped by one of the men. The rapist and the driver then exchanged places.

The kidnappers proceeded to drive Miss Bennett via Georgia Avenue into the District of Columbia. They then proceeded through various back streets, unknown to the victim, and stopped in an alley. The man in the back seat then proceeded to rape Miss Bennett. Shortly thereafter, the driver left the vehicle and the man in the back seat raped her a second time.

The driver subsequently returned to the vehicle with a third person who also raped Miss Bennett. All three assailants then departed on foot and Miss Bennett drove home. The police were called and she was taken to i/he Holy Cross Hospital where she was examined. The appellant in this case, who was arrested on December 17, 1969, thirteen days after the rape and kidnapping, ⁶¹⁰ took the stand in his own defense.

He admitted having been on the parking lots in the vicinity of the Silver Spring Shopping Center on December 4 but insisted that he had left the area to return to Washington at some time between 7 and 7:3Q p.m. He denied any participation in the assault on Miss Bennett. He did testify, however, that on the next day he left for North Carolina, ostensibly to visit his grandmother. Despite the fact that the appellant lived at 1617 S Street, N.W., in the District of Columbia, he was arrested at 6:30 p.m. on December 17 on the parking lot of the Park and Planning Commission near the Silver Spring Shopping Center.

The police had staked the parking lot out and arrested the appellant and a companion because of their suspicious behavior. No question about the propriety of the arrest is before us. Several items of the appellant’s clothing were submitted to the F.B.I. Laboratory for analysis. An expert on the identification of human hair testified that he found on the shirt of the appellant several light brown head hairs of Caucasian origin which had been forcibly removed from the scalp.

He also found on the trousers of the appellant a limb hair (from either an arm or leg) of Caucasian origin. This hair also had been forcibly removed from the skin. The expert also found on the blouse of the victim a dark brown head hair fragment of Negroid origin. Sgt.

Roger Milstead of the Montgomery County Police testified for the State as a fingerprint expert. He found that a latent fingerprint lifted from the outside of the window of Miss Bennett’s automobile was the print of the appellant. Whereas only twelve points of identification are necessary to assert identity positively between a known print and a latent print, there were actually twenty-three points of identity between the print found 'on the glass of the automobile and the print taken from the index finger of the left hand of the appellant. When the appellant took the stand in his own defense, he testified that he and his companion had been on the parking ⁶¹¹ lot in question on the evening of December 4 for the purpose of stealing from automobiles and that as a result of that activity, he had occasion to touch many automobiles on the outside.

Sgt. Milstead, however, testified that from the position of the print on the very top of the window glass, it was highly improbable that the print could have been placed there when the door was closed. Miss Bennett had testified that her automobile was locked when she left it on the parking lot. There was also lifted from the isinglass window of Miss Bennett’s wallet a latent print which had four points of identity with the known print of the appellant.

While on the basis of four points of identity, Sgt. Milstead could not assert positively that the print found on the victim’s wallet was that of the appellant, he nevertheless asserted that there was a great probability that it was the appellant’s print. After being pressed on the degree of probability during cross-examination, Sgt. Milstead asserted that on the basis of four points of identity the odds against the latent print’s having been anyone but the appellant’s would be four million to one.

At the trial, Miss Bennett positively identified the appellant as her assailant. The State did not adduce from her any testimony as to pretrial confrontations. The appellant, however, had made a pretrial motion to suppress any in-court identification. A pretrial hearing was held before Judge Kathryn J. Shook.

Judge Shook ruled against the appellant and refused to suppress evidence of identification. The appellant renewed his motion to suppress the identification at the trial on the merits. Both the appellant and the State agreed, in a conference with Judge Shearin out of the presence of the jury, that they had no new evidence to offer on the question other than that earlier adduced before Judge Shook. Judge Shearin reviewed the transcript of the pretrial suppression hearing and permitted counsel to reargue the question on the law.

He then ruled as Judge Shook had earlier ruled and refused to suppress evidence of identification. The appellant’s thesis is that the in-court identification ⁶¹² of April 20, 1970, flowed from an earlier identification made at a preliminary hearing held on January 7, 1970, and that the January 7 identification was, in turn, the result of an impermissibly suggestive photographic viewing