Witcher v. State

Thompson, J., delivered the opinion of the Court. Franklin Eugene Witcher, the appellant, was convicted of murder in the first degree and of two charges of ⁴²⁸ armed robbery, by a jury in the Criminal Court of Baltimore, Judge James W. Murphy presiding. A sentence of life imprisonment was imposed for the murder conviction, and two twenty year consecutive terms, concurrent to each other, were imposed for the armed robbery convictions. I Witcher’s only significant contention on appeal is that he was denied due process of law by reason of impermissibly suggestive in-court identifications.

Prior to trial Witcher moved that the anticipated in-court identifications of the eyewitnesses be suppressed; at the hearing on the motion the morning of the trial the evidence offered in support thereof consisted of counsel’s pointing out that Witcher was the only black male in the courtroom and Witcher’s testimony that none of the eyewitnesses to the crime had confronted him at his preliminary hearing and that no lineup was ever held. The trial court pointed out that he had granted Witcher’s motion to exclude the eyewitnesses from the courtroom prior to his being brought in; and that while he would permit the accused to sit in the public area of the courtroom, he would not assume any responsibility for the procurement of other young black males to be present. The judge ruled that Witcher had failed to make a showing sufficient to suppress the in-court identification but he permitted counsel an opportunity to go through the courthouse to see if he could procure other negro males to sit in the audience. When the case was called for trial, counsel stated he had been unable to get volunteers and asked the court to intervene.

The court denied his request. At the trial three eyewitnesses and an accomplice identified the accused. Counsel objected when each of the eyewitnesses was called upon to point out the criminal. At the time of each objection, the trial court had no more information on the issue of pre-trial identifica ⁴²⁹ tion procedures than he had had at the pre-trial hearing on the motion to suppress.

It developed on the cross-examination of the witnesses that one of them had failed to pick Witcher’s photograph from among a group of five and that from a lineup in which appellant did not participate, had picked another person as one who resembled the criminal agent; a second witness identified no one from a group of photographs shown him; and a third witness had identified from the group of five the photograph of Witcher as “looking like” the criminal agent. There was no objection to the accomplice’s testimony as to identification. Witcher filed a motion for a new trial and alleged that he had been denied due process of law by reason of the suggestive in-court identifications. He argued in support of his motion that two of the witnesses had failed to select his photograph from several shown them.

The trial court ruled that nothing was presented which would have required a suppression of the in-court identifications. We affirm the judgment for the reason that under the totality of the circumstances, the identification was reliable even though the in-court confrontation procedure was suggestive. Neil v. Biggers, 93 S. Ct. 375, 383 , 409 U. S. 188 , 34 L.Ed.2d 401 (1972). In the early afternoon of September 30, 1971, Lewis Gilbert Rubin, part owner of the Blue Musical Bar, a tavern on Saratoga Street in Baltimore, was seated behind the bar when two young men entered the tavern armed with pistols.

Shortly after their entrance, one of the men shot and fatally wounded Mr. Rubin. One of the assailants forced the barmaid, Shirley Townes, to allow him access to the currency in a register. Besides Mrs. Townes, two other witnesses to the crimes, Lorraine Mealey and Howard Medley, testified at the trial. Shirley Townes testified she heard a noise and “when I looked up I saw this fire from the gun and Lewis grabbed his chest.

And he looked at me and then he ⁴³⁰ toppled over.” The decedent’s assailant jumped over the bar and announced the holdup. Asked whether she saw this person in the courtroom, Mrs. Townes answered, over objection, “Yes, I do I think. . . . Very close,” indicating the appellant, Witcher. When asked what clothes he wore, she stated that she was primarily looking at the gun but that he was wearing a hat of the same type as State’s Exhibit No. 2, mentioned hereinafter, that he had on blue dungarees and a striped shirt with dark blue stripes and white background.

She could not observe his hair because the hat was pulled over his ears. On cross-examination she testified she had been shown a series of five or six photographs which included that of the defendant but had been unable to make an identification. She had viewed a lineup which did not include the defendant but pointed out another man as “very close as far as features and resemblance are concerned.” She testified that the bar was very well lit when the incident occurred and that she had seen the accused neither before nor since the crime. On re-direct examination, she stated that her attention was drawn to the accused when she entered the courtroom “because instantly when I looked at him, I remembered.” Howard Medley testified he was sitting in the bar reading a newspaper when someone came in and shot the decedent.

When asked if he saw the person in court who did the shooting, he replied, “This fellow, [indicating Witcher] here looks very close to him.” He stated that Witcher was in the bar for less than five minutes and that he was wearing a blue and white striped shirt with dark trousers, either khakis or overalls, that he was wearing a hat similar to State’s Exhibit No. 2, either dark blue or black. He could not see the assailant’s hair as he was wearing a hat “similar to a sailor’s cap with the rim turned down.” He said he never viewed a lineup but that he had looked at some pictures and that he told the police he thought the robber was between 17 and 20 years of age. Medley was unable to pick out the ⁴³¹ accused from the photographs which had been shown to him about a week after the crime. When shown a picture of the defendant, Defendant’s Exhibit No. 2, he stated that he had not seen that picture before, “I don’t think” but that he saw the resemblance now to the accused.

Asked why he was sure his in-court identification was accurate, Medley said, “Well, you see a man being killed in front of you and this sort of makes an impression in your mind and if you see this person again, more than likely you will remember this person.” Lorraine Mealey testified that while a customer in the Blue Musical Bar on the afternoon in question, “Two men came in and shot Mr. Lewis Rubin.” When asked whether she saw either of the boys in the courtroom she replied that Witcher “looks like him.” She described the assailant as wearing a blue and white striped shirt and dark blue dungarees and a cap, “something like the one I am looking at now.” (State’s Exhibit No. 2). The robber was in her sight for about 15 minutes, in an area which was well lighted. On cross-examination she stated one item of the description she had given to the police officers was that the robber was about 22 or 23 years old. At trial she estimated Witcher’s present age at 22.

Shortly after the crimes had been committed the police had shown her several photographs and that she had picked out Witcher’s as looking “like the one that did the shooting.” She was never asked to view a lineup and she had not seen the accused from the date of the crime until she observed him when she came into the courtroom. Edward Williams testified that he had known Witcher for three or four years and that he stood outside the Blue Musical Bar while his cousin, Melvin Jordan, and Witcher entered for the purpose of robbing it. He had declined to enter the bar and told his companions that they need not give him any proceeds of the robbery. Williams testified that about 40 seconds after his companions entered the bar, he heard a shot and immedi ⁴³² ately ran from the area.

He later met Witcher and Jordan and stated that Witcher “said when he was sticking the Blue Bar up, he said he thought the man was going for a pistol, he thought he shot him in the shoulder.” Willliams accepted $15 of the total proceeds of the robbery which amounted to $150 or $160. The remainder was divided between Witcher and Jordan. When asked to describe the clothes Witcher was wearing on the day of the robbery, the following occurred: “A. I think he had on a pair of blue pants and a brown and white shirt. Q. Now, why do you remember that he had blue pants on and a brown and white shirt?

A. Because they had a pair of blue wranglers on. Q. What is that, like a blue jean? A. Yes. Q. Blue wranglers and a brown and white shirt ?

A. Yes, flowered shirt. Q. Flowered shirt? A. Yes, I think it was flower. * * ❖ Q. Are you certain of that? A. It was a blue pair of pants.

I know one of them had on a pair of blue ones on, and one had on a pair of black pants. Both were wranglers, and I ain’t too sure which one had which.” Detective William Jordan testified for the defense, stating that he had shown five photographs to Shirley Townes and that she did not make an identification although one of the photographs was of Franklin Eugene Witcher. Lorraine Mealey was shown the same series and picked out Witcher’s photograph. The series of photographs was introduced into evidence as Defendant’s Exhibit No. 4.

He testified further that Mrs. Townes had ⁴³³ viewed a lineup and tentatively, but not positively, identified one individual. The lineup picture was introduced into evidence as Defendant’s Exhibit No. 5. The detective further testified that Howard Medley was shown photographs but not the same series shown Townes and Mealey. The witness could not at trial identify the photographs as those exhibited to Medley because they might have been mixed up after he left the homicide division.

He testified that when he arrested Witcher in his bedroom, the hat previously introduced into evidence as State’s Exhibit No. 2 was found on the headboard of the bed. A photograph of Witcher taken at the Baltimore City Jail two weeks after the crime was introduced into evidence as Defendant’s Exhibit No. 6. Appellant’s mother testified that she and appellant took her infant son to a clinic at University Hospital on the day of the crime. She testified that the three of them arrived at the hospital at 8:45 a.m. and did not return home until 12:30 or 1:00 p.m.

The University Hospital record was introduced showing that appellant’s infant brother was treated on September 30, 1971. It should be noted that although the various eyewitnesses varied somewhat as to the time of the crime, the medical examiner pronounced Lewis Rubin dead at 1:25 p.m., September 30,1971. The defendant testified on his own behalf that he and his mother took his infant brother to the University of Maryland Hospital on September 30, 1971. He admitted knowing Melvin Jordan all of his life and that he had known the witness, Williams, for about a month prior to the crime.

He testified that Williams and he were not on good terms and he denied being in the company of Jordan or Williams on the day of the crime. He disavowed any knowledge of the crimes. The State argues that appellant was afforded due process of law. We agree with its conclusion but for reasons different than those advanced in its brief.

As noted above, the state was aware that at least one and