Presley v. State

• Decision Date: 22 March 1961
• Docket Number: No. 154,154
• Citation: 224 Md. 550,168 A.2d 510
• Parties: James L. PRESLEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 550

224 Md. 550

168 A.2d 510

James L. PRESLEY v. STATE of Maryland.

No. 154.

Court of Appeals of Maryland.

March 22, 1961.

Hugh J. Monaghan, II, Baltimore (Paul J. Reed, Jr., and George B. Cavanagh, Baltimore, on the brief), for appellant.

Stedman Prescott, Jr., Deputy Atty. Gen., and John W. Sause, Jr., Asst. State's Atty., Baltimore (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty., and Julius A. Romano, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.

MARBURY, Judge.

Appellant appeals from a judgment entered on a jury's verdict of guilty on the first count and sentence of death upon an indictment returned by the grand jury of Baltimore City containing five counts: rape, assault with intent to rape, carnal knowledge of a girl under fourteen years of age, assault with intent to carnally know a girl under the age of fourteen, and simple assault, all upon an eleven year old girl, on January 3, 1960.

At the beginning of the trial on April 11, 1960, Judge Cullen, when the talesmen were brought into the courtroom, advised them that this was 'an important and serious case' and that he had determined to sequester the jury. He then on the voir dire inquired whether any of the jury had such conscientious scruples or opinions as would prevent or preclude them from rendering a verdict of guilty, where the penalty prescribed by law could be death, and whether any of them had formed or expressed any opinion in the case against the appellant by reason of any statement, reports from any news source or persons which would prevent them from rendering a fair and impartial verdict based solely on the law and evidence in the case. He further asked them, at the request of defense counsel, whether any of them had any bias or prejudice against anyone because of race or religion, and whether any of them had ever been a complaining witness for the prosecution in any criminal case. No other questions were requested or suggested to the Court by counsel. After the response to these questions the jury was selected and impaneled, whereupon the Court took a recess for an hour and a half for the purpose of lunch and to allow time for the jurors to arrange to have clothing and other effects picked up at their homes by court officials, and to return at 1:45 p. m.

Upon reconvening defense counsel requested and was granted a conference at the Bench. He requested a mistrial on the basis that while the jury was at lunch, an article appeared on page 1 of the Local Section of the Baltimore News-Post newspaper as follows:

'Attack Trial to Open Today

'Trial of a 42-year-old man charged with raping an 11-year-old girl in the Parkwood Cemetery Jan. 3 was scheduled to begin in Criminal Court today.

'James L. Presley, of the 400 block Warren Ave., is charged with picking up the girl in his car while she was on her way to church in Parkville after threatening her with a knife.

'Police said he drove her to the cemetery, located just within the city limits, and attacked her.

'They said he then drove her back to the county and let her out of the car.

'Assistant State's Atty. John W. Sause, Jr. said he will ask the death penalty for Presley.'

The Court stated that the defense agreed with the Court and with the State to allow the jury to go to lunch and that he had 'the very specific agreement to that effect.' He thereupon overruled the motion for mistrial and this gives rise to the first question urged upon this Court as ground for reversal. The general rule with respect to alleged prejudice caused by newspaper publicity has been clearly established in this State by the decisions of this Court, which is that the burden is upon the party alleging prejudice to show: (1) that the newspaper article is prejudicial, (2) that a juror has read the prejudicial newspaper article, and (3) that the jurors' decision at the trial was influenced by that newspaper article. Gray v. State, Md., 167 A.2d 865; Piracci v. State, 207 Md. 499, 115 A.2d 262; Grammer v. State, 203 Md. 200, 100 A.2d 257; Wanzer v. State, 202 Md. 601, 97 A.2d 914; Larch v. State, 201 Md. 52, 92 A.2d 463; Baltimore Radio Show v. State, 193 Md. 300, 67 A.2d 497; Newton v. State, 147 Md. 71, 127 A. 123.

We find nothing in the article inflammatory or claculated to arouse public sentiment against the defendant, nor do we find anything in it which would likely have influenced a juror's decision one way or the other. The article simply attempted to state what the charges were against the appellant. United States v. Reid, 12 How. 361, 13 L.Ed. 1023.

In support of this contention the appellant seems to rely exclusively upon Basiliko v. State, 212 Md. 248, 129 A.2d 375. This argument ignores the obvious fact that in Basiliko the Court found the articles were prejudicial per se. The facts in that case are so different from those involved in this that we do not consider Basiliko in point.

The record fails to show that any juror read the newspaper article. When the court reconvened, and before any evidence was given, defense counsel made no request to have the court further examine the jurors on their voir dire as to whether or not any juror had in fact read the article. Having failed to avail himself of the opportunity to have the jurors further interrogated, the appellant cannot now complain that some juror may have read it and have been influenced thereby. We find no error in the Court's overruling the motion for mistrial.

The appellant's next question is whether the circumstances surrounding the police line-up were so unfair and unreliable as to preclude the admissibility of the identification resulting therefrom. A careful reading of the record and the briefs fails to disclose how this question has been preserved for review by this court. However, the general rule as to the admission of an extrajudicial identification in a trial where the identity of the accused is an issue, is that such identification is admissible when it appears that the circumstances surrounding the same were such as to preclude any reasonable suspicion of unfairness or unreliability. Basoff v. State, 208 Md. 643, 119 A.2d 917; Judy v. State, 218 Md. 168, 146 A.2d 29; Proctor v. State, 223 Md. 394, 164 A.2d 708. See annotations in 71 A.L.R.2d 456; 1 Wharton, Criminal Evidence (12th ed. 1955) Secs. 181, 182; 23 C.J.S. Criminal Law § 920, p. 192.

His counsel argued that because the child victim informed police that her attacker was wearing a brown leather jacket and a red hunting cap at the time of the commission of the crime it was prejudicial to him to place him in the line-up at the police station to be viewed by the victim with five other men, one of whom was wearing a gray hat, and two others besides Presley were wearing brown jackets, when Presley was attired in the same clothes he was wearing when arrested, which included a red hunting cap and brown jacket. Lt. Kemple in describing the line-up testified that the six participants in it were dressed 'as similar as we could get them at the time.' Of course it would have been obviously unfair and prejudicial to the suspect to have placed him in a group of pygmies, for example. On the other hand, the police were not required to stage a masquerade by dressing all of the men in the line-up in similar attire.

In discussing the technique of identification of accused persons Professor Wigmore, in 3 Wigmore on Evidence (3rd ed. (1940) Sec. 786a. (B) 2, comments:

'2. The process also calls for precaution, in taking measures beforehand objectively to reduce the chances of testimonial error:

'(a) At the time of original observation, the investigator (police) should obtain from the observer a note of any marks of the personality observed, so that there will be less need to depend later on the observer's memory.

'(b) At the time of presenting for recognition, whether upon arrest or at trial in the courtroom, measures should be taken to increase the stimulus of association and to decrease the risk of false suggestion. (a) The person to be identified should be clothed and placed (so far as feasible) in the same conditions as when originally observed. (b) The person to be identified should be presented in company with a dozen others of not too dissimilar personalities.'

In the instant case, we find no indication that would call for a finding that the identification was made under conditions of unfairness or unreliability. The record discloses that the victim viewed at least forty-eight slides before identifying the appellant to the police. The fact that the appellant was the only man in the line-up wearing a red cap did not in itself invalidate the line-up. Nor do we consider because he was one of six rather than twelve, as suggested by Professor Wigmore above, that this factor violated the rule of fairness. There was searching cross-examination by appellant's counsel directed to showing that the identification was made because the accused wore the same attire in the line-up as he had during the attack. Suffice it to say that we find no indication that the State took any unfair or prejudicial advantage of the accused in arranging for the line-up and that the careful and definite identification of the accused by the prosecutrix was free from any previous coaching or suggestion as to his identity. We think the evidence concerning the appellant's identification by the victim in the line-up was for the proper consideration by the jury and involved no reversible error in this case.

The third question raised by the appellant is: 'Was not the evidence of penetration insufficient to justify a conviction of rape?' Without going into sordid details as to the evidence disclosed by the record, there was ample evidence of this element of the crime disclosed by the testimony of the victim, as well as that of Dr. Mansfield, and the appellant's confession, which will be hereafter discussed. We...