Miller v. State

Citation255 A.2d 459,7 Md.App. 344
Decision Date30 June 1969
Docket NumberNo. 410,410
PartiesRobert MILLER, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Thomas V. Miller, Jr., Clinton, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., and Raymond F. Ciarrocchi, State's Atty., and Asst. State's Atty. for Prince George's County, respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

This case brings into question the admissibility of judicial and extra-judicial identifications of an accused and the procedure to be followed when evidence of such identifications are challenged during trial. We discussed these matters at length in Smith and Samuels v. State, 6 Md.App. 59, 250 A.2d 285. We found that the general rules were that a judicial identification of an accused was admissible; that a witness' testimony as to a prior extra-judicial identification was admissible for the purpose of corroborating the witness and bolstering his credibility; that testimony by a third party as to an extrajudicial identification by an eyewitness was admissible when made under circumstances precluding the suspicion of unfairness or unreliability where the out of court declarant was present at trial and subject to cross-examination; that it was so admissible whether or not the out of court declarant made a positive in-court identification-thus being admissible as substantive evidence; that these rules were affected by the exclusionary rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 only as to personal confrontations between the witness and the accused declared by those cases to be illegal by the absence of counsel; that by Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, a pre-trial confrontation, independent of any right to counsel claim, may be so unnecessarily "suggestive and conducive to irreparable mistaken identification" as to make evidence of an identification thereat inadmissible as a denial of due process of law; that counsel is not required to the present at an identification by photographs; that as to the admissibility of evidence of such identification the rationale of Stovall applies. We noted that the rules of law of this State relating to identification existing prior to Wade and Gilbert are still effective as qualified by the exclusionary rules enunciated in those opinions. 1 6 Md.App. pp. 63-67, 250 A.2d 285. As to procedure when the determination of the admissibility of challenged identification evidence is made during a trial before a jury, evidence on the issue shall be received out of the presence of the jury. The burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. We concluded, 6 Md.App. at 68, 250 A.2d at 291:

'If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. And if such witness made a pretrial identification, his testimony to that effect is so admissible. And, the testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and subject to cross-examination; whether or not he makes an in-court identification. If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this 'by clear and convincing evidence' that the in-court identification is based 'upon observations of the suspect' by the witness other than the confrontation or photographic identifications.' 2

We held that the determination of whether or not the pre-trial confrontation or viewing of photographs was legal was a matter for the court exclusively. But we added, 6 Md.App. pp. 67-70, 250 A.2d p. 292:

'This is not to say that the defendant cannot cross-examine the State's witness making an in-court identification at the trial of the general issue, if he chooses, so as to bring out the circumstances surrounding a pre-trial identification by that witness even though the court had held the procedure by which the pre-trial identification was made to be illegal, nor does it prevent the defendant from introducing evidence on the matter as part of his case. Such evidence so elicited by the defendant is proper as affecting the weight of the identification evidence produced by the State and the credibility of the identifying witness, matters for the trier of fact.'

The instant case was tried before a jury in the Circuit Court for Prince George's County. The appellant was found guilty of obtaining goods from Montgomery Ward and Co. by a false pretense 3 and sentenced to the jurisdiction of the Department of Correction for a period of 5 years, later reduced to 3 years by order of court. There was no pre-trial motion to suppress or exclude identification evidence but at the trial, during the direct examination of Ernest Taylor, a department manager of Montgomery Ward and Co., testifying in behalf of the State objection was made. The transcript of the proceedings reads:

'Q. (by Raymond F. Ciarrocchi, Assistant State's Attorney) Directing your attention back again to December 6th of last year, did you have occasion to see Mr. Robert Miller (the appellant) in the store?

'MR. MILLER: (Thomas V. Miller, Jr., defense counsel) Objection, your Honor.

THE COURT: On what ground? That it is leading?

MR. MILLER: May we approach the bench, your Honor?

THE COURT: Yes.

(Whereupon, counsel approached the bench and the following proceedings were had out of the hearing of the jury:)

Mr. Miller: He said, 'Did you see Robert Miller?' That is the first point. The second point is, there is a possibility here of a tainted pre-trial confrontation. We have no basis, no idea of showing how he knows Mr. Miller. Wade and Gilbert say we are entitled to find out what grounds he has.

The Court: I will sustain the objection. You will have to lay the ground work.

(Whereupon, counsel returned to the trial table and the following proceedings were had in open court:)

By Mr. Ciarrocchi:

Q. Directing your attention back to the 6th of December of 1967, did you have occasion to see this man (indicating) in your store?

MR. MILLER: Objection, your Honor.

THE COURT: I will sustain the objection.

MR. CIARROCCHI: May we approach the bench, your Honor?

THE COURT: Yes.

(Whereupon, counsel approached the bench and the following proceedings were had out of the hearing of the jury:)

The Court: I think you could ask him if he ever saw the defendant before and lead up to the date.

Mr. Ciarrocchi: Very well.

(Whereupon, counsel returned to the trial table and the following proceedings were had in open court:)

By Mr. Ciarrocchi:

Q. Mr. Taylor, have you ever seen this man before (indicating)?

MR. MILLER: Objection, your Honor.

THE COURT: I will overrule the objection.

THE WITNESS: Yes, sir.

By Mr. Ciarrocchi:

Q. When did you see him, sir?

MR. MILLER: Objection, your Honor.

THE COURT: Objection overruled.

THE WITNESS: About the first of December-around the first week sometime in December. He came into the Camera Department in our store and wanted to buy a Polaroid camera.

MR. MILLER: Objection, your Honor, to any further statements. He already answered he question.'

There was no ruling on this last objection. It is clear that objection was timely made to the in-court identification by Taylor and that a primary ground for the objection was 'a possibility here of a tainted pretrial confrontation.' At this point the appellant was entitled to the opportunity, out of the presence of the jury, to show prima facie, that a pre-trial identification procedure was illegal. He could do so by the testimony of such witnesses he desired to call or by cross-examination of the witness through whom the in-court identification was to be offered or by such other relevant and competent evidence available to him. If he was able to do so, the burden would shift to the State to show by clear and convincing evidence that it was legal. We think it was the obligation of the trial court, in the light of the objection and the reason therefor, to provide this opportunity and the failure to provide it was...

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9 cases
  • Johnson v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 17, 1970
    ...evidence and the procedure to be followed upon challenge of it in Smith and Samuels, discussed the subject in Miller v. State, 7 Md.App. 344, 255 A.2d 459, and summarized it in Dorsey v. State, Md.App., 262 A.2d 591, filed Mar. 4, ...
  • Dorsey v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 4, 1970
    ...erred in not following the procedure set out in Smith and Samuels v. State,6 Md.App. 59, 250 A.2d 285 and discussed in Miller v. State, 7 Md.App. 344, 255 A.2d 459. 3 But such procedure is invoked when a judicial identification is challenged on the ground that it may be tainted by an illega......
  • Coleman v. State
    • United States
    • Court of Special Appeals of Maryland
    • October 30, 1969
    ...upon challenge of evidence of identification see Smith and Samuels v. State, 6 Md.App. 59, 67-70, 250 A.2d 285. See also Miller v. State, 7 Md.App. 344, 255 A.2d 459.5 United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.6 The appellant does not claim that the lineup was unfa......
  • Coward v. State
    • United States
    • Court of Special Appeals of Maryland
    • August 11, 1970
    ...the identifying witness, matters for the trier of fact. Smith and Samuels v. State, supra, at 69, 250 A.2d 285. See also Miller v. State, 7 Md.App. 344, 255 A.2d 459. Thus the testimony elicited from Miss Moss by the defense affected the weight of the in-court identification rather than the......
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