Andrews v. State

• Decision Date: 28 October 1981
• Docket Number: No. 139,139
• Citation: 291 Md. 622,436 A.2d 1315
• Parties: , 24 A.L.R.4th 571 Willie ANDREWS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 622

291 Md. 622

436 A.2d 1315, 24 A.L.R.4th 571

Willie ANDREWS v. STATE of Maryland.

No. 139.

Court of Appeals of Maryland.

Oct. 28, 1981.

Michael R. Malloy, Asst. Public Defender, Baltimore

(Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Ann E. Singleton, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We shall here reject the contention of petitioner Willie Andrews that his rights under U.S.Const.Amend. V and Maryland Declaration of Rights, Art. 22 were infringed when a trial judge ordered him "to refrain from shaving his head and facial hair until the conclusion of (his) trial" on then pending criminal charges.

Andrews ultimately was convicted by a Montgomery County jury of assault with intent to murder, use of a handgun in the commission of a felony (two counts), and armed robbery (six counts). The twenty year sentences imposed for each of the armed robbery charges run concurrently with each other, but the sum total of the consecutive sentences imposed is eighty years.

The incident prompting the charges here before the Court took place early on the morning of December 22, 1978, at the Albee Shoe Store in Rockville. Andrews was arrested on January 6, 1979.

The State filed a motion on March 2 to compel Andrews to refrain from shaving his face and head. The motion was accompanied by a memorandum giving the details of the incident and other relevant information, including that the robbery occurred about 9:00 a. m. on December 22; that the suspect in question ran to a certain address where investigation indicated he had spent the preceding night; that the person's name was Willie Andrews; that upon entering the apartment Andrews informed those present that he had just robbed a shoe store and shot a man; that police searches of apartments in that area "resulted in the seizure of several items of evidence, including a razor and a sponge which had hair clippings on them," and that these items of evidence and hair clippings had been preserved and remained in the custody of the Montgomery County Police. The State "aver(red) that the only fair identification that c(ould) be made (was) one based upon the defendant's appearance at the time of the commission of the crimes and not one based upon his subsequent drastically altered appearance."

The State's motion was considered by the trial judge (Fairbanks, J.) at the time of Andrews' arraignment. Evidence adduced by the State in support of its motion consisted of testimony by Detective Orbin of the Montgomery County Police Department and Betty Brown, one of the occupants of the apartment where Andrews resided. Orbin stated that as a result of the interview of all of the witnesses at the store, seven in number, the suspect for whom they were looking was described as a black male in his late 20's to 30, approximately five feet eight inches to six feet tall, medium build, short hair, with head hair and a thin beard and mustache. He said none of the seven people indicated that the man in question was wearing any sort of disguise on his face. When the defendant was arrested he was almost completely bald but he did have what was described as "a full-thin beard and a mustache." Orbin asserted that on the day the crime was committed a search was made of the apartment where Andrews lived. A pair of scissors, a sponge, a rag, and a bottle of Nair were found.

Brown said she had known Andrews for about one year prior to the incident in question. He had been occupying the same apartment with her and others for about a month and a half. He was in the apartment when she went to sleep about 5:00 o'clock in the morning. She described him as "sweaty and ... out of breath" when he came into the apartment sometime after she awoke at about 9:00 a. m. According to her, he said he had shot a man in the head and that he had robbed a shoe store in Rockville. He had with him bags from Albee's Shoe Store which were described as made of thick plastic. She said that he indicated that there were about eight people in the store, including one lady who was pregnant. According to Brown, at the time these statements were being made, Andrews had head hair, sideburns, and a beard. He had had such for the whole year she had known him. Prior to December 22 she had never seen him without a beard or a mustache. Brown claimed that Andrews asked her to help him shave his hair, saying "the policeman was out there." In response to a question as to whether or not she observed any police, Mrs. Brown said she looked out a window and saw "(a)n army of polices." She thought there were about ten police cars. She testified, "I used some Nair and a disposable razor and helped him shave off his hair on his face and his head." This was done in the bathroom of her apartment. She also shaved his head, "but not completely" because "(t)here wasn't enough Nair and the razor wasn't sharp enough." In response to a question as to his appearance in the courtroom at the time of the hearing on the motion as compared with the morning of the incident in question, she said, "His face hair is shorter, hair off his face." On cross-examination, Mrs. Brown indicated that the police requested and were granted permission to search the apartment. She told them where the Nair and razor blade were. She also stated that Andrews left the apartment about 6:00 or 6:30 a. m., without explaining how she knew this in light of the fact that she had previously said he was there when she went to sleep about 5:00 o'clock.

The trial judge heard the matter on Friday, March 9, 1979. He deferred a decision until the following Monday. At that time he stated:

The State argues that the court is fully entitled to require the defendant to refrain from altering his appearance. Well, that would require the defendant to refrain from shaving either his head or his facial hair and cites to the court a long line of cases from a good many jurisdictions, including federal jurisdictions and including one case from the Fourth Circuit ... all to the effect that the court has the right to require certain things of the defendant including such matters as where to sit in the courtroom and ranging all the way to that to taking blood from him or certain apertures and openings into his body.

I have read not all of those cases but some of them, and I am persuaded that the State is correct, that there is no constitutional impediment to requiring the defendant to refrain from shaving. Among the reasons why this is appropriate is that the defendant, by attempting to alter his appearance is attempting to defeat legitimate avenues of identification. All of the cases that I have read which discuss this matter are uniform in their condemnation of disguise on the part of an accused, which disguise is used either for purposes of attempted escape or attempted avoidance of identification at a later date.

... (B)ased on what I believe the appropriate law to be this court will pass an order directed to the defendant ordering him to refrain from shaving his head and facial hair until the conclusion of the trial in the above-captioned case.

The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We then granted Andrews' petition for the writ of certiorari to consider his contentions that his constitutional rights have been infringed.

Judge Cole pointed out for the Court in Richardson v. State, 285 Md. 261, 265, 401 A.2d 1021 (1979), that the constitutional safeguards of the Fifth Amendment to the Constitution of the United States relative to compelling a person in a criminal case to be a witness against himself and the privilege against compelled self-incrimination contained in Maryland Declaration of Rights, Art. 22 have "long been recognized as being in pari materia" with each other. Of course, as Judge Digges recently said for the Court in a slightly different context in Attorney General v. Waldron, 289 Md. 683, 714, 426 A.2d 929 (1981), although a clause of the United States Constitution and one in our own Declaration of Rights may be "in pari materia," and thus "decisions applying one provision are persuasive authority in cases involving the other, we reiterate that each provision is independent, and a violation of one is not necessarily a violation of the other." Here, however, we see no reason for a holding under Declaration of Rights, Art. 22, other than as the Supreme Court has construed the Fifth Amendment.

Justice Brennan discussed the Fifth Amendment for the Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), stating:

"History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through "the cruel, simple expedient of compelling it from his own mouth .... In sum, the privilege is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will." Ibid. The leading case in this Court is Holt v. United States, 218 U.S. 245 (31 S.Ct. 2, 54 L.Ed. 1021). There the question was whether evidence was admissible that the accused, prior to trial and over his protest, put on a blouse that fitted him. It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege. Mr. Justice Holmes, speaking for the Court, rejected the argument as "based upon an extravagant extension of the Fifth Amendment," and went on to say: "(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when...