Bedford v. State, 75

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; SMITH; ELDRIDGE
Citation293 Md. 172,443 A.2d 78
Parties, 29 A.L.R.4th 91 Robert BEDFORD, Jr. v. STATE of Maryland.
Docket NumberNo. 75,75
Decision Date24 March 1982

Page 172

293 Md. 172
443 A.2d 78, 29 A.L.R.4th 91
Robert BEDFORD, Jr.
STATE of Maryland.
No. 75.
Court of Appeals of Maryland.
March 24, 1982.

Page 173

John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.


SMITH, Judge.

At issue in this case is whether the extrajudicial identification of an individual's photograph by two victims as that of the culprit who robbed them will support a rational inference of the criminal agency of the accused, notwithstanding the fact that neither of them was able to identify him in court. We hold that it does. Thus, we shall affirm the judgment of the Court of Special Appeals contained in an unreported opinion. We shall decline the request of the petitioner, Robert Bedford, Jr., that we adopt the standard laid down in People v. Gould, 54 Cal.2d 621, 354 P.2d 865, 7 Cal.Rptr. 273 (1960), heretofore rejected by the Court of Special Appeals in Cousins v. State, 18 Md.App. 552, 556-59, 308 A.2d 692, cert. denied, 270 Md. 738 (1973).

The facts here may be briefly stated. Petitioner was convicted by a Baltimore County jury on a number of charges, including two of robbery with a dangerous and deadly weapon and one of daytime housebreaking. The Court of Special Appeals affirmed. We granted the writ of certiorari in order that we might review the identification problem.

[443 A.2d 79] The incident in question took place shortly after noon on September 24, 1979. The victims, George and Grace Heinmuller, aged eighty and seventy-seven, respectively, returned home from shopping. They were confronted by an individual in their dining room "with his right arm raised and a hatchet in his hand." He struck, robbed, bound and gagged them, leaving them in a bedroom in their home while he ransacked the house. The culprit appears to have been in

Page 174

the home an hour or longer and within the view of the victims for about half an hour. He wiped off fingerprints prior to his departure from the house.

The victims provided a description of the accused. That evening they were met by detectives of the Baltimore County Police Department at the home of a neighbor who had insisted "that the(ir) house was in no condition to stay in, and (they) were in no condition to stay there with the door all torn off and that sort of thing ...." They assisted a detective in preparing a composite picture of the assailant. Subsequent to this, each victim, independently of the other, viewed six photographs. Each, independently of the other and out of the presence of the other, selected a photograph of Bedford and indicated that he was the individual who had robbed them.

Since the victims were unable to identify the accused at a hearing on a motion to suppress identification evidence, they were not asked to attempt an identification in the presence of the jury at trial in February 1980. However, evidence as to their pretrial identification of the accused was presented.

As is so often the case, Bedford presented an alibi defense. It is claimed that under the decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the conviction here cannot stand. Reliance is particularly placed upon People v. Gould, supra, where the California Supreme Court held that an extrajudicial identification that cannot be confirmed by identification at trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.

First, we point out that Jackson and its holding that an accused "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt," 443 U.S. at 324, 99 S.Ct. at 2791-2792, in no way changed the standard in effect in Maryland. In Williams and McClelland v. State, 5 Md.App. 450, 247 A.2d 731 (1968), cert. denied, 252 Md. 731, 734 (1969), Judge Orth carefully reviewed for the Court

Page 175

of Special Appeals a number of the prior cases of this Court such as Gibson v. State, 238 Md. 414, 209 A.2d 242 (1965); Shelton v. State, 198 Md. 405, 84 A.2d 76 (1951); Edwards v. State, 198 Md. 132, 81 A.2d 631, 83 A.2d 578 (1951); and Lambert v. State, 196 Md. 57, 75 A.2d 327 (1950). All of those cases arose subsequent to the constitutional amendment now embodied in Maryland Declaration of Rights, Art. 23 which provides that a trial court "may pass upon the sufficiency of the evidence to sustain a conviction," and, hence, that this was open to appellate review. Judge Orth then said for the Court of Special Appeals:

"Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury. Whether the test applicable to jury cases is stated in the affirmative-the judgment will be affirmed if there is any relevant evidence before the jury to sustain a conviction-or in the negative-to overturn a judgment there must be no legally sufficient evidence on which the defendant could be found guilty beyond a reasonable doubt-it is inherent that to be sufficient in law to justify the conviction within the intent of (Code (1957, 1967 Repl.Vol., 1967 Cum.Supp.) ) Art. 27, § 593 the admissible evidence adduced must show directly or support a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged." 5 Md.App. at 458-59, 247 A.2d 731 (emphasis added).

[443 A.2d 80] Applying this standard under Jackson, 443 U.S. 307, 99 S.Ct. 2781, Chief Judge Murphy said for the Court in State v. Rusk, 289 Md. 230, 240, 424 A.2d 720 (1981), "the applicable standard is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' 443 U.S. at 319 (99 S.Ct. at 2789) (emphasis in original)."

Page 176

Accord, Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980). 1

As pointed out by Justice Hennessey for the Supreme Judicial Court of Massachusetts in Commonwealth v. Swenson, 368 Mass. 268, 272, 331 N.E.2d 893 (1975), an extrajudicial identification made by a witness may be offered in evidence for three possible purposes: (1) for corroboration; (2) for impeachment; or (3) as substantive evidence of an identification, having probative value. In Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965), this Court was presented with the issue of whether testimony concerning an extrajudicial identification might be received as substantive evidence. There identification was made at a lineup. Judge Horney said for the Court:

"We hold therefore that where, as here, the identifying victims or eyewitnesses were present and subject to cross-examination, the testimony of the

Page 177

police officer as to the extrajudicial identifications was admissible.

"Even where witnesses do not make a courtroom identification of the indictees, an extrajudicial identification is admissible as evidence over an objection that it is not the best evidence. State v. Simmons, (63 Wash.2d 17), 385 P.2d 389 (1963). We note that the Simmons case cited Judy v. State, (218 Md. 168, 146 A.2d 29 (1958) ), for the proposition that the first identification is usually the best identification. For other cases that have admitted evidence of extrajudicial identifications even where no positive courtroom identification was made, see People v. Gould, (54 Cal.2d 621, 7 Cal.Rptr. 273), 354 P.2d 865 (1960) and State v. Wilson, (38 Wash.2d 593), 231 P.2d 288 (1951), cert. den. 342 U.S. 855 (72 S.Ct. 81, 96 L.Ed. 644) (1951) and 343 U.S. 950 (72 S.Ct. 1044, 96 L.Ed. 1352) (1952)." 237 Md. at 291, 206 A.2d 138.

Whether one speaks in terms of a lineup or a photographic identification, the principle is the same.

The rationale for admitting evidence of an extrajudicial identification as substantive evidence of identity was articulated by Justice Traynor for the Supreme Court of California in Gould, the case upon which the [443 A.2d 81] petitioner places major reliance. Gould's contention there was that the victim "did not identify him at the trial and that evidence of an extrajudicial identification is admissible only to corroborate an identification made at the trial by the same witness." There was evidence that the complaining witness was shown a number of pictures a short time after the incident and that she selected a photograph of Gould as being that of one of the culprits involved. Justice Traynor said for the Supreme Court of California in rejecting Gould's contention:

"Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560 (191 P.2d 1) ), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements

Page 178

unless it is first impeached (People v. Hardenbrook, 48 Cal.2d 345, 351 (309 P.2d 424); People v. Kynette, 15 Cal.2d 731, 753-754 (104 P.2d 794) ), evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. (People v. Slobodion, 31 Cal.2d 555, 559-560 (191 P.2d 1); United States v. Forzano, (2 Cir.), 190 F.2d 687, 689; see People v. Hood, 140 Cal.App.2d 585, 588 (295...

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