Billinger v. State, 524

• Decision Date: 02 July 1970
• Docket Number: No. 524,524
• Parties: Willie James BILLINGER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 628

9 Md.App. 628

267 A.2d 275

Willie James BILLINGER v. STATE of Maryland.

No. 524.

Court of Special Appeals of Maryland.

July 2, 1970.

Certiorari Denied Oct. 13, 1970.

Joseph E. Emerson, Baltimore, for appellant.

H. Edgar Lentz, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., Hilary D. Caplan, and Sandra A. O'Connor, Asst. State's Attys., Baltimore City, on brief, for appellee.

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

ORTH, Judge.

In our society no person has a constitutional right to be an anonym. ¹ So when he is suspected of or accused of having committed a crime he may be displayed by the State to prospective identifying witnesses. In such circumstance, however, the sixth amendment right to assistance of counsel and the fourteenth amendment guarantee of due process of law may come into play as dictated by the Wade-Gilbert-Stovall triology of opinions. ² Those opinions held that a post-indictment lineup conducted after 12 June 1967 in the absence of the accused's counsel or in such manner as to be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law was illegal. They fashioned exclusionary rules, applicable not only to evidence of identifications made at such an illegal lineup but to a judicial identification made by a witness who had identified the accused at such a lineup. Ever since the impact of the opinions reached cases coming before us we have been engaged in a continual interpretation and construction of the holdings, both as to substance and procedure. In Tyler v. State, 5 Md.App. 265, 272, 246 A.2d 634 we opined that Wade indicates that only those pretrial confrontations which are not subject to fair and meaningful objective review later at trial fall within its strictures, holding specifically that the rationale of wade and Gilbert was not applicable to confrontations at a public pretrial judicial hearing presided over by a judicial officer, e.g. a preliminary hearing. In Palmer v. State,5 Md.App. 691, 696, 249 A.2d 482 we stated that it necessarily followed from the language of Wade and Stovall that the rules of Wade and Gilbert apply also to a lineup conducted before indictment and to other pretrial confrontations within the meaning of Tyler. In Smith and Samuels v. State, 6 Md.App. 59, 66, 250 A.2d 285 we held that when a pretrial confrontation was found to be illegal by the denial of due process of law under Stovall, the exclusionary rules enunciated in Wade and Gilbert, as set out by us in Smith and Samuels, were applicable. And in Smith and Samuels, at 67-70, 250 A.2d 285, we formulated the procedure to be followed upon challenge of evidence of identification. We commented on the procedure in Bailey v. State, 6 Md.App. 496, 252 A.2d 85 and elaborated on it in Albert Darrell Jones v. State, 9 Md.App. 455, 265 A.2d 271, decided 13 May 1970. And see, for example, among the myriad of cases decided by us with respect to identification evidence, Joyner v. State, 7 Md.App. 692, 257 A.2d 444 and Gross and Wagstaff v. State, 8 Md.App. 341, 259 A.2d 570.

We have had before us cases involving a confrontation between the accused and an identifying witness which on the facts did not occur at the direct instance of the police nor were the police parties to it. We have held that such a confrontation was not within the contemplation of Wade and was not illegal by the reason of absence of counsel. Whether they were illegal under the 'unnecessarily suggestive' rule as violating due process, turned on the totality of the circumstances. See Palmer v. State, supra; Smith v. State, 6 Md.App. 23, 249 A.2d 732; Coit v. State, 7 Md.App. 70, 253 A.2d 526; Wethington v. State, 7 Md.App. 79, 253 A.2d 523; Watson v. State, 7 Md.App. 225, 255 A.2d 103; Nance v. State, 7 Md.App. 433, 256 A.2d 377; Simon v. State, 7 Md.App. 446, 256 A.2d 348. The factual circumstances of the present case, however, present questions with reference to the right to counsel and the guarantee of due process of law on a confrontation between a suspect and a prospective identifying witness in a posture not heretofore considered by us.

John Earl Speed and Arthur Newby resided at 2123 East Chase Street in Baltimore City. About 3:00 A.M. on 4 May 1969, Speed, who had been watching television, was asleep on the sofa in the living room on the first floor when there was a knock on the door. He partly opened the door and two men he did not know 'ran in on me and started punching on me. * * * So we fought we rumbled all around the place.' The intruders finally subdued him after severly beating him, knocking him down and threatening to cut his throat. They went to the second floor and Speed ran out to call the police. He said the incident involving him took 20 to 25 minutes.

Newby was asleep on the second floor and was awakened by someone shaking him. He got out of bed and was hit and knocked down. He fought and was struck with a mop and a chair. One of the two men assaulting him said, 'Come on, man, we can't be messing around here. Let's get out of here.' They ran downstairs and left the house. Newby called the police. Clothing, two 'prism' lamps, two clocks, the television set and Newby's eyeglasses were stolen.

When Speed returned to the house with assistance the police had arrived. Speed and Newby described one of the assailants as 'a heavy set guy with a pug nose.' He was wearing a red sweater, red pants and a blue cap. He had cut his hand during the assault.

Police Officer James Horner answered the call to the house. He saw evidence of a fight and blood on the floor and broken items scattered throughout the premises. Speed was bleeding from the ear and mouth and had lacerations about his face. The officer obtained descriptions of the assailants and took Speed and Newby to the emergency room of the Johns Hopkins Hospital for treatment.

About 3:30 A.M. Police Sergeant Edward Mattson was approached by a man at Patterson Park Avenue and Chase Street, about one and one-half blocks from the Speed and Newby dwelling. The man asked that the officer take him to the nearest hospital for treatment of a seriously cut hand. He took him to Johns Hopkins which was the nearest hospital. At the time Mattson knew nothing about the incident at 2123 E. Chase Street. Horner had arrived at the hospital shortly before with Speed and Newby. He saw his sergeant walk in with a man who answered the description of one of the assailants given him by the victims-red sweater, red pants, blue cap, cut hand. Horner brought this to the attention of Speed and Newby. '(T)hey walked over and took a closer look at him, and they both made a positive identification on the scene. He was the suspect they had given me the description of. We had to physically restrain Mr. Speed. He was so zealous in his recognition.' The man was appellant. Mattson said that when he walked into the emergency room he said nothing at all to Speed and Newby. 'I was talking to my officer; asking him what he had, and he went on to explain it. At this time Mr. Speed and Mr. Newby indicated this was the man who had broken into their house and assaulted them.'

At the trial each of Speed and Newby made a positive judicial identification of appellant as one of their assailants. Evidence as to the extra-judicial identification made at the hospital was brought out on cross-examination of them and thus was not offered by the State as substantive evidence of identity or as corroborative of the judicial identifications. The question on appeal is whether the trial court erred in admitting the judicial identifications. ³

Appellant concedes that 'it was strictly by chance or accident that the victims and appellant were all in Johns Hopkins Accident Room at the same time.' He admits that 'the lapse of time between the alleged act and the confrontation was extremely short' and that there was no discrepancy between the description given by the victims and the actual description of appellant. But he claims that Officer Horner directing the victims' attention to appellant was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification. We first observe that it is abundantly clear from the evidence that the police did not suggest that appellant was one of the assailants. Horner, remarking only that the man who came into the accident room with the sergeant fit the description given (and it was obvious that he did), asked if the victims wanted to look at him. Each victim made crystal clear upon detailed inquiry by the court that his judicial identification was based upon observations made at the time of the crime and not upon the confrontation at the hospital. Even if it is assumed that the confrontation at the hospital was illegal we think that the evidence in law was sufficient for the trial court to find that the judicial identifications had a source independent therefrom and thus the pretrial confrontation did not taint the judicial identifications so as to render them inadmissible.

But we do not believe that the confrontation at the hospital was illegal. First as to the right to the assistance of counsel, it is true that under the broad language of Wade and Gilbert, the holdings, as we have found, cannot be limited to post-indictment lineups. But in Wade the court in determining that the presence of counsel, absent and effective waiver, was required at a post-indictment...