Brown v. State, s. 302

• Citation: 272 Md. 450,325 A.2d 557
• Decision Date: 26 September 1974
• Docket Number: 304,Nos. 302,s. 302
• Parties: Carville Roland BROWN v. STATE of Maryland. Clifford James MOSES and Richard Edward Smith v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 450

272 Md. 450

325 A.2d 557

Carville Roland BROWN v. STATE of Maryland.

Clifford James MOSES and Richard Edward Smith v. STATE of Maryland.

Nos. 302, 304.

Court of Appeals of Maryland.

Sept. 26, 1974.

Stephen A. Tarrant, Assigned Public Defender (Henry C. Engel, Jr., Assigned Public Defender, Bel Air, on the brief), for appellants Moses and Smith.

Jonathan A. Azrael, Assigned Public Defender, Baltimore, for Brown.

Bernard A. Raum, Alexander L. Cummings, Asst. Attys. Gen. (Francis B. Burch, Atty. Gen., Clarence W. Sharp, Asst. Atty. Gen., Milton B. Allen, State's Atty., Bernard A. Kole, Asst. State's Atty., Baltimore, for Baltimore City, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The appellant, Carville Roland Brown, was convicted by a jury in the Criminal Court of Baltimore (Levin, J., presiding) of the armed robbery of one Grace Vance. The judgment imposed upon his conviction was affirmed by the Court of Special Appeals in an unreported per curiam. ¹

About noon on February 8, 1972, Grace Vance, the sole employee in a dry cleaning store, was confronted by a man 'with hair on his face'; with a gun placed at her back she was commanded to open the cash register and surrender its contents. About a week or two after the robbery the victim saw and recognized her assailant on two separate occasions in a nearby neighborhood bar and reported her observations to Detective Grady of the Baltimore City Police Department; she was advised that if she saw the gunman again 'to call a radio car.' The following weekend, on March 3, 1972, she did indeed again see him in a bar, the police responded to her call, she pointed out the appellant as her assailant and he was arrested. Taken to the police station he was photographed.

In her direct testimony, when asked whether she saw in the courtroom the individual who had robbed her, the witness replied: 'I can't identify him without the hair on his face.' At a bench conference the prosecutor told the trial court that he desired to submit a photograph to the witness, taken of the appellant at the time of his arrest, and intended to ask her if the person shown in the photograph was the individual who had robbed her. When defense counsel objected the trial court (at the bench conference) ruled that no foundation had been laid for the introduction of such a photograph. The court then excused the jury and sequestered the witness Vance to permit the offering of such foundation evidence. Out of the presence of the jury Detective Grady identified the appellant as the individual identified by the prosecutrix at the tavern; he testified concerning the appellant's arrest and the taking of the photograph which depicted him as he appeared at that time. The trial court then recessed and requested counsel to adjourn to chambers where a discussion in the defendant's absence ensued concerning the admissibility of the photograph. The trial judge ruled that to avoid an 'impermissibly suggestive' identification the prosecution would be required to produce and exhibit to the witness Vance five or six photographs of persons closely resembling the defendant and would then be permitted to ask her whether she could pick out (from such a group) the photograph of the man who robbed her. Although the prosecutor, arguing that the appellant between the time of his arrest and the time of trial had changed his facial appearance by the removal of a beard, or hair growth, objected to the procedure, counsel for the appellant concurred and felt the procedure ordered was 'very fair and equitable under the circumstances.' The detective was summoned to the chambers conference at the request of the trial court and there presented counsel with 'at least 30 photographs' from which array counsel mutually agreed upon four photographs-as closely resembling the appearance of the appellant-to be included with the photograph taken of him at the time of his arrest. The detective gave no testimony in the chambers conference.

Upon a resumption of the proceedings in open court-in the presence of the jury and the appellant-Grace Vance, presented with the five photographs agreed upon by counsel selected the photograph of the appellant as that of her assailant; the arresting detective in his testimony identified the photograph as that taken at the time of the appellant's arrest.

The Court of Special Appeals, in affirming the appellant's conviction, stated:

'Brown claims that the proceedings in chambers were a stage of the trial and asserts that because he was not present, the judgment must be reversed. If what occurred in chambers were a stage of the trial, he would be correct. State v. Saul, 258 Md. 100 (265 A.2d 178), affirming Saul v. State, 6 Md.App. 540 (252 A.2d 282). We find, however, that the proceedings in chambers were not a stage of the trial within the contemplation of the common law preserved in this State by Art. 5, Declaration of Rights of the Constitution of Maryland and stated with particularity by Maryland Rule 775. We think the proceedings were no more than an attempt to formulate a method, fair to Brown, for a judicial identification through the viewing of photographs. The in-chambers discussion in substance concerned the admissibility of evidence and was within the rationale of our holding and the authorities supporting it in State v. Tumminello, 16 Md.App. 421 (298 A.2d 202). We hold that the absence of Brown did not violate his right to be present at the trial and does not compel reversal of the judgment.'

The appellants Clifford James Moses and Richard Edward Smith were each convicted of assault with intent to rape following a jury trial in the Circuit Court for Harford County (Close, J., presiding). Their convictions and the judgments imposed thereon were affirmed by the Court of Special Appeals in an unreported opinion. ²

Following the direct testimony of one Bernard Redd, a codefendant, who had been granted immunity, and a recess taken at the conclusion thereof, counsel for the appellant Moses, before beginning cross-examination, pointed out to the trial court that Redd during the recess had been seen speaking with another person in the courtroom in apparent violation of the order of sequestration of witnesses.

The trial court requested that counsel adjourn to chambers. At the commencement of the in camera proceedings the trial court asked counsel whether or not they wanted the defendants present; counsel for the appellant Moses stated that it was 'not necessary.' In chambers-out of the presence of the appellants-the trial court examined one Terry Terry, a sister of Redd, who acknowledged that during the recess she had spoken with her brother, but stated that she had merely inquired 'where his lawyer was' and had asked 'whose attorney was questioning him.' In response to serveral questions by Moses' counsel about the reasons for her concern she responded 'because he is my brother'; she also told the trial judge that she had not heard any admonition by the court to the witness not to talk to anyone.

After enjoining her not to talk to anyone 'in front of the rail,' the trial court concluded that there were no further matters requiring inquiry and reconvened the proceedings in open court. He informed the jury that during the recess a witness had in fact talked to someone in the courtroom after having been warned not to do so, that the witness had been approached by his sister, who had 'come inside the rail' and asked a question which had nothing to do with the matters in evidence. The trial court then repeated its directive to all persons in the courtroom not to come 'in front of the rail and become involved with the trial.'

Concerning this issue Judge Moylan, for the Court of Special Appeals, stated:

'Although it is clear that an accused has the right under Article 5 of the Declaration of Rights of Maryland and Maryland Rule 775 to be present at every 'stage of the trial,' we are persuaded that this brief conference in chambers to see if a violation of the sequestration rule had occurred was not a 'stage of the trial' within the contemplation of the rule. See Midgett v. State, 216 Md. 26 (139 A.2d 209); Brown v. State, 225 Md. 349 (170 A.2d 300); Martin v. State, 228 Md. 311 (179 A.2d 865); State v. Saul, 258 Md. 100 (265 A.2d 178); Saul v. State, 6 Md.App. 540 (252 A.2d 282); and particularly the excellent and full discussion by Judge Thompson in State v. Tumminello, 16 Md.App. 421 (298 A.2d 202).'

We granted certiorari in each of the cases limited solely to the question of whether the petitioners had been denied their constitutional rights to be present during every stage of their respective trials.

Maryland Rule 775, effective January 1, 1962, is virtually a pro tanto adoption of Rule 49 of the Uniform Rules of Criminal Procedure (1952) proposed by the National Conference of Commissioners on Uniform State Laws. Our Rule reads as follows:

'The accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided in this Rule. The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution. In a prosecution for an offense not punishable by death the defendant's voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. The defendant's presence is not required at a reduction of sentence under Rule 764 (Revisory Power of the Court), fixing of the date of execution in a capital case, or at a proceeding in an appellate court.'

The provisions of the Rule have been held to be a restatement of the common law right preserved by virtue of Article 5 of the Maryland...