Butler v. State, 1404
| Decision Date | 14 July 1980 |
| Docket Number | No. 1404,1404 |
| Citation | 416 A.2d 773,46 Md.App. 317 |
| Parties | Alfred Wallace BUTLER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Joyce R. Branda, Assigned Public Defender, with whom was Robert W. Hesselbacher, Assigned Public Defender, on the brief, for appellant.
Michael A. Anselmi, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur Marshall, State's Atty. for Prince George's County, and Joseph A. Dugan, Asst. State's Atty. for Prince George's County, on the brief, for appellee.
Argued before MOORE and COUCH, JJ., and JACOB S. LEVIN, Specially Assigned Judge.
In this appeal we are asked to reverse a robbery conviction because the trial court allegedly erred in failing to suppress identification testimony and certain physical evidence pursuant to appellant's motion. We are also asked to strike a mandatory sentence imposed pursuant to Art. 27, § 643B, 1 since it was illegally imposed.
A brief review of the facts giving rise to the charges against appellant will suffice in light of the limited issues raised on appeal. The record shows that early on the morning of September 22, 1978, Cora Green had stopped at a 7-Eleven store in Seat Pleasant, Prince George's County, to make a purchase. Upon re-entering her automobile, she observed two black males in a "white over red" late model car parked at the store and, when she proceeded to drive to her apartment, they followed her. When she got home and alighted from her car she saw a man running toward her but she did not pay "that much attention." She was then struck on the right side of her face and her assailant took her pocketbook and fled. She observed this man get into the passenger's side of the "white over red" car and leave. After reporting the incident to the police, an officer responded and a lookout was placed.
Shortly thereafter a stop of a "white over red" car was made by another officer, and the investigating officer and the victim were notified; they proceeded to the scene of the stop and the victim stated that was not the man or the car involved. A second stop of a similar car was made nearby, but again the victim said the men were not involved. Finally a third stop was made pursuant to the lookout. After responding to the scene of this stop, the victim said one of the two men in the car looked familiar but that her assailant had on dark glasses. An officer then asked this man if he wore glasses, to which the man responded in the affirmative but did not then have them on. Sunglasses, with a missing lens, were found in the glove compartment of the car and the man was directed to put them on. Thereafter the victim made a positive identification of this man as her assailant; however, he was not the appellant. Appellant was a passenger in the car. Both men were arrested and charged but only appellant was tried as his codefendant had absconded prior to trial. On appeal appellant contends that his motion to suppress identification testimony and physical evidence should have been granted, and the imposition of a mandatory sentence was illegal. We shall address each issue in the order set out above.
Appellant contends that the trial court erred in denying his motion to suppress the identification testimony, as well as the physical evidence found in the car.
The thrust of appellant's argument, simply put, is that the evidence offered by the State was not sufficient to demonstrate those factors set out in Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-382, 34 L.Ed.2d 401, 411 (1972), namely:
1. the opportunity of the witness to view the criminal at the time of the crime;
2. the witness's degree of attention;
3. the accuracy of the witness's prior description of the criminal;
4. the level of certainty demonstrated by the witness at the confrontation;
5. the length of time between the crime and the confrontation.
Preliminarily we observe that the motion to suppress, in part, went to the identification of appellant's codefendant, not appellant. Appellant contends that the victim's identification of his codefendant was impermissibly suggestive and should be suppressed, from which it would necessarily follow that there would be no link connecting him to the offense. We have reviewed the record with respect to the motion to suppress and conclude that, when viewed in its entirety, the testimony was sufficient to show clearly and convincingly that there was no substantial likelihood of a misidentification. The victim had the opportunity to see her assailant and gave an accurate description of him to the police. The witness exhibited a high degree of certainty after the sunglasses were put on by appellant's codefendant. The witness's elimination of other persons during the prior two stops strengthened her identification of appellant's codefendant and, finally, the length of time between the crime and the confrontation was short. Appellant raises no issue about the lack of any identification of him. We find no merit to this contention.
The victim stated that $8.70 had been taken from her during the incident. This amount was found in the car. The trial court concluded, and we agree, that appellant had no standing to object to the search of the car, during which the money was found. Appellant was seen as a passenger after the stop was made. As a passenger, appellant had no right to the expectation of privacy and thus no standing to object. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
At the time of sentencing the trial judge was advised that the appellant had twice previously been convicted for crimes of violence; a 1972 conviction in the United States District Court for the District of Columbia for burglary and robbery for which he was sentenced to five to fifteen years and three to fifteen years, respectively; and a 1979 conviction in the Circuit Court for Baltimore County for robbery for which he was sentenced to eight years imprisonment. Appellant's attorney advised the sentencing judge that the Baltimore County conviction was on appeal but that said appeal was being dismissed because the transcript had not been timely filed. The trial judge proceeded to sentence appellant pursuant to Art. 27, § 643B(c).
On appeal appellant argues that the trial judge erred in sentencing under § 643B(c) since:
1. the Baltimore County conviction, being on appeal, was not a final conviction,
2. the District of Columbia conviction for robbery was not a proper predicate because it was a foreign conviction and robbery there is not necessarily a crime of violence, and
3. there was no evidence that appellant had served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence.
The State argues that because appellant did not object to the proof at sentencing or the trial court's finding that he was a subsequent violent offender under § 643B(c), the issue is not preserved for appellate review. We disagree. As we held in Slye v. State, 42 Md.App. 520, 401 A.2d 195 (1979), manifest injustice would possibly result if we do not review the issue. We shall do so.
With regard to the Baltimore County conviction, we agree with appellant that since it was not a final conviction it may not serve as a proper predicate for the application of sentencing under § 643B(c). Even though information was given to the sentencing judge that the appeal was going to be dismissed, in fact it had not then been done. Our review of the record, filed in this Court, of the Baltimore County conviction, now on belated appeal, clearly demonstrates that appellant's appeal was stricken by the Baltimore County Circuit Court on November 13, 1979, seven days after the sentencing in the instant case. Thus appellant's Baltimore County conviction was not final and, in our view, may not be considered as a predicate for sentencing under § 643B(c). Furthermore, the trial court was made aware that a petition for post conviction relief would be filed seeking a belated appeal and that it had a reasonable chance of success because dismissal of the earlier appeal was not the fault of appellant. As a matter of fact a belated appeal was allowed and, as of now, has not been determined. We believe that before the drastic effect of a § 643B(c) sentencing can be allowed to stand, the supporting convictions must be final convictions.
With regard to the District of Columbia robbery conviction, we are unable to determine from the record whether it is...
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