Coleman v. State

• Decision Date: 30 October 1969
• Docket Number: No. 75,75
• Citation: 8 Md.App. 65,258 A.2d 42
• Parties: Michael Lamont COLEMAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 65

8 Md.App. 65

258 A.2d 42

Michael Lamont COLEMAN v. STATE of Maryland.

No. 75.

Court of Special Appeals of Maryland.

Oct. 30, 1969.

Charles L. Shuman, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Fred K. Grant, State's Atty. and Asst. State's Atty., for Baltimore City respectively, on brief, for appellee.

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

ORTH, Judge.

The only contention presented by Michael Lamont Coleman, also known as Michael Gross, in attacking his convictions at a court trial in the Criminal Court of Baltimore of assault upon Gertrude Grunder with intent to murder and the robbery of Gladys Garcia with a deadly weapon is that an identification of him made at the trial by Barbara Prkna, an eyewitness to the crimes, was erroneously admitted in evidence.

On 7 March 1968 the Washington Boulevard Branch of the Union Trust Company was robbed. Mrs. Grunder was employed as a teller at the bank. Shortly before 2:00 P.M. she heard 'a scuffling sound and a shout or a cry.' Then she heard a shot and turned and 'saw a colored man half-way over the counter with a gun smoking in his hand.' The gun was in his right hand and he was reaching with his left hand for a cloth coin bag in the working area of another teller, Mrs. Garcia. Mrs. Grunder had been shot. ¹ 'Then they just said, 'Get down' and I automatically got down' behind the counter. 'They pushed the alarm * * * the teller's alarm, A.D.T.' She could not identify the robber.

Mrs. Garcia was performing her duties as a teller when she saw the hands of a 'colored person' reaching over the counter for a bag of coins. She saw a gun in one of the hands, tried to hide beneath the counter and heard a shot. When she stood up a short time later she saw blood on the back of Mrs. Grunder's blouse. ² Nineteen dollars in pennies, contained in a cloth bank bag, had been stolen. It was money obtained by her from the bank for use in connection with her duties as a teller. She did not see the robber's face; she could not identify the robber.

The manager of the bank branch, Frank Kanoke, was working at his desk about 1:45 or 1:50 P.M. on 7 March. 'I heard some scuffling and I heard screaming and a report or a sound like a gun-short fired going off. I got up from my desk to go back to find out what was going on. About this time the man was trying to get out the door. He had a pistol. He pointed it at me or at least to my area * * * and I ducked. * * * I didn't see his face well at all.' He could not 'positively identify the individual who robbed the bank.'

Mrs. Barbara Prkna was one of some thirty customers in the bank at the time of the robbery. She was at Mrs. Garcia's window. 'Mrs. Garcia and I were talking and she was getting ready to cash my check and I felt there was someone close to me, somebody come in. And I noticed someone jumped up kind of leaned over the counter. Well, at the time I thought perhaps he was picking up for Mrs. Garcia or trying to get her attention or some reason or another. She looked up rather startled and the person jumped up again and reached over the counter-a grill work on top-and made a grab for the money bag that was sitting. You could see him from where I was, but not from over the-from over two or three feet over, and I could tell then this person was trying to take the money from the next teller. She made a motion to go towards this money holding the bag down, and the gentleman had a gun in his hand, which at the time I thought was a starter pistol or playing gun, and he shot at her.' Mrs. Prkna looked at his face. Asked how long she looked at his face she said, 'Seemed like quite awhile at the time. Three minutes? Three or four minutes?' She made a positive in-court identification ³ of the appellant as the robber. This identification came into evidence at that point without objection. The robber grabbed the money bag and went to the door. 'He was having trouble opening the door. He turned around, kind of waived his gun around. He was quite scared looking and then he got out * * * He did have the money bag in his hand. He did manage to get off with one.' On cross-examination it was elicited that Mrs. Prkna had attended a lineup at Central Police Station. She said the appellant was in that lineup. At this point defense counsel moved to strike her testimony 'till the State establishes that that lineup was conducted fairly.' He contended that until the State showed that the lineup was conducted fairly, 'until it was shown (the in-court identification) has not been tainted by a prior confrontation it should not be admitted.' ⁴ The trial court said it understood that the appellant moved to exclude the in-court identification and denied the motion. Defense counsel reserved the right 'to renew the motion at a later time in the course of the trial.' He then examined the witness in detail with respect to the lineup at the Central Police Station. He elicited that there were two or three other girls she knew who were at the lineup, that about five men were in the lineup, that she was told nothing about any of the men in the lineup, that all were 'Negroes', that the appellant had on dark clothing and a raincoat, a shirt but not a white shirt-a dark one, no tie, that she observed the men about five minutes, that the appellant did not have a mustache, that his hair was about the same length as his hair was at the trial, that others in the lineup were dressed in a manner similar to the appellant. It was also elicited from the witness that she had been shown photographs but she 'did not positively identify from photographs.' She had been asked to pick out a picture of anyone she thought resembled the robber and she picked out three 'but not positively.' The three photographs were of different men. She thought the appellant was among the three she picked out. She did not recall seeing in the lineup the other two men whose photographs she had picked out. She was shown photographs within an hour after the commission of the crime and on several occasions thereafter. The three photographs she picked out, 'not positively' as the photograph of the robber-'but there was a resemblance in the picture and one way or another to the person I remember seeing'-were apparently not picked out at the same viewing but one each during the several occasions she was shown photographs. The last one she picked out was about four days before the lineup. After all this it was adduced that she had not positively identified the appellant as the robber at the lineup. She was then asked: 'If you were not positive at the time of the lineup why are you positive that this is the man today?' She replied: 'The conditions were quite different at the lineup. They were standing on the platform and he had lights above him, all around him. I stated at the time I did think that was the individual, though he appeared taller in the lineup. And, a lighter complexion when I saw him in the Court. He was facing the exactly-excuse me-at the hearing-what you would call it, he was facing me exactly as he did in the bank, and when he turned around I also remember seeing a full-view face of him and I was positive.' It was then elicited from her that she had attended a preliminary hearing after viewing photographs and attending the lineup, that at the hearing no defendant other than the appellant was present, that 'the police brought in just this one man at the preliminary hearing and the Judge at the preliminary hearing said, 'Michael Coleman, you are charged with assault with intent to murder and robbery with a deadly weapon." It was at that time that she first made a positive identification of the appellant as the robber.

The appellant testified on the limited issue of the constitutionality of the lineup. He said that Officer Norman Woingust had advised him of his right to have an attorney present at the lineup and he requested the presence of a lawyer. 'The officer went out and got a lawyer and the lawyer told me he was my lawyer.' He did not know the lawyer's name and did not see him again after the lineup.

Defense counsel renewed the motion to strike the testimony of Mrs. Prkna. The State offered the testimony of Officer Woingust on the issue of the lineup. He testified that he had advised the appellant of his right to be represented by counsel at the lineup, reading him a waiver of rights form. The appellant dd not sign the waiver and said he wanted a lawyer. Woingust presented the request to the Municipal Court and later that afternoon was told by the judge that the Clerk of the Court would send an attorney to the lineup. The lineup was conducted at 8:00 P.M. on 2 April 1968 and James McAllister, Esq. was present at the lineup to represent the appellant. The lineup identification report was admitted in evidence. It consisted of two sheets. It showed that six 'colored men' were in the lineup, designating the age, height, weight and clothing of each. The appellant was originally in the fourth position. Twenty witnesses viewed the lineup. Four of them were listed on the first sheet. Of those four Sophia Ballinger positively identified No. 4 and William E. Bundy was not sure as to No. 4. Identification was negative as to the other two witnesses. Under 'remarks' it was noted '4 changed 6', but it did not indicate when the change was made. The second sheet listed 16 witnesses. Of these Gloria Baker and Carolyn Taylor positively identified the man in No. 5 position and Edward Lewis the man in No. 4 position. Under 'remarks' it was noted '#5 to #4' but there was no indication when the change was made. Identification by the other 13 witnesses, including Barbara Prkna, Gladys Garcia, Gertrude Brunder and Frank Knoke (sic) was indicated as negative. The lineup report was not explained. Woingust said that neither he nor any other officer in his presence suggested to...