Couser v. State, 320

• Decision Date: 15 August 1968
• Docket Number: No. 320,320
• Citation: 245 A.2d 93,5 Md.App. 3
• Parties: John Henry COUSER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 3

5 Md.App. 3

245 A.2d 93

John Henry COUSER v. STATE of Maryland.

No. 320.

Court of Special Appeals of Maryland.

Aug. 15, 1968.

Russell J. White, Towson, for appellant.

Henry J. Frankel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and I. Elliott Goldberg, State's Atty. and Asst. State's Atty., Baltimore, respectively, for Baltimore City, on the brief, for appellee.

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

THOMPSON, Judge.

John Henry Couser, the appellant, was convicted under two separate robbery indictments involving one incident and was sentenced to a term of ten years in each case to run consecutively. The trial was conducted in the Criminal Court of Baltimore without a jury.

Couser alleges reversible error in that his testimony concerning the unfairness of the lineup was stricken from the record. Since we agree with this contention it will be unnecessary to give a statement of the facts.

At the trial the appellant testified that the only identification of him at the lineup (held May 3, 1967) was by a police officer who knew him and not by the victims of the robery, and that further he overhead another police office encouraging the witnesses to make false identification. ¹ On motion by the State's Attorney that this testimony was 'full of hearsay', the trial judge granted a motion to strike the testimony from the record. Merely because words are spoken out of court does not necessarily make them inadmissible. The Court of Appeals and this Court have both held that before lineup testimony can be admitted over objection it must be shown that the lineup was fairly conducted, see Rath v. State, 3 Md.App. 721, 240 A.2d 777, Reeves v. State, 3 Md.App. 195, 238 A.2d 307 and the cases cited therein. This means that the fairness of the lineup was an issue in this case and what was said at the time was therefore not inadmissible testimony. ² See Nixon v. State, 2 Md.App. 611, 236 A.2d 304, 4 Wigmore, Evidence § 1766 (3d ed. 1940). It is, of course, an important factor in determining whether or not a lineup was fairly conducted for the trier of fact to know what, if any, conversation then transpired.

We have repeatedly held that there is no obligation on the trial judge to believe the testimony of the accused, Adams v. State, 4 Md.App. 135, 241 A.2d 591, Gunther v. State, 4 Md.App. 181, 241 A.2d 907, Eley v. State, 4 Md.App. 230, 242 A.2d, 175 but this does not mean that the trial...