Cousins v. State

• Decision Date: 08 August 1973
• Docket Number: No. 703,703
• Parties: Algermon Grandville COUSINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 552

18 Md.App. 552

308 A.2d 692

Algermon Grandville COUSINS v. STATE of Maryland.

No. 703.

Court of Special Appeals of Maryland.

Aug. 8, 1973.

Certiorari Denied Oct. 16, 1973.

L. Charles Miller with whom was Charles J. Kittredge, Cheverly, on the brief, for appellant.

Harry A. E. Taylor, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and E. Garrison Neal, Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before THOMPSON, MOYLAN and DAVIDSON, JJ.

THOMPSON, Judge.

Algermon Grandville Cousins, appellant, was convicted of robbery by a jury in the Circuit Court for Prince George's County, Judge William B. Bowie presiding. A sentence of 8 years was imposed. On appeal Cousins contends that the judgment should be reversed because (1) a photographic identification was tainted; (2) the evidence as to his criminal agency was insufficient to support the conviction; and (3) the prosecutor improperly cross-examined the accused concerning a prior conviction.

At about 11:15 p. m. on January 24, 1970, a lone robber made off with approximately $140 from Arby's Roast Beef House at Coral Hills in Prince George's County. At the time of the robbery the only other persons in the restaurant were two employees, Mr. Steve Cornell Isom and Mr. Ernest Tyrone Best. The employees described the robber to police as being approximately 6 feet to 6 feet 3 inches in height and weighing approximately 190 pounds. He was a lightskinned negro with a medium bush haircut. Soon after the robbery a suspect, not the appellant, was viewed by the two witnesses but both of them declared that he was not the robber. Later both employees were taken to the police station where they viewed a large number of photographs but identified no one. The photograph of appellant was not among those viewed by the employees at that time. Some two months later, on March 21, 1970, Detective Raymond E. Daniels visited the witnesses separately in their homes and displayed a group of 31 photographs to each. Both witnesses selected one of these photographs but with different degrees of certainty. At his home Mr. Isom stated that the robber was the person photographed in what became State's Exhibit No. 14; concededly that exhibit is a photograph of appellant. Mr. Best selected the same photograph as 'looking like the robber' but was unable to make a positive identification. Appellant was not apprehended until almost two years later, January 10, 1972, at which time he was photographed and the photograph was introduced into evidence as State's Exhibit No. 33.

At the time of his arrest and at the time of the trial, appellant wore a large bush haircut, long sideburns, a mustache and a goatee. State's Exhibit No. 14 taken on September 25, 1968 shows at that time the appellant wore short hair and sideburns and had no mustache nor goatee.

At the trial, on July 11, 1972, Mr. Isom stated that appellant looked like the person whom he had identified from a picture on March 21, 1970 but due to the two and one-half year time lapse he could not positively identify appellant as the robber. He did indicate that appellant looked like the person in the photograph he had previously identified.

Mr. Best testified that although two months after the robbery he had selected the photo of the appellant as looking like the robber, he could not at the trial say that the appellant was that person. He explained '(w)ell, there are some similarities, but it is not, you know, a very very good resemblance of the person', pointing out that 'the person that took the money . . . didn't have a beard, mustache, didn't have long sideburns.' The evidence showed that the restaurant at the time of the robbery was well lighted and both employees had an opportunity to view the robber for several minutes.

The appellant testified denying participation in the robbery and stated that his appearance in the photograph taken at the time of his arrest was more like his appearance on the date of the robbery than the photograph which was taken in 1968.

I Tainted Identification

Upon objection to the photographic identification, the court conducted a hearing out of the presence of the jury. At the conclusion of the hearing, the trial judge ruled that there was no evidence to show that the March 21, 1970 identifications were tainted but inasmuch as the State's Attorney had shown each of the two witnesses the single picture, State's Exhibit No. 14, on the morning of the trial, he would preclude the State from attempting to show the new photographic identification. On appeal, appellant contests this ruling only on the basis that there were certain unidentified markings on the back of the pictures. As all of the witnesses testified that the identifications were made without viewing the backs of the pictures, we are unable to see how those markings could have in anyway tainted the March 21, 1970 identifications. We agree completely with the finding of the trial judge that there was nothing to show these identifications were in anywise tainted. The appellant failed to carry his burden of showing that the photographic identifications were the product of improper suggestion. Williams v. State, 11 Md.App. 607, 275 A.2d 522 and Brown v. State, 10 Md.App. 462, 271 A.2d 182.

Citing McGilton v. State, 12 Md.App. 174, 278 A.2d 76 and Smith and Samuels v. State, 6 Md.App. 59, 250 A.2d 285, appellant argues that the exhibition of a single photograph immediately prior to trial was so suggestive that the in-court identification should not have been admitted in the absence of a showing that the identification was based on an independent source. The easy answer to this objection is that the defendant made no objection to the in-court identifications, such as they were, therefore, there was no occasion for the State to attempt to show that the courtroom identifications were based upon an independent source; see Boswell v. State, 5 Md.App. 571, 249 A.2d 490 and Thompson v. State, 6 Md.App. 50, 250 A.2d 304. There is nothing before this Court to review. Md.Rule 1085.

II Sufficiency of the Identification Evidence

Appellant argues that under Gibbs v. State, 7 Md.App. 35, 253 A.2d 446, we should hold that the identifications were insufficient to support the conviction. In Gibbs, the only identification witness stated positively he was mistaken as to his extrajudicial identifications and that he not only could not identify appellant at the trial as the man who robbed him but stated positively that he was not the person who robbed him. We do not think that case is controlling under the facts here. Only Best gave any indication that the man on trial was not the robber and, in addition, he was very equivocal and pointed specifically to the longer hair, sideburns, mustache and goatee as reasons he could not say that the accused looked liked the robber. The other witness, Mr. Isom, not only made a positive out of court identification but stated in court that in his opinion the appellant looked like the robber. There is quite a distinction between a witness who says that he was mistaken in a prior identification and that the person on trial was not the criminal and a witness who states that he was positive of the prior photographic identification but cannot positively say that the person presently on trial is the robber...