Dobson v. State, 490

• Citation: 335 A.2d 124,24 Md.App. 644
• Decision Date: 20 February 1975
• Docket Number: No. 490,490
• Parties: Sherman Woodrow DOBSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 644

24 Md.App. 644

335 A.2d 124

Sherman Woodrow DOBSON v. STATE of Maryland.

No. 490.

Court of Special Appeals of Maryland.

Feb. 20, 1975.

Certiorari Denied June 2, 1975.

Arnold M. Zerwitz and Elsbeth Levy Bothe, Asst. Public Defenders, Baltimore, with whom was Alan H. Murrell, Public Defender, Baltimore, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and Sandra A. O'Connor, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before THOMPSON, GILBERT and MOORE, JJ.

GILBERT, Judge.

Sherman Woodrow Dobson, appellant, was indicted by the Grand Jury of Baltimore City for a multitude of criminal offenses including the murder of James A. 'Turk' Scott. Dobson was convicted, however, in the Criminal Court of Baltimore by a jury of only kidnapping, robbery with a deadly weapon, receiving stolen goods and the use of a handgun in the commission of a crime of violence. Dobson received sentences aggregating fifteen years. Lamenting his convictions, Dobson has appealed to this Court where he asks:

'1. Whether (his) convictions should be reversed since the pre-trial identification procedures were so impermissibly suggestive as to make irreparable misidentification a near certainty and deny (him) due process of law?

2. Whether the trial judge abused his discretion by allowing the rebuttal testimony of Carl Sylvester Washington?

Prior to trial Dobson, through his counsel, filed a motion to suppress an in-court identification of the traverser on the ground that the identification was predicated upon an impermissibly suggestive photographic identification procedure. The motion was directed at the identification that the State expected to be made at trial by Stephen Allen Brown, an associate minister of the Manor Bible Baptist Church, manager of the 'Grace Memorial Hour', and part-time cab driver.

On June 18, 1972, Brown, while operating his taxicab, picked up two passengers at Liberty Heights Ave. and Garrison Blvd. When the passengers entered the cab they asked to be taken to Wabash and Edgewood Avenues. When they had arrived at that destination one of the passengers, later identified as Dobson, put a gun into Brown's side. The second passenger, who was seated on the rear seat of the cab, placed a gun to the back of Brown's head and the duo of holdup men were joined by a third person. Brown was removed from the driver's seat and placed on the rear seat of the cab. Dobson drove the cab to a wooded area near the Lemmel Junior High School. Once there the trio of culprits accompanied Brown into the wooded area. Brown was handcuffed to a tree. Dobson remained with Brown and the other two exited the area. Brown remained in Dobson's company for a period of two and one-half to three hours during which time he had the opportunity to observe Dobson, although Brown stated that he avoided staring directly at Dobson for fear that if he did so he might be killed. According to Brown the wooded area was near a railroad track and there was a light about fifty yards away. He knew that his assailant was wearing glasses, was brown skinned, and he was also able to determine that his abductor had a 'funny-shaped nose.' When the other two men returned to the wooded area Brown observed that one of them had a submachine gun. Brown was released by the trio, found his way out of the woods and ultimately called the police. The description that he furnished the police was vague. Shortly after the robbery he was shown some photographs from which he was unable to pick any of his abductors. Brown candidly admitted that he could not recognize two of the three kidnappers. On July 14, 1973 Brown was shown a series of fifteen additional photographs from which he picked the photograph of the appellant, Sherman Dobson. Brown stated that that photograph depicted the person who put the gun in his side and who spent the two and one-half to three hours with him in the wooded area. Of the fifteen photographs submitted to Brown, only one individual is shown to be wearing glasses and that is the appellant. Dobson's lawyers, for three days of pretrial hearing, ¹ valiantly and vigorously sought to discredit Brown and to demonstrate that the photographic identification was so impermissible suggestive that it should be excluded. At the conclusion of the hearing the trial judge stated that during the course of the pretrial hearing he had borne in mind the test enunciated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Smith v. State, 6 Md.App. 59, 250 A.2d 285 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1402, 25 L.Ed.2d 674 (1970), as to whether 'the confrontation procedures (were) so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.' The judge stated that he was 'also mindful of the fact that (he) must take into consideration the totality of the confrontation and . . . the totality of the circumstances (are) significant.' The trial judge observed that Mr. Brown did spend considerable time in the woods with Dobson and that the judge had regarded Brown's 'demeanor and manner very carefully.' He interpreted Brown's testimony as being 'very honest' and that Brown was a 'sincere individual' who really did not want to get involved. The judge went on to state:

'(Brown) said, 'I paid very little attention to the first man, and the second man I couldn't see at all,' which gives me some belief that this was a very truthful witness and that he was not trying to either get in the limelight or to falsely accuse anyone. But he said, 'I saw the number one man as he got in. He wore glasses, he had a funny-shaped nose, and I got a glance at him, and I estimate his weight,' . . . he said 'a little heavier than me, and I run one hundred and sixty-five, so I would say he is around one hundred and seventy, and he was in his early twenties,' and that convinces me he got a rather substantial look at him, and a little more than the defense argued. He also said later on he was brown-skinned. Then he brought out later that his shoes were tan, brown pants, and I gather from that that a lot of evidence had to be drawn out of this witness.

Over and apart from this it is uncontradicted that (Brown) was in the woods with (Dobson) some two to three hours; he said they talked, talked about prayer. (Brown) wasn't comfortable so (Dobson) went and got something to make him comfortable, and what have you. I also note . . . that (Brown) said at one time that looking back, he was able to get some description. He said, now that I've thought about it awhile and looking back and reflecting my thoughts of the past occasion,' (Brown) gave his testimony. He said he didn't want to jeopardize his life by being able to identify anybody, which I interpret to mean he wasn't staring and looking for features and say(ing to himself), 'now, when I get out of here, I'm going to really nail this guy.' I think he was saying, 'I didn't stare at him to get the guy so that I'd be able to identify him later on.' For that reason, I don't interpret that to mean that he got no look at him, because he was in the woods all this time, and I've considered all this talk that he mentioned, which is part of the record, that he did get a look at him.'

Dobson's first attack upon the judgment of the Criminal Court is focused on the pretrial motion to suppress the in-court identification. Consequently, we are limited in our review to the evidence produced at such a hearing, because it was on that particular evidence, and that evidence alone, that the trial judge made his determination to deny the pretrial motion to suppress the identification. ²

Most attacks in this Court upon convictions grounded on possibly tained photographic identification have been unsuccessful. See Sallie v. State, Md.App., 332 A.2d 316, filed February 14, 1975; Jordan v. State, 19 Md.App. 283, 310 A.2d 575 (1973); Cousins v. State, 18 Md.App. 552, 308 A.2d 692 (1973), cert. denied, 270 Md. 738 (1973); Conway v. State, 15 Md.App. 198, 289 A.2d 862 (1972), cert. denied, 266 Md. 735 (1972), cert. denied, 413 U.S. 920, 93 S.Ct. 3070, 37 L.Ed.2d 1042 (1973); Crenshaw v. State, 13 Md.App. 361, 283 A.2d 423 (1971), cert. denied, 264 Md. 746 (1972); Jackson v. State, 13 Md.App. 31, 280 A.2d 914 (1971); Jones v. State, 10 Md.App. 420, 270 A.2d 827 (1970)), cert. denied, 260 Md. 721 (1971); Dorsey v. State, 9 Md.App. 80, 262 A.2d 591 (1970), cert. denied, 258 Md. 727 (1970); Mouzon v. State, 9 Md.App. 57, 262 A.2d 588 (1970), cert. denied, 258 Md. 729 (1970); Joyner v. State, 7 Md.App. 692, 257 A.2d 444 (1969), cert. denied, 257 Md. 734 (1970); Bailey v. State, 6 Md.App. 496, 252 A.2d 85 (1969), cert. denied, 255 Md. 739 (1969). But see Perkins v. State, 11 Md.App. 527, 275 A.2d 517 (1971) wherein the Smith v. State procedures were not followed. Dobson asserts, however, that none of the cases that we have heretofore considered have been so egregious as the case presently before us.

Photographic identification procedures are usually employed by the police in three separate, but not necessarily exclusive, phases of a case: the investigation phase, the in-custody phase and the charge-on-defendant phase. N. Sobel, Eye Witness Identification: Legal and Practical Problems § 45 (1972). Courts, as a general rule, have upheld the constitutionality of photographic identification at the investigation stage. N. Sobel, supra § 45.01. See e.g. United States v. Benson, 495 F.2d 475 (5th Cir. 1974); United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970); United States v. Hamilton, 137 U.S.App.D.C. 89, 420 F.2d 1292 (1969); United States v. Butler, 405 F.2d 395 (4th Cir. 1968), cert. denied, 396 U.S. 853, 90 S.Ct. 114, 24 L.Ed.2d 102 (1969); United States v. Strouse, 375 F.Supp. 672 (D.C.Pa.1973); People v. Anderson, 389 Mich. 155, 205 N.W.2d...