Dyson v. State

• Decision Date: 27 April 1965
• Docket Number: No. 238,238
• Citation: 238 Md. 398,209 A.2d 609
• Parties: Kenneth J. L. DYSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 398

238 Md. 398

209 A.2d 609

Kenneth J. L. DYSON v. STATE of Maryland.

No. 238.

Court of Appeals of Maryland.

April 27, 1965.

Reargument Denied June 2, 1965.

See 210 A.2d 730.

Joseph G. Koutz, Baltimore, for appellant.

John W. Sause, Jr., Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., and Charles E. Moyland, Jr., State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The appellant Dyson was charged with rape in two cases and, in each case, the jury found him guilty. In one case, not now before us, the jury added to their verdict the words 'without capital punishment' and the sentence was imprisonment for twenty years; in the other, the case before us, the jury did not qualify their verdict of guilty of raping Mrs. Helen Kelly and the court imposed the death penalty. The appeal is from the latter judgment and sentence.

At the trial below in the Kelly case, the strategy of the defense was to attempt to persuade the jury that the rape had been committed by one James Melvin. The trial tactics which it was hoped would make the strategy successful were to prevent the victim from identifying Dyson as her assailant, to keep out of evidence damaging admissions made by Dyson to the police, and to present to the jury the fact that Melvin had confessed to the Kelly rape and keep from the jury any explanation of why the police and the State's Attorney did not believe Melvin committed that crime and, therefore, why they did not prosecute him for it. In this appeal, Dyson continues his strategy by claiming reversible errors in the actions of Judge Harris in (a) permitting the court room identification to be made, (b) admitting the statements, and (c) permitting explanation of the reasons why Melvin was not prosecuted, and claims further such errors in (d) the admission of a photograph of the victim taken after the assault, (e) the court's instructions, (f) the insufficiency of the evidence, and (g) the imposition of the death sentence.

In late 1962 and early 1963 there had occurred a series of sexual assaults on women in the Bolton Hill area of Baltimore. Mrs. Helen Kelly was brutally assaulted and raped about 1:00 a. m. on January 31, 1963 (as she was returning home from work) in the eighteen hundred block of Morris Alley, which runs between Eutaw Place and Madison Street, by a man who overtook her and seized her from behind. Early in the morning of February 14, 1963, one Delores Cannaday was choked at Druid Hill Avenue and Laurens Street. She promptly gave a description of her assailant to the police. About eight-thirty in the evening of the same day, Officer Stanley, who was cruising in a police car with another officer and a policewoman, saw Dyson walking in the sixteen hundred block of Pennsylvania Avenue and, believing that he fitted the description of the Cannaday assailant, took him into custody. Five minutes after the arrest, Sergeant Todd, who was in charge of the investigation of the Kelly rape and other similar crimes in the Bolton Hill neighborhood, arrived at the police car in which Officer Stanley had put Dyson, and witnessed a search of Dyson's person. Certain articles were taken from him but the record does not reveal what they were. Dyson was taken to police headquarters and questioned for some time about the Cannaday occurrence. He was then placed in a cell where he remained until February 15, at seventhirty in the evening, when he was put in a line-up which was viewed by Mrs. Kelly. She was unable to identify Dyson. About two hours later he was taken to a hospital and placed in another line-up as part of the investigation of another case. At tenthirty, interrogation as to the Kelly case began. At eleven-forty-five he began a trip about the City with the police, pointing out the locations at which various assaults had occurred. When he was returned to police headquarters at twelve-fifty-five, he was questioned further. He began giving the statement used against him in the Kelly case at one-fifteen on the morning of February 16 and finished at two-ten. In the statement he said:

'When I turned the corner on Laurens Street from Eutaw Place I saw this lady [Mrs. Kelly] walking toward me in the 300 Block of Laurens Street. We were both crossing Morris Alley, she was walking and I was running and I ran into her. When I ran into her she began to struggle with me and because I was mad about the fight [which had broken out in a group of friends which Dyson had just left] I hit her with my fist that was partially closed. I don't know where I hit her but I hit her solid because my hand swoll up and it was sore for a day or two.'

After Dyson gave the statement he was taken to the office of police captain Deuchler, and Mrs. Kelly, who was there, again could not identify him until, the record indicates, she recognized his voice when he spoke, saying he did not know her (on cross-examination, when the validity of her court room identification was vigorously attacked, she insisted several times that, 'I did not forget his voice').

We find no error in the admission into evidence of Mrs. Kelly's identification of Dyson as the man who attacked her. The fact that she had failed to recognize him in a line-up and in the captain's office until he spoke, all of which was before the jury, went to the weight of her testimony but did not make it inadmissible. Hursey, Jr. v. State, 233 Md. 243, 196 A.2d 472; Booth v. State, 225 Md. 71, 169 A.2d 388; Lenoir v. State, 197 Md. 495, 504, 80 A.2d 3, 7 ('Both Miss Nelson and Mr. Cann testified that they identified his voice when they saw and heard him talking to Captain Kriss. The testimony was clearly admissible, its weight and the credibility of the witnesses being for the jury. Rowan v. State, 175 Md. 547, 557, 3 A.2d 753'). See also Lubinski v. State, 180 Md. 1, 8-9, 22 A.2d 455. The court's instructions on the point to the jury suggested full consideration of the weakness of the failure of the extrajudicial identification. Judge Harris said, in part, of Mrs. Kelly's identification of Dyson:

'The weight and value to be given to this testimony, her inability to pick him out of a line-up, her ability to pick him out at the trial table, merely means that the issue is sufficient to be submitted to you for your determination, and not that of the court. It can or cannot, in your own sound judgment, amount to a sufficient identification of the defendant by Mrs. Kelly. You must weigh the testimony, not on the number of witnesses who testify to either version, or either side, but on what you believe to be the most credible and reliable testimony under all the evidence.'

The record offers no support for appellant's claim that he was unconstitutionally required to incriminate himself when he was taken to the captain's office to meet Mrs. Kelly. All that appears is that Mrs. Kelly did not recognize Dyson until he said he did not know her and then, apparently, she remembered his voice. This Court, as have many others, consistently has held that requiring a suspect before trial to assume a posture or give his fingerprints or put on clothing similar to that worn by the criminal at the time of the commission of the crime, or otherwise reasonably to present his physical attributes as an aid or guide to identification, does not amount to requiring the suspect to incriminate himself or affront any other of his constitutional rights. Williams v. State, 231 Md. 83, 86-87, 188 A.2d 543; Davis v. State, 189 Md. 640, 644, 57 A.2d 289; Shanks v. State, 185 Md. 437, 444, 45 A.2d 85, 163 A.L.R. 931; cf. Lenoir v. State, supra; 13 Md.L.Rev. 31, 33; 17 Md.L.Rev. 193, 208-211.

The appellant offered no evidence that the admissions he made to the police were in fact involuntary, and, all things considered, including the length of the detention and interrogation and the manner and intensity of the questioning, there is nothing before us to require a finding that it was. He argues first that the State did not offer as witnesses to voluntariness every policeman who was present when the statement was given; second that the statement was inadmissible because it was made while he was in custody after an illegal arrest and was without counsel and without advice as to his constitutional right to remain silent; and third that the statement was not complete.

Officer Stanley, one of the arresting officers, testified that no threats or promises were made and no inducements offered to Dyson while he was in their custody prior to being turned over to the custody of Sergeant Todd. Sergeant Todd testified that he was present during all of the periods of interrogation of Dyson and that neither he nor anyone else made threats or promises to Dyson or offered him any inducements to confess. This testimony, undenied by the appellant at the trial, persuaded Judge Harris that the statement had been made voluntarily and he admitted it into evidence and submitted the question of its voluntariness to the jury under proper and appropriate instructions. He was justified in so doing. The State was not required to offer the testimony of all the policemen who were present when the statement was made. The testimony of Officers Stanley and Todd was the product of personal observation and knowledge, covered all critical periods from arrest to the making of the statement, was not controverted by the accused and, if believed, was proof that the statement was in fact voluntary. Streams v. State, Md., 208 A.2d 614, and cases cited.

The arrest of Dyson would clearly seem to have been on suspicion that he had committed a misdemeanor, simple assault, on Delores Cannaday, and was therefore illegal. In Maryland a statement voluntary in fact is not made inadmissible merely because it was given after an illegal arrest, without the advice of counsel and without the advice of the interrogator of the right to remain...