Foster v. State

• Decision Date: 26 July 1974
• Docket Number: No. 267,267
• Citation: 272 Md. 273,323 A.2d 419
• Parties: Stephen Patrick FOSTER and George Forster v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 273

272 Md. 273

323 A.2d 419

Stephen Patrick FOSTER and George Forster v. STATE of Maryland.

No. 267.

Court of Appeals of Maryland.

July 26, 1974.

Thomas G. Bodie, Assigned Public Defender, Towson, for appellants.

Donald R. Stutman, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

At about 8:35 P.M., February 1, 1973, Herbert D. Siegel and his wife got out of their automobile in the driveway of their home at 3318 Old Post Drive. Siegel remained to lock the car, his wife advanced toward the entrance of the home; as Siegel walked around the car he heard the footsteps of a person running and a voice which yelled, 'Hold it, hold it, hold it.' Turning, he saw a 'tall, slender-built young man, whose features were 'muffled'-as if covered by a stocking-pointing a rifle of shotgun from a distance of ten or twelve feet.' A second man, within four or five feet of him, from across the hood of the car commanded him to turn over his wallet; when the wallet was placed on the hood of the car the unarmed assailant directed the removal of any money from the wallet and Siegel, across the hood of the car, handed over approximately $35.00.

The evening was fairly misty and foggy; although there no street lights on Old Post Drive, two outside post-lights were burning on the Siegel property, as were the lights on his neighbors' properties. The assailant to whom he had given the money and whose features he saw was 'of medium build, approximately 5 9 to 5 10 in height, with long, dark hair and a black moustache.'

After being assured by Siegel that he had no more money, the robbers fled afoot westward toward the adjacent Stevenson Village Apartments. Mrs. Siegel promptly phoned the police and Siegel gave a description of his assailants over the phone. Within five minutes Siegel repeated the description to a county police officer who arrived at the home.

Officer Hojnowski, cruising in a police car in the vicinity of Old Post Road, at 8:39 P.M. heard over the police radio a report of the robbery and a description of two white males running afoot toward the Stevenson Village Apartments. As he drove toward the apartments he noticed a 1969 Chevrolet containing two front-seat occupants driving westward on Old Post Road. Reversing the course of his police car and activating his signal he stopped the automobile on Old Post Road approximately 150 feet eastward of Stevenson Road. Alighting from the vehicle as the officer approached, the operator, unsolicitedly, asked if there was 'any trouble', stating that he 'was lost.' In addition to a white female seated on the right front seat the officer observed another white male 'slouched down'-practically on the rear floor of the vehicle. The appellant Forster identified himself as the operator of the vehicle which was owned by the female passenger. The man 'slouched' on the rear floor (Foster) did not then identify himself.

Cpl. Litchfield, having heard over his police radio that the vehicle had been stopped by Officer Hojnowski, went to the Siegel residence, advised Siegel that the police had stopped a 'suspect vehicle' and requested that Siegel accompany him to where the vehicle was stopped-about one block westward from the Siegel home. En route there was no conversation between Siegel and the corporal concerning the identity of the assailants-Siegel spoke about his combat experiences as a naval officer, but that he had never before had a gun pointed directly at him. When they arrived at the stopped vehicle there were four police cars parked in the vicinity.

Siegel testified that when he was requested to accompany the police to the scene of the stopped vehicle he was told that they had 'picked up two people that may fit the description (which he gave) and would he come to try to identify them' that when he confronted the persons at the stopped automobile-within approximately ten minutes of the robbery-he could have given a positive identification at that time of the man to whom he had handed the money-had he been there so asked by the police, but the police were concerned 'about securing the rights of the alleged suspects.' He further testified that 'the dark haired one to whom he had handed the money was there, standing, looking right at him.' Siegel also testified that the other man, the taller man, was 'slouching on the fender of the (stopped) car.' It was only after he arrived at the Garrison Police Station that the officers took a report from him concerning his identification. He made an in-court identification of the appellant Foster, sans moustache. He could not positively identify the appellant Forster, by his features, but in height stated that he was similar to the assailant who held the gun on him.

After Siegel had testified, counsel for the appellants moved to strike his testimony as to the in-court identification 'under the case of Stovall v. Denno' and the motion was denied.

Although Cpl. Litchfield testified that at the confrontation scene Siegel stated that the clothing worn by Foster fit the clothing worn by the subject who held him up, and that the physical features of the subjects were the same, he did not there make a positive identification, Officer Nash testified that Siegel stated at the scene that Foster definitely looked like the man to whom he had handed the money and, from the physical build of Forster, he was the one who had held the gun.

After the appellants were placed under arrest a search of the trunk of the vehicle with the consent of the owner-passenger revealed a .12 gauge shotgun and a box of shotgun shells.

From their convictions of robbery with a dangerous and deadly weapon following a non-jury trial in the Circuit Court for Baltimore County (Raine, J.) and the sentences imposed thereon, each appellant appealed. In an unreported per curiam, Foster and Forster v. State (No. 188, Sept Term, 1973, decided November 12, 1973), the Court of Special Appeals affirmed their convictions and on the authority of that court's holdings in Billinger v. State, 9 Md.App. 628, 267 A.2d 275, cert. denied, 259 Md. 729 (1970), rejected the contention made that the identification procedure employed by the police was improper. We granted a writ of certiorari limited to the issue of whether the identification procedure followed by the police at the time the appellants were apprehended was proper. We affirm.

In Basoff v. State, 208 Md. 643, 119 A.2d 917 (1956), our predecessors established as an evidentiary test for the admissibility of an extra-judicial identification, circumstances 'precluding suspicion of unfairness or unreliability.' See also Johnson v. State, 237 Md. 283, 289, 206 A.2d 138 (1965); Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960); Judy v. State, 218 Md. 168, 146 A.2d 29 (1958). See also Annot., 71 A.L.R.2d 449 (1960).

In 1967 the United States Supreme Court in a trilogy of opinions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, brought the test of the admissibility of such extra-judicial identifications within the protection of the sixth and fourteenth amendments to the United States Constitution. In both Wade and Gilbert the Court held that a post-indictment line-up was a 'critical stage' of the proceedings which, when conducted without notice to, or the presence of, counsel was in violation of the defendant's right to counsel under the sixth amendment. The Court held in Wade that it was error to have admitted an in-court identification without first determining whether such identification was tainted by the illegal line-up procedure, or had an origin independent thereof.

In Wade Mr. Justice Brennan, who delivered the majority opinion for the Court, wrote:

'But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.' Id. 388 U.S. at 228, 87 S.Ct. at 1933.

In reasoning that the respondent's rights under the sixth amendment were violated, he stated:

'Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) . . . as at the trial itself." Id. 388 U.S. at 236-237, 237, 87 S.Ct. at 1937. (Footnote omitted.)

In Gilbert the Court found: 'The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, supra.' Id. 388 U.S. at 272, 87 S.Ct. at 1956. Again, Mr. Justice Brennan, for the majority, stated:

'Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence.' Id. 388 U.S. at 273, 87 S.Ct. at 1957.

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