Jackson v. State, 672

• Decision Date: 01 September 1971
• Docket Number: No. 672,672
• Citation: 13 Md.App. 31,280 A.2d 914
• Parties: Melvin Augustus JACKSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 31

13 Md.App. 31

280 A.2d 914

Melvin Augustus JACKSON v. STATE of Maryland.

No. 672.

Court of Special Appeals of Maryland.

Sept. 1, 1971.

Saul J. McGrane, Hyattsville, for appellant.

Josef Rosenblatt, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Edmond B. O'Connell, Asst. State's Atty., for Prince George's County, on brief, for appellee.

Argued before THOMPSON, MOYLAN and CARTER, JJ.

CARTER, Judge.

The appellant was convicted by the Circuit Court for Prince George's County, sitting without a jury, of armed robbery and sentenced to ten years in prison. He appeals from this judgment claiming that the trial court committed reversible error because: (1) it improperly admitted in evidence both a judicial and an extrajudicial photographic identification of him in violation of the due process clause of the Fourteenth Amendment, and (2) it improperly admitted a confession in evidence.

The record shows that on November 7, 1969, Mr. Cole, the clerk at Broadway Decorators in Prince George's County, was in the process of placing approximately $1700 in pay envelopes for distribution of the Company payroll when two men walked into the establishment. One of the men brandished a gun, ordered Cole to put up his hands, and directed Mr. DeSarno, a partner in the business and two other employees to lie on the floor. The gunman then ordered his associate to take possession of the money, which was accomplished and the robbers departed. DeSarno testified that the man with the gun was wearing a french beret and had the lower part of his face, from his eyes down, covered with a bandana. He further stated that he was within five feet of this person for approximately ten to fifteen minutes during the robbery, was able to get a good look at him, and recognized him as the person he had seen in his place of business some half a dozen times immediately prior to the robbery with one Albert Douglas, his former employee. ¹ On the day of the crime, the police showed DeSarno several hundred pictures from the mug books at police headquarters, none of which could be identified by him. On January 7, 1970, the police showed him seven black and white photographs of Negro males from which he identified the appellant and his brother as resembling the gunman, but did not then make a positive identification. On March 2, 1970, immediately following indictment of the appellant and his brother, DeSarno was shown fifteen color photographs of Negro males from which he made a positive identification of the appellant as the gunman who committed the robbery.

Promptly after indictment, the appellant was arrested, taken to the County jail and placed in a cell with his co-defendant brother. When the brother saw him, he exclaimed in the presence of others, 'That's the one that got me locked up. That's my brother.' Soon after the appellant was placed in the cell with his brother, both he and his brother sent for Detective Daniels, who promptly arrived at the County jail. Upon his arrival, the Detective was informed by the appellant that he wished to talk to him about his brother not being implicated in the robbery. Within less than an hour thereafter, the appellant gave a verbal statement to the Detective, implicating himself in the crime and exonerating his brother from any participation. The statement was made in the presence of the brother who had been upset about being charged with the crime. A full explanation of the constitutional rights of the appellant was made to him in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, after which he stated he understood these rights, read and signed the warning card containing them, and agreed to make and did make the statement that was admitted in evidence over objection.

I.

The appellant contends that the extrajudicial identification made in selecting a photograph of him was so unnecessarily suggestive and conducive to irreparable mistaken identity as to deny him due process of law. We find nothing in the record even remotely indicating impermissible suggestiveness in showing the photographs to DeSarno. The mere fact that DeSarno was unable to make a positive identification until he had viewed well over a hundred photographs obviously does not per se taint the photographic identification finally made by him. Nor do we find merit in appellant's claim that the photographic identification was inadmissible in evidence because the trial judge, sitting as the trier of fact, did not have before him, for comparison purposes, any of the other photographs shown to DeSarno. The burden, of course, rests with the appellant to establish prima facie that the procedure employed in showing the photographs was so unnecessarily suggestive as to likely produce irreparable misidentification. Appellant did not meet that burden and we find no error in the admission of the extrajudicial identification in evidence. Since the extrajudicial identification was legal, it could not constitutionally taint the judicial identification. Moreover, we note, as did the trial judge, that DeSarno had seen appellant six times in his place of business prior to the crime and that even though appellant was partially masked, he closely observed him for approximately fifteen minutes and thereby recognized him. Under these circumstances, that the in-court identification was independent of the photographic identification would seem clear. ²

II.

In regard to the free and voluntary character of the appellant's confession, the record shows...