Jones v. Director, Patuxent Institution

• Decision Date: 01 December 1972
• Docket Number: Civ. A. No. 70-1061-W.
• Citation: 351 F. Supp. 913
• Parties: Albert Darrell JONES, Petitioner, v. DIRECTOR, PATUXENT INSTITUTION, Respondent.
• Court: U.S. District Court — District of Maryland

351 F. Supp. 913

Albert Darrell JONES, Petitioner, v. DIRECTOR, PATUXENT INSTITUTION, Respondent.

Civ. A. No. 70-1061-W.

United States District Court, D. Maryland.

December 1, 1972.

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COPYRIGHT MATERIAL OMITTED

Charles F. Morgan, Asst. Director, Prisoner Assistance Project, Legal Aid Bureau, Inc., Baltimore, Md., for petitioner.

Francis B. Burch, Atty. Gen., and John P. Stafford, Jr., Asst. Atty. Gen., Baltimore, Md., for respondent.

WATKINS, District Judge.

OPINION AND ORDER

Petitioner, presently a patient at Patuxent Institution, Jessup, Maryland, seeks habeas corpus relief in this Court.

Two petitions were submitted to this Court requesting relief for Jones. The petition as submitted by Jones, pro se, alleged two conviction issues—tainted identification and prejudicial remarks— along with numerous claims pertaining to his confinement. The petition submitted on Jones' behalf by the Legal Aid Bureau did not refer to any confinement issues but rather was limited to the conviction issues just stated. On January 3, 1972, the law clerk for this Court received from Jones a letter stating "that I want to withdraw all Petition and papers Concerning the Patuxent Institution only. Mr. Dibble now I pray that this Court will hear my Petition Concerning my original Conviction the issue in that Petition are (1) tainted identification (2) prejudicial Statement." Accordingly, this Court will construe the letter as a final amendment to the original petition—already amended numerous times by Jones—and will limit the discussion to the two conviction claims set out above.

Petitioner was convicted in the Criminal Court of Baltimore, Maryland, before Judge Solomon Liss and a jury in a trial on October 20-25, 1969 and sentenced to serve 10 years. On direct appeal, petitioner (among other things) claimed, as he does here, (1) that the two judicial identifications were so tainted by pretrial confrontations of him by the identifying witnesses as to render the in-court identification inadmissable and (2) that certain remarks of the trial judge were so prejudicial as to necessitate a new trial. The Court of Special Appeals of Maryland found that petitioner's pretrial motion to suppress the judicial identification was denied and that when the identification evidence was introduced at trial no objection was made. With the case in this posture that Court found the question of admissability to have been waived. As to any prejudicial remarks made by the trial judge,¹ the Court of Special Appeals found no error since "appellant received everything of the trial court that he requested and there is nothing before us preserved for review. Rule 1085. In any event in the light of the prompt caution of the jury we see no prejudice." Jones v. State, 9 Md.App. 455, 460, 265 A.2d 271, 274 (1970).

THE ALLEGED PREJUDICIAL REMARKS

This Court concludes on the entire record that the findings of facts and conclusions of law by the Court of Special Appeals are correct with respect to any alleged prejudicial remarks made by the trial judge. For the law to be different would certainly be an anomaly since it would afford the defendant the opportunity "to have his cake and eat it too." The defendant could reject the trial judge's overtures for a mistrial after a possible judicial misstatement and instead request cautionary instructions to the jury, but then, if the verdict was unfavorable he could seek to have it reversed based upon the alleged prejudicial remarks. This would place the defendant in the all too favorable position of gambling on the first trial knowing that if he loses he will have a second. See Terry v. Peyton, 433 F.2d 1016, 1020 (4 Cir. 1970) (a habeas corpus proceeding is not "an opportunity to challenge evidence and tactics earlier deemed by trial counsel to be unobjectionable and sound".); United States v. Gomez, 457 F.2d 593 (4 Cir. 1972).

THE IDENTIFICATION—PETITIONERS' CONTENTIONS

At first glance, dismissal of the claim of an alleged tainted judicial identification does not lend itself to an easy solution. With respect to this claim, petitioner contends, generally:

"that (1) the testimony of Mrs. Anjulis and Mrs. Patti that they had identified Petitioner at the preliminary hearing should have been per se excluded and that (2) the judicial identification by Mrs. Anjulis and Mrs. Patti should also have been inadmissible in evidence absent the government's showing of an independent source or harmless error. Petitioner's claim is based on the fact that under all of the circumstances surrounding it, the pre-trial confrontation at the preliminary hearing was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny Petitioner due process of law." Petitioner's brief as submitted by Legal Aid at p. 11.

"Furthermore, the State can show no factors which could support a finding that the identifications by Mrs. Anjulis and Mrs. Patti had a source independent of the illegal preliminary hearing. See United States v. Wade, supra 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Finally, it cannot be argued that the admission of the identification evidence was `harmless error' since the only evidence introduced that is sufficient to support a conviction was the identification of Petitioner by the two bank tellers. See Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)." Petitioner's brief as submitted by Legal Aid at 18.

An examination of the brief as submitted by Legal Aid's Prisoner Assistance Project discloses that this Court must consider eighteen issues:

(1) that it is "likely" that the photograph of petitioner was among those photographs shown to the tellers;

(2) that the tellers "collaborated" prior to giving their testimony about the lineup, and that neither teller could explain her failure to identify the petitioner in the lineup;

(3) that the trial judge at the suppression hearing apparently "analogized what happened at the preliminary hearing to a lineup" in that there were several black men before the judge at the preliminary hearing when the petitioner was identified and that this was similar to a lineup;

(4) that the identification was improper since it was based on a single physical characteristic;

(5) that with respect to Mrs. Patti's identification an unfair confrontation took place and the State intended that an identification be made since the State was saying at the preliminary hearing "that's the man";

(6) that petitioner was prejudiced by being brought to the preliminary hearing in custody;

(7) that Mrs. Patti's testimony about a "goatee" on petitioner indicates a misidentification;

(8) that there are dangers when a long period of time has elapsed between the robbery and the identification;

(9) that the observations that Mrs. Patti and Mrs. Anjulis had of the robber make it unlikely that either of them could recall his appearance three months later;

(10) that the totality of the circumstances prejudiced Mrs. Patti's pretrial and in-court identification;

(11) that it is improper to allow a conviction to stand where one of two eyewitnesses' testimony was improperly admitted;

(12) that Mrs. Anjulis' testimony concerning the pretrial identification was improperly admitted;

(13) that Mrs. Anjulis' confrontation with the petitioner at the lineup and preliminary hearing was unconstitutional and that the time delay between the robbery and the identification was too long and that she did not have an adequate observation of the robber;

(14) that Mrs. Patti pressured Mrs. Anjulis into identifying petitioner (15) Mrs. Anjulis' in-court identification was unconstitutional;

(16) that, if the Court of Special Appeals for Maryland had not concluded that petitioner waived the identification claims and had considered the merits of the case, it would have found the pretrial identification to have been improper;

(17) that the State can show no factors which could support a finding that the identifications made by the tellers had a source independent of the pretrial confrontations; and

(18) that it cannot successfully be argued that the admission was harmless error.

THE IDENTIFICATION— SUMMARY

In support of his claim of a tainted judicial identification, petitioner has submitted his copy of the transcript of the pretrial evidentiary hearing to suppress the in-court identification, and the trial transcript. This Court has read the transcripts and finds as a fact and concludes as a matter of law that petitioner received a full and fair evidentiary hearing and, for the reasons hereinafter stated, the record contains substantial evidence fully supporting his convictions. Boblit v. Warden, Maryland Penitentiary, 350 F.Supp. 768 (D.Md. 1972). Therefore, this allegation is without merit.

Briefly, the petitioner contends that any identification testimony at trial was tainted by two pretrial confrontations he had with the two bank tellers, Mrs. Anjulis and Mrs. Patti, of the bank he is accused of robbing. The first confrontation occurred at his lineup conducted on the evening of his arrest, three and a half months after the robbery. Mrs. Anjulis failed to identify him and Mrs. Patti identified someone else. The following morning at the preliminary hearing Mrs. Patti identified petitioner spontaneously as he was brought in custody into the courtroom and Mrs. Anjulis first recognized him when he was before the judge for the hearing. Both witnesses later identified petitioner at trial where a boy, William Silver, testified that he saw Jones shortly after the robbery drop a quantity of money on the ground when the petitioner was asking three men from Morton's Movers for a ride. Some of the money was later recovered by the police from the boy and the three men and it was identified as part of that stolen from the bank. On these facts petitioner contends that the pretrial identifications were so impermissibly suggestive as to deny him due process of...