Joyner v. State

• Decision Date: 03 October 1969
• Docket Number: No. 23,23
• Citation: 257 A.2d 444,7 Md.App. 692
• Parties: Leslie Hugh JOYNER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 692

7 Md.App. 692

257 A.2d 444

Leslie Hugh JOYNER, Jr. v. STATE of Maryland.

No. 23.

Court of Special Appeals of Maryland.

Oct. 3, 1969.

Certiorari Denied March 10, 1970.

LeRoy W. Carroll, Baltimore, with Milton B. Allen, Baltimore, on the brief, for appellant.

James F. Truitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Fred K. Grant, Asst. State's Atty. for Baltimore City respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

Twenty-eight indictments came on for trial in the Criminal Court of Baltimore under which the appellant was charged with offenses against the person and property of some eighteen women and a man. Upon trial by the court he was convicted of the rape (indictment no. 4990) and petit larceny of the goods (indictment no. 4991) of Barbara Ann Gregory; of the rape (indictment no. 4899) of Johnnie Mae Jones and the daytime breaking of her house with intent to steal (indictment no. 4997); of perverted sexual practice with (indictment no. 4998) and the armed robbery of Myrtle Brown (indictment no. 4902); of the armed robbery (indictment no. 4898) of Hattie Cockrell; of the rape (indictment no. 4901) of Gloria A. Lee and, in connection with that offense, of being a rogue and vagabond (indictment no. 4996). By the sentences imposed the appellant was to be imprisoned for the balance of his natural life plus thirty-five years. ¹

THE IN-COURT IDENTIFICATIONS

The appellant contends that the judgments as to those crimes involving Gloria A. Lee, Hattie Cockrell and Myrtle Brown should be reversed because his pre-trial motion to exclude the in-court identifications of him as the criminal agent was not granted. The grounds for the motion were that a lineup at which he was confronted by the witnesses was illegal and that the witnesses had no independent source of their identification of him. The motion was not determined prior to trial. On the day of trial defense counsel brought the motion to the attention of the court with the suggestion that the matter be deferred for determination at the trial of the general issue. Although it appeared that the State desired that the issue be determined preliminarily, the court followed the suggestion of the defense. See Md.Rule 725 d. As part of its case the State adduced the positive in-court identification of the appellant by Gloria Lee, Myrtle Brown and Hattie Cockrell, each of them asserting that the appellant was the perpetrator of the crimes against her. Geraldine McDowell also made a positive in-court identification of the appellant as the person who robbed Hattie Cockrell. The State offered no evidence of an extrajudicial identification of the appellant. See Smith and Samuels v. State, 6 Md.App. 59, 67-70, 250 A.2d 285. On cross-examination of Gloria Lee, Myrtle Brown, Hattie Cockrell and Geraldine McDowell, however, defense counsel elicited that each of them had attended a lineup at which she had identified the appellant. The defense offered two witnesses on the limited issue of the legality of the lineup-the appellant and Detective Sergeant George C. Shriner who conducted it. The substance of the appellant's testimony was that when the police informed him on the day he was arrested that he would be placed in a lineup about 2:00 P.M. that day he made abundantly clear to them that he desired the presence of his lawyer at the lineup. He telephoned Roland Walker, Esq.-'at this particular time he was supposed to be representing me'- and on being informed that Walker would be in court and could not attend at the time the lineup was scheduled, so informed the police who told him, 'Well, you go in a lineup at 2:00. You are going in a lineup.' The police called several people, informing them there would be a lineup at 2:00 P.M. The appellant called Walker again and was told, 'You can't do nothing about it. (The police) will keep on insisting that you go. Just keep on insisting that you are not going to go in the lineup.' He requested a postponement of the lineup because his lawyer could not be there and was told there would be no postponement, 'The lineup was going on as scheduled.' He kept insisting that he did not want to appear in a lineup without a lawyer to the moment he was taken to the door of the lineup room when he was pushed in and told, 'You are going in there.' The lineup was held at 3:00 P.M. which the appellant said was about three hours after he was taken in custody. He did not sign a waiver of his right to counsel. On cross-examination he said he did not request another lawyer after he learned that Mr. Walker could not be present.

The police 'lineup sheet' was introduced in evidence through Sergeant Shriner. It showed that the lineup was held at Detective Headquarters at 3:00 P.M. on 27 September 1967; that five men were in the lineup, giving their descriptions and describing their clothing; that twelve women had viewed the lineup; that nine of them, including Gloria Lee, Hattie Cockrell, Myrtle Brown and Geraldine McDowell, had made a positive identification of the appellant and the time each identification was made; and that the position of the appellant in the lineup had been changed after the appearance of the ninth witness. Shriner described the room in which the lineup was held and the manner in which it was conducted. On cross-examination it was elicited that he had advised the appellant as to his right to the presence of counsel at the lineup, reading from 'a standard form, * * * that he may be represented by counsel, and if he did not have a counsel we would have one appointed for him. He stated to us that a Mr. Walker would represent him. * * * He called Mr. Walker: Mr. Walker was notified that he was going to be in a lineup at such-and-such a time. And this is what we indicated to him after reading the waiver to appear in a lineup. Mr. Walker was duly notified by us that his client would be in a lineup. He made the first call and at a later time a second call was placed to Mr. Walker. Mr. Walker also advised him.' Shriner stated that counsel representing the appellant was not present at the lineup.

On this evidence the court denied the motion to exclude the in-court identifications, holding, as we construe its comments, that the lineup was legal.

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 affects the instant case as the lineup was held after 12 June 1967, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and as its rules and those of Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, apply to a lineup conducted before indictment as well as after indictment. Palmer v. State, 5 Md.App. 691, 696, 249 A.2d 482. Thus the appellant had the absolute constitutional right to the presence of counsel at the lineup. We said in Palmer, at 693, 249 A.2d at 484, 'The basic principle enunciated in Wade is that a lineup is a critical stage of the prosecution at which the accused is as much entitled to aid of counsel as at the trial itself. 388 U.S. 236 (87 S.Ct. 1926, 18 L.Ed.2d 1149).' ² 'Of course, an accused may waive this right. It is stated in Wade, 388 U.S. at 237, 87 S.Ct. at 1937, 'Counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver'. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.' Carnley made clear that when the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. 369 U.S. at 513, 82 S.Ct. 884. The standard of proof of waiver of the right to counsel is that laid down in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and the principles declared in Johnson are equally applicable to asserted waivers of the right to counsel in state criminal proceedings. 369 U.S. at 515, 82 S.Ct. 884. The Court said in Johnson, 'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' 304 U.S. at 464, 58 S.Ct. at 1023. The right must be competently and intelligently waived. See Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435.

We have no difficulty here in finding that the evidence before the lower court was not sufficient for it to determine that the appellant waived his right to counsel at the lineup. The police apparently proceeded under the theory that if the appellant was informed of his right to the presence of counsel and that if a lawyer desired by the appellant was notified that a lineup was to be held this was all that was required. But they knew that the appellant did not want to appear in the lineup without the presence of counsel and that the appellant could not obtain the presence of counsel at the lineup at the time it was scheduled. In the circumstances, their proceeding to conduct the lineup when they did was not in compliance with the Wade requirements. At the least, they should have postponed the lineup for a reasonable time to make possible the appearance of a lawyer for the appellant or, perhaps, if such postponement would in fact have been prejudicial to the State, provided a substitute counsel. ³ As the presence of counsel was a requisite to the conduct of the lineup, as counsel was not present when the lineup was conducted, and as the appellant did not waive his right to counsel, we hold that the confrontation at the lineup of the appellant by the identifying witnesses was illegal. ⁴

Wade and Gilbert fashioned exclusionary rules as to evidence of identification made at an illegal confrontation. We set them out in Smith and Samuels v. State, supra, 6 Md.App. at 65, 250 A.2d at 289:

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